8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): December 29, 2023

PINSTRIPES HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

Delaware	001-41236	86-2556699
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

1150 Willow Road

Northbrook, IL 60062

(Address of principal executive offices)

(847) 480-2323

(Registrant’s telephone number, including area code)

Banyan Acquisition Corporation

400 Skokie Blvd

Suite 820

Northbrook, Illinois 60062

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Class A common stock, par value $0.0001 per share	PNST	New York Stock Exchange
Redeemable Warrants, each exercisable for one share of Class A common stock at an exercise price of $11.50 per share	PNST.WS	New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2).

Emerging growth company x

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

Introductory Note

On December 29, 2023 (the “Closing Date”), the registrant consummated the previously announced business combination (the “Closing”) pursuant to the Business Combination Agreement, dated as of June 22, 2023 (as amended and restated as of September 26, 2023 and November 22, 2023, the “Business Combination Agreement”), by and among Banyan Acquisition Corporation, a Delaware corporation (“Banyan”), Panther Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Banyan (“Merger Sub”), and Pinstripes, Inc., a Delaware corporation (“Pinstripes”). The transactions contemplated by the Business Combination Agreement are collectively referred to herein as the “Business Combination.” On the Closing Date, Merger Sub merged with and into Pinstripes (the “Merger”), with Pinstripes surviving the Merger as a wholly-owned subsidiary of Banyan (the date and time that the Merger becomes effective being referred to as the “Effective Time). On November 28, 2023, Banyan filed with the SEC an amended Registration Statement on Form S-4 (the “Registration Statement”), which included a preliminary proxy statement and prospectus of Banyan and preliminary consent solicitation statement of Pinstripes in connection with the Business Combination and related matters as described in the Registration Statement. The Registration Statement was declared effective on December 4, 2023, and on December 5, 2023, Banyan filed with the SEC the definitive joint proxy statement/consent solicitation statement/prospectus, which was mailed or delivered, as applicable, together with other relevant documents, to the respective stockholders of Banyan and Pinstripes (the “definitive joint proxy statement/consent solicitation statement/prospectus”).

In connection with the Business Combination, among other things, (i) Banyan has been renamed “Pinstripes Holdings, Inc.,” (ii) each of the then-issued and outstanding shares of Class A common stock, par value $0.0001 per share, of Banyan (the “Banyan Class A Common Stock”), other than the Vesting Shares (as defined below), continued as a share of Class A common stock of the Company, par value $0.0001 per share (“Class A Common Stock”), (iii) each of the then-issued and outstanding shares of Class B common stock, par value $0.0001 per share, of Banyan (the “Banyan Class B Common Stock” and, together with the Banyan Class A Common Stock, the “Banyan Common Stock”) other than the Vesting Shares, converted, on a one-for-one basis, into a share of Class A Common Stock, (iv) 915,000 of the then-issued and outstanding shares of Banyan Common Stock held by Banyan Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”), George Courtot, Bruce Lubin, Otis Carter, Kimberley Annette Rimsza, Matt Jaffee and Brett Biggs (together with the Sponsor, the “Sponsor Holders”) that are subject to forfeiture and/or vesting on the basis of achieving certain trading price thresholds following the Closing pursuant to the Business Combination Agreement (the “Vesting Shares”) converted, on a one-for-one basis, into shares of Series B-1 common stock, par value $0.0001 per share of the Company (the “Series B-1 Common Stock”), and 915,000 of the Vesting Shares converted, on a one-for-one basis, into shares of Series B-2 common stock, par value $0.0001 per share of the Company (the “Series B-2 Common Stock”), (v) each then-issued and outstanding whole warrant exercisable for one share of Banyan Class A Common Stock become exercisable for one share of 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), and (vi) the Sponsor Holders forfeited an aggregate of 1,018,750 shares of Banyan Common Stock, which were re-issued as Class A Common Stock to certain investors in Banyan who agreed not to redeem their respective shares of Banyan Class A Common Stock in connection with Banyan’s extension meeting held on April 21, 2023 and also forfeited an additional aggregate of 1,242,975 shares of Banyan Common Stock as discussed further below. Additionally, The public units of Banyan automatically separated into the component securities upon consummation of the Business Combination and, as a result, no longer trade as a separate security.

Immediately prior to the Effective Time, each outstanding share of Pinstripes preferred stock (other than the Series I Convertible Preferred Stock, as defined below) automatically converted into shares of Pinstripes common stock, par value $0.01 per share (“Pinstripes Common Stock”), in accordance with the governing documents of Pinstripes, and each warrant and convertible note of Pinstripes was automatically exercised for, or converted into, shares of Pinstripes Common Stock. At the Effective Time, each share of Pinstripes Common Stock (including as a result of the warrant exercises and convertible note conversions specified above, but excluding any dissenting shares and cancelled treasury stock and shares of Pinstripes Common Stock issued in connection with the conversion of the Series I Convertible Preferred Stock (as defined below) of Pinstripes), was automatically cancelled and extinguished and converted into the right to receive shares of Class A Common Stock, determined in accordance with the Business Combination Agreement, at an exchange ratio of approximately 1.85 shares of Class A Common Stock for each share of Pinstripes Common Stock (the “Exchange Ratio”). In addition, the holders of the outstanding shares of Pinstripes Common Stock immediately prior to the closing of the Business Combination (excluding holders of common stock issued in connection with the conversion of the Series I Convertible Preferred Stock of Pinstripes) received an aggregate of 2,500,000 shares of Series B-1 Common Stock, 2,500,000 shares of Series B-2 Common Stock and 4,000,000 shares of Series B-3 Common Stock, par value $0.0001 per share of the Company (the “Series B-3 Common Stock, and, together with the Series B-1 Common Stock and Series B-2 Common Stock, the “Class B Common Stock”), in each case, pro rata based upon each such holder’s entitlement to consideration in connection with the Merger. The Class B Common Stock is subject to the vesting and forfeiture conditions and restrictions on transfer as implemented in the Second Amended and Restated Certificate of Incorporation of the Company and as further described in Item 3.03. In addition, the Sponsor Holders forfeited 1,242,975 shares of Banyan Common Stock, which shares were re-issued to holders of shares of Pinstripes Common Stock outstanding immediately prior to the Closing as Class A Common Stock, pro rata based upon each such holder’s entitlement to consideration in connection with the Merger. Further, each option (whether vested or unvested) to purchase shares of Pinstripes Common Stock that was outstanding as of immediately prior to the Effective Time was converted into an option to purchase a number of Class A Common Stock based on the Exchange Ratio.

Each outstanding share of Pinstripes Common Stock received upon conversion of Series I Convertible Preferred Stock of Pinstripes (the “Series I Convertible Preferred Stock”), including accrued dividends thereon, was automatically cancelled and extinguished and converted into the right to receive shares of Class A Common Stock determined in accordance with the Business Combination Agreement, based on an exchange ratio of approximately 2.6 shares of Class A Common Stock for each share of Pinstripes Common Stock. In addition, the Sponsor Holders forfeited 507,025 shares of Banyan Common Stock, which shares were re-issued to holders of the Series I Convertible Preferred Stock as Class A Common Stock, pro rata based upon each such holder’s entitlement to consideration in connection with the Merger.

Also on December 29, 2023, immediately following consummation of the Business Combination, Pinstripes and the registrant entered into a Loan Agreement (the “Oaktree Loan Agreement”) with Oaktree Fund Administration, LLC, as agent (the “Agent”) and the lenders party thereto (the “Lenders), providing for a term loan of $50.0 million to Pinstripes (the “Tranche 1 Loan”). In connection with the closing of the Tranche 1 Loan, the Lenders were granted fully detachable warrants exercisable for an aggregate of 2,500,000 shares of Class A Common Stock, at an exercise price of $0.01 per share (the “Tranche 1 Warrants”). Also on December 29, 2023, immediately following the consummation of the Business Combination, Pinstripes borrowed an additional $5.0 million under the Loan Agreement, dated as of March 7, 2023 by and among Pinstripes, Inc., Silverview Credit Partners LP, and other institutional investors from time to time (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Silverview Loan Agreement”).

Prior to the special meeting of Banyan stockholders to approve the Business Combination and other related matters (the “Special Meeting”), holders of 2,652,419 Class A Common Stock sold in Banyan’s initial public offering properly exercised their right to have their shares redeemed for a pro rata portion of the trust account holding the proceeds from Banyan’s initial public offering, calculated as of two business days prior to the Closing. As a result, on December 29, 2023, Banyan redeemed 2,652,419 shares of Class A Common Stock for $10.76 per share (the “public share redemptions”). Following the public share redemption, there was $346,545.63 remaining in Banyan’s trust account.

As of the Closing Date, following the public share redemptions and the giving effect to the Merger and the other transactions discussed above, the following securities of the Company were issued and outstanding: (i) 39,918,036 shares of Class A Common Stock, (ii) 3,415,000 shares of Series B-1 Common Stock, (iii) 3,415,000 shares of Series B-2 Common Stock, (iv) 4,000,000 shares of Series B-3 Common Stock, (iv) 23,985,000 Pinstripes Warrants (exercisable for 23,985,000 shares of Class A Common Stock) and (v) Tranche 1 Warrants exercisable for 2,500,000 shares of Class A Common Stock. The Class A Common Stock and Pinstripes Warrants commenced trading on the New York Stock Exchange (the “NYSE”) under the symbols “PNST” and “PNST WS,” respectively, on January 2, 2024. 

Unless the context otherwise requires, in this Current Report on Form 8-K, the “registrant,” the “Company,” “we,” “us” and “our” refer to Banyan prior to the Closing, and to Pinstripes Holdings, Inc. and, where appropriate, its subsidiaries following the Closing.

Item 1.01 Entry into a Material Definitive Agreement.

Oaktree Loan Agreement

On December 29, 2023, Pinstripes and the Company entered into the Oaktree Loan Agreement on terms substantially the same as those set forth in the non-binding term sheet disclosed in a current report on Form 8-K filed by Banyan on December 19, 2023 and closed the Tranche 1 Loan. The Oaktree Loan Agreement provides that:

· interest on the Tranche 1 Loan accrue on a daily basis calculated based on a 360-day year at a rate per annum equal to (i) 12.5% payable quarterly in arrears, at Pinstripes’ option either in cash or in kind (subject to certain procedures and conditions); provided that the interest payable in respect of any period following December 31, 2024, interest under this clause (i) will be required to be paid solely in cash, plus (ii) 7.5% payable quarterly in arrears, at Pinstripes’ option, either in cash or in kind (subject to certain procedures and conditions);

· the maturity date of the Tranche 1 Loan is December 29, 2028;

· the obligations of Pinstripes under the Tranche 1 Loan are unconditionally guaranteed (the “Guarantees”) by the Company and certain other subsidiaries of Pinstripes (collectively, the “Guarantors”);

· the obligations under the Tranche 1 Loan and the Guarantees are secured by a second lien security interest in substantially all assets of Pinstripes and the Guarantors, subordinate to the first lien security interests of the other senior secured lenders of Pinstripes, and including a pledge of the equity of Pinstripes;

· Pinstripes and the Guarantors are subject to certain financial covenants that require the Company and its subsidiaries to maintain a minimum specified total net leverage ratio, beginning on January 6, 2025 and thereafter throughout the term of the loan as follows:

January 6, 2025	6.00:1.00
January 7, 2025 – January 4, 2026	5.00:1.00
January 5, 2026 – January 3, 2027	4.50:1.00
January 4, 2027 – January 2, 2028	4.00:1.00
After January 2, 2028	3.75:1.00

· Pinstripes and the Guarantors are subject to negative covenants restricting the activities of Pinstripes and the Guarantors, including, without limitation, limitations on dispositions; mergers or acquisitions; incurring indebtedness or liens; paying dividends or redeeming stock or making other distributions; making certain investments; and engaging in certain other transactions;

· any prepayment of the Tranche 1 Loan prior to its maturity date will be subject to a customary “make-whole” premium calculated using a discount rate equal to the yield on comparable Treasury securities plus 50 basis points; and

· in connection with the Tranche 1 Loan Closing, the Lenders were granted fully detachable warrants exercisable for an aggregate of 2,500,000 shares of Class A Common Stock, at an exercise price of $0.01 per share (the “Tranche 1 Warrants”). In the event that the volume-weighted average price per share of Class A Common Stock during the period commencing on the 91st day after Tranche 1 Loan Closing and ending 90 days thereafter is less than $8.00 per share, the Lenders will be granted additional Tranche 1 Warrants exercisable for an aggregate of 187,500 shares of Class A Common Stock, and in the event that the volume-weighted average price per share of Class A Common Stock during the period commencing on the 91st day after Tranche 1 Loan Closing and ending 90 days thereafter is less than $6.00 per share, the Lenders will instead be granted additional Tranche 1 Warrants exercisable for 412,500 shares of Class A Common Stock. The Oaktree Loan Agreement further provides that (i) the Tranche 1 Warrants may be exercised at any time after the Tranche 1 Loan Closing, and prior to the date that is ten years from the Tranche 1 Loan Closing and (ii) subject to customary exceptions, the Lenders will agree not to transfer, assign or sell any Tranche 1 Loan Warrants, or the shares of Class A Common Stock underlying such Tranche 1 Loan Warrants, until 12 months after the Tranche 1 Loan Closing.

The Oaktree Loan Agreement also provides that the Lenders will have the option at their sole discretion and election, but not the obligation, subject to satisfaction of certain conditions, to fund an additional loan of $40.0 million (the “Tranche 2 Loans”) no earlier than nine months and no later than 12 months following the Tranche 1 Loan Closing. The Oaktree Loan Agreement provides that in connection with the funding of Tranche 2 Loans, the Lenders will be granted additional warrants exercisable for an aggregate of 1,750,000 shares of Class A Common Stock, at an exercise price of $0.01 per share (the “Tranche 2 Warrants” and, together with the Tranche 1 Warrants, the “Oaktree Warrants”) and that, in the event that the volume-weighted average price per share of Class A Common Stock during the period commencing on the 91^st day after the Tranche 1 Loan Closing and ending 90 days thereafter is less than $6.00 per share, the Lenders will instead be granted Tranche 2 Warrants exercisable for an aggregate of 1,900,000 shares Class A Common Stock, at an exercise price of $0.01 per share. The Oaktree Warrants will be exercisable on a cashless basis and the Company has agreed to register for resale of the shares of Class A Common Stock underlying the Oaktree Warrants.

The Oaktree Loan Agreement also provides that the Agent will have the right to either appoint a director to the Board of Directors of the Company (the “Board”) or an observer to the Board, at the election of the Agent. The Agent will initially appoint an observer to the Board.

Oaktree Continuing Guaranty Agreement and Pledge and Security Agreement

On December 29, 2023, Pinstripes and the Guarantors entered into a Continuing Guaranty Agreement (the “Oaktree Guaranty Agreement”) with the Agent, as collateral agent. Pursuant to the Guaranty Agreement, Pinstripes and Guarantors guaranteed the Obligations, as defined in the Oaktree Loan Agreement. On December 29, 2023, Pinstripes and the Guarantors entered into a Pledge and Security Agreement (the “Oaktree Pledge and Security Agreement”) with the Agent, as collateral agent. Pursuant to the Pledge and Security Agreement, Pinstripes and the Guarantors granted the Collateral Agent a security interest in substantially all of their assets, including but not limited to certain accounts, equipment, fixtures and intellectual property, in order to secure the payment and performance of all of the Obligations.

Silverview Loan Agreement Amendment and Joinder

On December 29, 2023, Pinstripes, the other guarantors party thereto, Silverview Credit Partners LP, as agent (“Silverview”), and the lenders party thereto entered into the Fifth Amendment (the “Silverview Fifth Amendment”) to the Silverview Loan Agreement and Second Amendment to Pledge and Security Agreement. On December 29, 2023 the Company also entered into that certain Omnibus Joinder (the “Siverview Joinder”) with Silverview pursuant to which the Company agreed to become a party to (i) that certain continuing Guaranty Agreement, dated Mach 7, 2023, among Pinstripes, the other guarantors defined therein, and Silverview and (ii) Pledge and Security Agreement, dated Mach 7, 2023 among Pinstripes and the other grantors (as defined therein). Pursuant to the Fifth Amendment, the Silverview Loan Agreement was modified to (x) permit the transactions contemplated in connection with the Business Combination, (y) permit the Tranche 1 Loan, subject to the terms of an intercreditor agreement between Silverview and Oaktree Fund Administration, LLC, and (z) conform the representations, warranties, and financial covenants owed by Pinstripes to Silverview to be substantially similar to those set forth in the Tranche 1 Loan. In connection with the Joinder, the Company has agreed to guarantee payment in full of the amounts owed by Pinstripes pursuant to the Silverview Loan Agreement and has granted a first lien security interest in and pledge of all shares of stock of Pinstripes held by the Company.

On December 29, 2023, Pinstripes also borrowed an additional $5.0 million pursuant to the Silverview Loan Agreement.

Granite Creek Loan Agreement Amendment and Joinder

On December 29, 2023, Pinstripes, GCCP II Agent, LLC, as agent (“Granite Creek”) and the lenders party thereto entered into Amendment No. 2 to (the “Granite Creek Amendment No. 2”) to the Term Loan and Security Agreement, dated as of April 19, 2023 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Granite Creek Loan Agreement”). On December 29, 2023 the Company also entered into that certain Guaranty (the “Granite Creek Guaranty”) with Granite Creek pursuant to which the Company has guaranteed payment of amounts owed by Pinstripes pursuant to the Granite Creek Loan Agreement. Pursuant to Amendment No. 2, the Granite Creek Loan Agreement was modified to (i) permit the transactions contemplated in connection with the Business Combination, and (ii) permit the Tranche 1 Loan, subject to the terms of an intercreditor agreement between Granite Creek and Oaktree Fund Administration, LLC.

Director Designation Agreement

On the Closing Date, the Company and Mr. Dale Schwartz, the chief executive officer of the Company, entered into a Director Designation Agreement (the “Director Designation Agreement”), pursuant to which, among other things, Mr. Schwartz will have the right to designate: (i) four directors for election to the Board so long as Mr. Schwartz or any trusts or family partnerships he controls (collectively, the “Schwartz Group”) beneficially own a number of shares (provided that no member of the Schwartz Group will be deemed to beneficially own any unvested Class B Common Stock) equal to at least 70% of the number of shares of Class A Common Stock the members of the Schwartz Group are issued in connection with the Business Combination, but excluding any unvested Class B Common Stock (the “Key Individual Shares”), (ii) three directors for election to the Board so long as the members of the Schwartz Group beneficially own a number of shares equal to at least 50% (but less than 70%) of the number of Key Individual Shares, (iii) two directors for election to the Board so long as the members of the Schwartz Group beneficially own a number of shares equal to at least 25% (but less than 50%) of the number of Key Individual Shares and (iv) one director for election to the Board so long as the members of the Schwartz Group beneficially own a number of shares equal to at least 10% (but less than 25%) of the number Key Individual Shares. Mr. Schwartz also has the right to designate a majority of the members of each committee of the Board for so long as Mr. Schwartz has the ability to designate at least four individuals for nomination to the Board. At all other times that Mr. Schwartz has the ability to designate at least one individual for nomination to the Board, Mr. Schwartz will have the ability to designate at least one-third, but in no event fewer than one, of the members of each committee. Additionally, the Company will not increase or decrease the size of the Board or amend or adopt new organizational documents, corporate policies or committee charters that might reasonably be deemed to adversely affect any of Mr. Schwartz’ rights under the Director Designation Agreement without the consent of Mr. Schwartz so long as Mr. Schwartz has the ability to designate at least one individual for nomination to the Board. Each of Mr. Schwartz’s designees (other than himself) must qualify as independent directors under the rules of the New York Stock Exchange (or, if not the New York Stock Exchange, the principal U.S. national securities exchange upon which the Class A Common Stock is then listed). Mr. Schwartz named Diane Aigotti as his director designee in Class I, Larry Kadis and Jack Greenberg as his director designees in Class II and Mr. Schwartz himself as his director designee in Class III (such classes being discussed under “Directors and Executive Officers” below).

A&R Registration Rights Agreement

On the Closing Date, the Company, the Sponsor Holders, Mr. Schwartz, the other executive officer and directors of the Company and certain other equityholders of the Company (collectively, the “Holders”) entered into an Amended and Restated Registration Rights Agreement (the “Registration Rights Agreement”), pursuant to which, among other things, the parties were granted customary registration rights with respect to the Class A Common Stock. Pursuant to the A&R Registration Rights Agreement, the Company is obligated to, among other things use its reasonable best efforts to file a registration statement on Form S-1 covering the resale of approximately 40,000,000 shares held by, or underlying other securities held, by the Holders by February 12, 2024, to use reasonable best efforts to cause such registration statement to become effective by April 12, 2024 and to thereafter use reasonable best efforts to maintain the effectiveness of such registration statement (subject to certain exceptions). The Registration Rights Agreements also includes other customary provisions, including shelf takedown and piggyback rights and as to indemnification and contribution of the Holders.

The above descriptions of the material terms of the Form of Tranche 1 Warrant, the Oaktree Loan Agreement, the Oaktree Guaranty Agreement, the Oaktree Pledge and Security Agreement, the Fifth Amendment, the Silverview Joinder, the Granite Creek Amendment No. 2, the Granite Creek Guaranty, the Director Designation Agreement and the Registration Rights Agreement, (collectively, the “Transaction Documents”) are qualified in their entirety by reference to the full text of the Transaction Documents, which are filed as Exhibits 4.2 and 10.1 through 10.9 to this Current Report on Form 8-K and are incorporated herein by reference.

Item 2.01 Completion of Acquisition or Disposition of Assets.

The disclosure set forth in the “Introductory Note” above is incorporated into this Item 2.01 by reference.

In addition, the material terms of the Business Combination are described in greater detail in the section of the definitive joint proxy statement/consent solicitation statement/prospectus titled “The Business Combination Proposal—The Business Combination Agreement” beginning on page 126, which information is incorporated herein by reference.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The disclosure set forth in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

FORM 10 INFORMATION

Prior to the Closing, the Company was a “shell company” (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with no operations, formed as a vehicle to effect a business combination with one or more operating businesses. After the Closing, the Company became a holding company whose only assets immediately following consummation of the Merger consist of equity interests in Pinstripes and an immaterial amount of cash and prepaid expense assets.

The information provided below relates to the Company after the consummation of the Business Combination, unless otherwise specifically indicated or the context otherwise requires.

Cautionary Note Regarding Forward-Looking Statements

Certain statements in this Current Report on Form 8-K are “forward-looking statements.” Such forward-looking statements are often identified by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “predict,” “forecasted,” “projected,” “potential,” “seem,” “future,” “outlook,” and similar expressions that predict or indicate future events or trends or otherwise indicate statements that are not of historical matters, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements and factors that may cause actual results to differ materially from current expectations include, but are not limited to: the ability of the Company to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition, the ability of the Company to grow and manage growth profitably, maintain key relationships and retain its management and key employees; risks related to the uncertainty of the projected financial information with respect to the Company; risks related to the Company’s current growth strategy; the Company’s ability to successfully open and integrate new locations; risks related to the substantial indebtedness of the Company; risks related to the capital intensive nature of the Company’s business; the ability of the Company to attract new customers and retain existing customers; the impact of the COVID-19 pandemic, including the resulting labor shortage and inflation, on the Company; and other economic, business and/or competitive factors. The foregoing list of factors is not exhaustive.

Stockholders and prospective investors should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the definitive joint proxy statement/consent solicitation statement/prospectus relating to the proposed Business Combination and other documents filed by the Company from time to time with the SEC.

Stockholders and prospective investors are cautioned not to place undue reliance on these forward-looking statements, which only speak as of the date made, are not a guarantee of future performance and are subject to a number of uncertainties, risks, assumptions and other factors, many of which are outside the control of the Company. The Company expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in the expectations of the Company with respect thereto or any change in events, conditions or circumstances on which any statement is based.

Business and Properties

The information set forth in the section of the definitive joint proxy statement/consent solicitation statement/prospectus titled “Information About Pinstripes” beginning on page 262 is incorporated herein by reference.

Risk Factors

The information set forth in the section of the definitive joint proxy statement/consent solicitation statement/prospectus titled “Risk Factors” beginning on page 66 and in the Company’s Current Report on Form 8-K filed on December 19, 2023 is incorporated herein by reference.

Financial Information

Unaudited Condensed Financial Statements

The unaudited condensed consolidated financial statements of Pinstripes, Inc. as of October 15, 2023 and for the twelve and twenty-four weeks ended October 15, 2023 and October 9, 2022 set forth in Exhibit 99.1 hereto has been prepared in accordance with U.S. generally accepted accounting principles and pursuant to SEC regulations. The condensed consolidated financial information reflects, in the opinion of management, all adjustments, consisting of normal recurring adjustments, considered necessary for a fair statement of Pinstripes’ financial position, results of operations and cash flows for the periods indicated. The results reported for the interim period presented are not necessarily indicative of results that may be expected for the full year. These unaudited condensed consolidated financial statements should be read in conjunction with the historical audited financial statements of Pinstripes, Inc. as of April 30, 2023 and April 24, 2022 and for the years ended April 30, 2023, April 24, 2022 and April 25, 2021, and the related notes, included in definitive joint proxy statement/consent solicitation statement/prospectus, which are incorporated by reference herein.

Unaudited Pro Forma Condensed Combined Financial Information

The unaudited pro forma condensed combined financial information of the Company as of and for the twelve and twenty-four weeks ended October 15, 2023 and for the year ended April 30, 2023 is set forth in Exhibit 99.2 hereto and is incorporated herein by reference.

Management’s Discussion and Analysis of Financial Condition

The information set forth in the section of the definitive joint proxy statement/consent solicitation statement/prospectus titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Pinstripes” beginning on page 275 is incorporated herein by reference. The Management’s Discussion and Analysis of Financial Condition and Results of Operations of Pinstripes for the twelve and twenty-four weeks ended October 15, 2023 and October 9, 2022 is included in Exhibit 99.3 hereto and incorporated herein by reference.

Directors and Executive Officers

As of the Closing Date, the Board is divided into the following classes:

· Class I, which consist of Jerry Hyman and Diane Aigotti, whose terms will expire at the Company’s first annual meeting of stockholders to be held after the completion of the Business Combination;

· Class II, which consists of George Koutsogiorgas and Larry Kadis, whose terms will expire at the Company’s second annual meeting of stockholders to be held after the completion of the Business Combination; and

· Class III, which consist of Dale Schwartz, Jack Greenberg and Dan Goldberg, whose terms will expire at the Company’s third annual meeting of stockholders to be held after the completion of the Business Combination.

Mr. Schwartz has been appointed by the Board to serve as its chairperson, and Mr. Greenberg has been designated by the Board to serve as its lead independent director.

Messrs. Kadis and Greenberg and Ms. Aigotti serve as members of the Audit Committee of the Board, with Mr. Kadis serving as its chairperson. Messrs. Greenberg and Goldberg and Ms. Aigotti serve as members of the Compensation and Human Capital Committee of the Board, with Mr. Greenberg serving as its chairperson. Messrs. Koutsorgiorgas, Hyman and Kadis serve as members of the Nominating, Corporate Governance and Sustainability Committee of the Board, with Mr. Koutsorgiorgas serving as its chairperson.

Diane Aigotti, 59, served as Executive Vice President, Managing Director and Chief Financial Officer of Ryan Specialty Group, LLC, a global insurance services organization, from January 2010 to March 2021. Prior to joining Ryan Specialty Group, Ms. Aigotti served as Senior Vice President, Chief Risk Officer and Treasurer of Aon plc (f/k/a Aon Corp.) from 2000 to 2008. Earlier in her career, she served as the Vice President of Finance at The University of Chicago Hospitals and Health System from 1998 to 2000 and as Budget Director for the City of Chicago from 1995 to 1997. She also serves on the board of OneDigital Health and Benefits, Inc., which provides consulting and technology solutions to employers for their employees’ health and welfare benefits and also serves on the board and as Audit Committee Chair of GATX Corporation (NYSE: GATX), a global railcar lessor. Ms. Aigotti is qualified to serve on the Board because of her extensive financial expertise, including regarding capital markets transactions, financial reporting and internal controls as well as her substantial expertise in key areas such as financial planning and reporting, operations, risk management, treasury management, mergers and acquisitions, information technology, and tax regulatory compliance.

Information with respect to the Company’s other directors after the Closing, including biographical information, is set forth in the definitive joint proxy statement/consent solicitation statement/prospectus in the section titled “Management of New Pinstripes Following the Business Combination” beginning on page 301, which information is incorporated herein by reference. The information with respect to director designation rights set forth in Item 1.01 of this Current Report on Form 8-K under the heading “Director Designation Agreement” is also incorporated herein by reference.

On December 29, 2023, effective upon the Closing, the following persons were appointed to be executive officers of the Company as set forth below:

Name	Position
Dale Schwartz	President and Chief Executive Officer
Anthony Querciagrossa	Chief Financial Officer

Information with respect to the Company’s executive officers after the Closing, including biographical information regarding these individuals, is set forth in the definitive joint proxy statement/consent solicitation statement/prospectus in the section titled “Management of New Pinstripes Following the Business Combination” beginning on page 301, which information is incorporated herein by reference.

Compensation Committee Interlocks and Insider Participation

None of the Company’s executive officers currently serve, or in the past year have served, as members of the board of directors or compensation committee of any entity that has one or more executive officers serving on the Board.

Executive Compensation and Director Compensation

The compensation of Pinstripes’ named executive officer before the consummation of the Business Combination is described in the definitive joint proxy statement/consent solicitation statement/prospectus in the section titled “Executive Compensation” beginning on page 310, which information is incorporated herein by reference.

The compensation of the directors who served on Pinstripes’ board of directors before the consummation of the Business Combination is described in the definitive joint proxy statement/consent solicitation statement/prospectus in the section titled “Executive Compensation” beginning on page 310, which information is incorporated herein by reference. In connection with the Business Combination, the Company expects to adopt a new non-employee director compensation program, which will be designed to provide competitive compensation necessary to attract and retain high quality non-employee directors and to encourage ownership of Company stock to further align their interests with those of the Company’s stockholders.

Certain Relationships and Related Transactions

The information set forth in the section of the definitive joint proxy statement/consent solicitation statement/prospectus titled “Certain Relationships and Related Person Transactions” beginning on page 310 and the information in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

Director Independence

The NYSE listing standards require that a majority of the members of the Board be independent. An “independent director” is defined generally as a person who has no material relationship with the listed company (either directly or as a partner, shareholder or officer of an organization that has a relationship with the company). The Company currently has six “independent directors” as defined in the NYSE listing standards and applicable SEC rules and as determined by the Board using its business judgment: Messrs. Greenberg, Kadis, Goldberg, Koutsogiorgas, Hyman and Ms. Aigotti. The Board also determined that each of the members of the Compensation Committee and the Audit Committee satisfy the additional independence standards for service on compensation committees and audit committees contained as defined in the NYSE listing standards.

Security Ownership of Certain Beneficial Owners and Management

The following table sets forth information known to the Company regarding beneficial ownership of shares of Common Stock as of the Closing Date, following the public share redemptions and the Merger, by:

●  each person known by the Company to be the beneficial owner of more than 5% of any class of the Company’s voting securities;

● each of the Company’s executive officers and directors; and

● all of the Company’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 he, she or it possesses sole or shared voting or investment power over that security, including stock options, warrants and certain other derivative securities that are currently exercisable or will become exercisable within 60 days. Shares subject to stock options and warrants that are currently exercisable or exercisable within 60 days of the Closing Date are considered outstanding and beneficially owned by the person holding such warrants for the purpose of computing the percentage ownership of that person but are not treated as outstanding for the purpose of computing the percentage ownership of any other person.

Unless otherwise indicated and subject to community property laws and similar laws, the Company believes that all parties named in the table below have sole voting and investment power with respect to all shares of Common Stock beneficially owned by them.

	Class A Common Stock					Series B-1 Common Stock					Series B-2 Common Stock					Series B-3 Common Stock
Name of Beneficial Owners	Number of Shares		Ownership Percentage (1)			Number of Shares		Ownership Percentage			Number of Shares		Ownership Percentage			Number of Shares		Ownership Percentage			Percentage of Total Voting Power
Banyan Acquisition Sponsor LLC(1)		13,456,762		26.5	%		896,104		26.2	%		896,103		26.2	%		—		—			24.8	%
Keith Jaffee(2)		13,625,512		26.9	%		896,104		26.2	%		896,103		26.2	%		—		—			25.1	%
BPR Cumulus (3)		2,759,932		6.9	%		206,276		8.3	%		206,276		8.3	%		330,042		8.3	%		7.2	%
NONSUCH LLC (4)		2,399,941		6.0	%		179,371		7.2	%		179,371		7.2	%		286,993		7.2	%		6.2	%
Dale Schwartz		9,671,762		24.3	%		722,864		28.9	%		722,864		28.9	%		1,156,583		28.9	%		25.1	%
Jack Greenberg(5)		406,022		1.0	%		23,438		*			23,438		*			37,500		*			1.0	%
Daniel P. Goldberg(6)		960,408		2.4	%		64,872		2.6	%		64,872		2.6	%		103,796		2.6	%		2.4	%
Jerry Hyman(7)		13,581,762		26.8	%		896,104		26.2	%		896,103		26.2	%		—		—			25.0	%
Larry Kadis(8)		812,412		2.0	%		53,811		2.2	%		53,811		2.2	%		86,098		2.2	%		2.1	%
George Koutsogiorgas(9)		188,427		*			7,175		*			7,175		*			11,480		*			*
Diane Aigotti		—		—			—		—			—		—			—		—			—
Anthony Querciagrossa(10)		13,865		*			—		—			—		—			—		—			*
All directors and executive officers as a group (8 individuals)(11)		25,634,658		59.5	%		1,768,264		51.8	%		1,768,264		51.8	%		1,395,457		34.9	%		59.9	%

*Less than 1%

(1) Includes (i) 2,596,762 shares of Class A Common Stock and (ii) 10,860,000 shares of Class A Common Stock issuable upon exercise of 10,860,000 Private Placement Warrants purchased by the Sponsor in connection with Banyan’s initial public offering. Jerry Hyman and Keith Jaffee are the members of the board of managers of the Sponsor. As a result, Mr. Hyman and Mr. Jaffee may be deemed to share beneficial ownership of the shares held by the Sponsor. The address of the Sponsor is 400 Skokie Blvd., Suite 820, Northbrook, Illinois, 60062.

(2) Includes (i) 2,596,762 shares of Class A Common Stock and (ii) 10,860,000 shares of Class A Common Stock issuable upon exercise of 10,860,000 Private Placement Warrants purchased by the Sponsor in connection with Banyan’s initial public offering. Keith Jaffee is a member of the board of managers of the Sponsor. As a result, Mr. Jaffee may be deemed to share beneficial ownership of the shares held by the Sponsor. Also includes 168,750 shares of Class A Common Stock held in various trusts of which Mr. Jaffee is trustee. The business address of Mr. Jaffee is 400 Skokie Blvd., Suite 820, Northbrook, Illinois, 60062.

(3) Held by (i) BPR Cumulus LLC, a Delaware limited liability company (“BPR Cumulus”), in its capacity as direct owner of the Class A Common Stock and Class B Common Stock, (ii) BPR OP, LP, a Delaware limited partnership (“BPR OP”), in its capacity as managing member of BPR Cumulus, (iii) BPR Real Estate Holding II LLCC, a Delaware limited liability company (“BPR Real Estate II”), in its capacity as general partner of BPR OP, (iv) BPR Real Estate Holding I LLCC, a Delaware limited liability company (“BPR Real Estate I”), in its capacity as shareholder of BPR Real Estate II, (v) Brookfield Properties Retail Holdings LLC, a Delaware limited liability company (“Retail Holding”), in its capacity as shareholder of BPR Real Estate I, (vi) BPR Fin I Subco Inc., a Delaware corporation (“BPR Fin I”), in its capacity as a shareholder of Retail Holding, (vii) BPR Fin II Inc., a Delaware corporation (“BPR Fin II”), in its capacity as a shareholder of Retail Holding and BPR Fin I, (viii) BPR Holding REIT I LLC, a Delaware limited liability company (“BPR Holding REIT”), in its capacity as shareholder of BPR Fin II, (ix) Brookfield Property L.P., a Bermuda limited partnership (“BPY OP”), in its capacity as shareholder of BPR Holding REIT, (x) Brookfield Property Partners L.P., a Bermuda limited partnership (“BPY”), in its capacity as managing general partner of BPY OP, (xi) Brookfield Property Partners Limited, a Bermuda corporation (“BPY GP”), in its capacity as general partner of BPY, (xii) Brookfield Corporation, an Ontario corporation (“BN”), in its capacity as indirect sole shareholder of BPY GP, and (xiii) BAM Partners Trust, a trust established under the laws of Ontario (“BN Partnership”), in its capacity as the sole owner of Class B Limited Voting Shares of BN. The address for BPR Cumulus, BPR OP, BPR Real Estate II, BPR Real Estate I and Retail Holding is 350 N Orleans St., Suite 300, Chicago, IL 60654. The address for BPR Fin I, BPR Fin II and BPR Holding REIT is Brookfield Place, 250 Vesey Street, 15th Floor, New York, NY 10281. The address for BPY OP, BPY and BPY GP is 73 Front Street, 5th Floor, Hamilton, HM12, Bermuda. The address for BN and BN Partnership is Brookfield Place, 181 Bay Street, Suite 300, Toronto, ON M5J 2T3.

(4) The subject securities are directly held by Nonsuch LLC, with a business address of 225 Liberty Street, 31st Floor, New York, NY 10281. Nonsuch LLC is member-managed by its sole member, HBC US Holdings LLC. HBC US Holdings LLC is managed by a board of directors, which consists of more than three (3) individuals, and has the investment and voting power with respect to the subject securities.” Since the board of directors will not be deemed “beneficial owner” we do not believe disclosure of the individuals is required.

(5) Includes 92,430 shares of Class A Common Stock subject to vested options.

(6) Includes 92,430 shares of Class A Common Stock subject to vested options.

(7) Includes (i) 2,596,762 shares of Class A Common Stock and (ii) 10,860,000 shares of Class A Common Stock issuable upon exercise of 10,860,000 Private Placement Warrants purchased by the Sponsor in connection with Banyan’s initial public offering. Jerry Hyman is a member of the board of managers of the Sponsor. As a result, Mr. Hyman may be deemed to share beneficial ownership of the shares held by the Sponsor. Also includes 125,000 shares of Class A Common Stock held directly by Mr. Hyman. The business address of Mr. Hyman is 400 Skokie Blvd., Suite 820, Northbrook, Illinois, 60062.

(8) Includes 92,430 shares of Class A Common Stock subject to vested options.

(9) Includes 92,430 shares of Class A Common Stock subject to vested options.

(10) Includes 13,865 shares of Class A Common Stock subject to vested options.

(11) Unless otherwise noted, the business address of each of the directors and officers of the Company is 1150 Willow Road, Northbrook, Illinois, 60062.

Legal Proceedings

Information about legal proceedings is set forth in the section of the definitive joint proxy statement/consent solicitation statement/prospectus titled “Information About Pinstripes—Legal Proceedings” on page 274, which information is incorporated herein by reference.

Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters

Following the Closing, on January 2, 2024, the Class A Common Stock and Pinstripes Warrants began trading on the NYSE under the symbols “PNST” and “PNST WS,” respectively. The public units of Banyan automatically separated into the component securities upon consummation of the Business Combination and, as a result, no longer trade as a separate security.

As of the Closing Date, there were approximately 156 holders of record of Class A Common Stock, approximately 25 holders of record of Series B-1 Common Stock, approximately 25 holders of record of Series B-2 Common Stock, approximately 18 holders of record of Series B-3 Common Stock, and four holders of record of the Pinstripes Warrants. Such holder numbers do not include The Depository Trust Company participants or beneficial owners holding shares or Pinstripes Warrants through banks, brokers, other financial institutions or other nominees.

Recent Sales of Unregistered Securities

The information set forth in Item 3.02 of this Current Report on Form 8-K is incorporated herein by reference. Information regarding unregistered sales of Banyan’s securities set forth in Part II, Item 5 of Banyan’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 31, 2023, is also incorporated herein by reference.

Description of the Company’s Securities

Information regarding the Class A Common Stock, Class B Common Stock and the Pinstripes Warrants is included in the section of the definitive joint proxy statement/consent solicitation statement/prospectus titled “Description of Securities” beginning on page 327, which information is incorporated herein by reference.

Indemnification of Directors and Officers

Information about the indemnification of the Company’s directors and officers is set forth in the section of the definitive joint proxy statement/consent solicitation statement/prospectus titled “Description of Securities—Limitation on liability and indemnification of officers and directors” on page 340, which information is incorporated herein by reference, and in Item 5.02 of this Current Report on Form 8-K under the heading “Indemnification Agreements,” which is also incorporated herein by reference.

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

The information set forth in Item 4.01 of this Current Report on Form 8-K is incorporated herein by reference.

Financial Statements, Supplementary Data and Exhibits

The information set forth in Item 9.01 of this Current Report on Form 8-K is incorporated herein by reference.

Item 3.02 Unregistered Sales of Equity Securities.

On the Closing Date, the Company issued Tranche 1 Warrants exercisable for 2,500,000 shares of Class A Common Stock. The issuance of such Tranche 1 Warrants was not registered under the Securities Act, with such Tranche 1 Warrants being issued in reliance on the exemption from registration requirements thereof provided by Section 4(a)(2) of the Securities Act as a transaction by an issuer not involving a public offering.

In connection with the Closing, the Company has agreed to issue 50,000 shares of Class A Common Stock in settlement of $0.5 million of transaction costs incurred by Pinstripes for financial advisor, legal and other professional services. The issuance of such shares is not being registered under the Securities Act and is being issued in reliance on the exemption from registration requirements thereof provided by Section 4(a)(2) of the Securities Act as a transaction by an issuer not involving a public offering.

Item 3.03 Material Modification to Rights of Security Holders.

On the Closing Date, in connection with the Business Combination, the Company filed a second amended and restated certificate of incorporation (the “Certificate of Incorporation”) with the Secretary of State of the State of Delaware and adopted amended and restated bylaws (the “Bylaws”). The Certificate of Incorporation was approved by the stockholders of Banyan at the special meeting held on December 27, 2023, and prior to that, Banyan’s board of directors approved the Certificate of Incorporation, subject to the approval by Banyan’s stockholders at the special meeting and subject to, and conditioned upon, the consummation of the Business Combination. The material terms of the Certificate of Incorporation and Bylaws and the general effect upon the rights of holders of the Company’s capital stock are included under the section titled “Proposal No. 3 – The Governance Proposals” beginning on page 189 of the definitive joint proxy statement/consent solicitation statement/prospectus and the section titled “Description of Securities” beginning on page 327 of the definitive joint proxy statement/consent solicitation statement/prospectus, which information is incorporated herein by reference.

As described in “Description of Securities” in the definitive joint proxy statement/consent solicitation statement/prospectus, Series B-1 Common Stock and Series B-2 Common Stock are subject the following vesting conditions (any one or more of which may be satisfied at the same time) and transfer restrictions:

(a) if the daily volume-weighted average sale price of one share of Class A Common Stock quoted on the New York Stock Exchange (or, if not the New York Stock Exchange, the principal securities exchange on which the shares of common stock of the Company are then listed) is greater than or equal to $12.00 for any twenty days on which shares of the common stock of the Company are actually traded on the New York Stock Exchange (or, if not the New York Stock Exchange, the principal securities exchange on which the shares of common stock of the Company are then listed) (each such day, a “Trading Day”) (which twenty days may or may not be consecutive) within any thirty consecutive Trading Day period during the period commencing five months after the Closing Date and ending on the fifth anniversary of the Closing Date (the “Earnout Period”), one-hundred percent of the shares of Series B-1 Common Stock immediately vest and convert into shares of Class A Common Stock; and

(b) if the daily volume-weighted average sale price of one share of Class A Common Stock quoted on the New York Stock Exchange (or, if not the New York Stock Exchange, the principal securities exchange on which the shares of common stock of the Company are then listed) is greater than or equal to $14.00 for any twenty Trading Days (which twenty days may or may not be consecutive) within any thirty consecutive Trading Day Period during the Earnout Period, one-hundred percent of the shares of Series B-2 Common Stock shall immediately vest and convert into shares of Class A Common Stock.

As described in “Description of Securities” in the definitive joint proxy statement/consent solicitation statement/prospectus, Series B-3 Common Stock is subject the following vesting condition and transfer restrictions: If the Company’s public issuance of an earnings release for the Company’s fiscal quarter ending at the end of the period starting on January 8, 2024 and ending on January 5, 2025 reports 2024 EBITDA (as defined in the Business Combination Agreement) equal to or greater than $28,000,000, then one-hundred percent of the shares of Series B-3 Common Stock immediately vest and convert into shares of Class A Common Stock.

For a more detailed description of the vesting conditions, including vesting conditions in connection with a change of control, refer to the section entitled “Description of Securities” in the definitive joint proxy statement/consent solicitation statement/prospectus.

The foregoing description of the Certificate of Incorporation and Bylaws does not purport to be complete and is qualified in its entirety by the terms of the Certificate of Incorporation and Bylaws, which are attached hereto as Exhibits 3.1 and 3.2, respectively, and are incorporated herein by reference.

Item 4.01. Changes in Registrant’s Certifying Accountants.

On January 3, 2024, the Audit Committee of the Company’s Board of Directors approved the engagement of Grant Thornton LLP (“Grant Thornton”) as the Company’s independent registered public accounting firm to audit the Company’s consolidated financial statements effective immediately following the closing of the Business Combination. Accordingly, Marcum LLP (“Marcum”), Banyan’s independent registered public accounting firm prior to the Business Combination, was informed on January 3, 2024 that it was dismissed and replaced by Grant Thornton as the Company’s independent registered public accounting firm.

Marcum’s report on Banyan’s financial statements as of December 31, 2022 and 2021 and for the year ended December 31, 2022 and for the period from March 10, 2021 (inception) through December 31, 2021, and the related notes to the financial statements (collectively, the “Banyan financial statements”), did not contain any adverse opinion or disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope or accounting principles, except that such report included an explanatory paragraph as to Banyan’s ability to continue as a going concern.

During the fiscal years ended December 31, 2022 and December 31, 2021, and the subsequent interim period through December 29, 2023, there were no: (i) disagreements with Marcum on any matter of accounting principles or practices, financial statement disclosures or audit scope or procedures, which disagreements if not resolved to Marcum’s satisfaction would have caused Marcum to make reference to the subject matter of the disagreement in connection with its report or (ii) reportable events as defined in Item 304(a)(1)(v) of Regulation S-K, except for the material weakness in Banyan’s internal control over financial reporting related to the accrual of legal fees, described in the Quarterly Report on Form 10-Q for the quarter ended September 30, 2023 of Banyan.

The Company has provided Marcum with a copy of the disclosures made by the Company in response to this Item 4.01 and has requested that Marcum furnish the Company with a letter addressed to the SEC stating whether it agrees with the statements made by the Company in response to this Item 4.01 and, if not, stating the respects in which it does not agree. A letter from Marcum is attached hereto as Exhibit 16.1.

During the fiscal years ended December 31, 2022 and December 31, 2021, and the subsequent interim period through January 4, 2024, the Company did not consult Grant Thornton with respect to either (i) the application of accounting principles to a specified transaction, either completed or proposed; or the type of audit opinion that might be rendered on the Banyan financial statements, and no written report or oral advice was provided to the Company by Grant Thornton that Grant Thornton concluded was an important factor considered by the Company in reaching a decision as to the accounting, auditing or financial reporting issue; or (ii) any matter that was either the subject of a disagreement, as that term is described in Item 304(a)(1)(iv) of Regulation S-K and the related instructions to Item 304 of Regulation S-K, or a reportable event, as that term is defined in Item 304(a)(1)(v) of Regulation S-K.

In connection with the appointment of Grant Thornton as the Company’s independent registered public accounting firm to audit the Company’s consolidated financial statements effective immediately following the closing of the Business Combination, Ernst & Young LLP (“E&Y”), Pinstripes’ independent registered public accounting firm prior to the Business Combination, was informed on January 3, 2024 that it was dismissed as Pinstripes’ independent registered public accounting firm.

E&Y’s report on Pinstripes’ financial statements as of April 30, 2023 and April 24, 2022 and for each of the three years in the period ended April 30, 2023, and the related notes to the financial statements (collectively, the “Pinstripes financial statements”), did not contain any adverse opinion or disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope or accounting principles.

During the fiscal years ended April 30, 2023 and April 24, 2022, and the subsequent interim period through January 3, 2024, there were no: (i) disagreements with E&Y on any matter of accounting principles or practices, financial statement disclosures or audit scope or procedures, which disagreements if not resolved to E&Y’s satisfaction would have caused E&Y to make reference to the subject matter of the disagreement in connection with its report or (ii) reportable events as defined in Item 304(a)(1)(v) of Regulation S-K, except for the material weaknesses in Pinstripes’ internal control over financial reporting related to (A) Pinstripes’ financial statement close process, (B) Pinstripes’ lease accounting processes and (C) the maintenance and accuracy of Pinstripes outstanding equity information and accounting for stock based compensation, described in the Registration Statement on Form S-4 initially filed by Banyan on September 11, 2023, and as subsequently amended.

The Company has provided E&Y with a copy of the disclosures made by the Company in response to this Item 4.01 and has requested that E&Y furnish the Company with a letter addressed to the SEC stating whether it agrees with the statements made by E&Y in response to this Item 4.01 and, if not, stating the respects in which it does not agree. A letter from E&Y is attached hereto as Exhibit 16.2.

During the fiscal years ended April 30, 2023 and April 24, 2022, and the subsequent interim period through January 4, 2024, the Company did not consult Grant Thornton with respect to either (i) the application of accounting principles to a specified transaction, either completed or proposed; or the type of audit opinion that might be rendered on the Pinstripes financial statements, and no written report or oral advice was provided to the Company by Grant Thornton that Grant Thornton concluded was an important factor considered by the Company in reaching a decision as to the accounting, auditing or financial reporting issue; or (ii) any matter that was either the subject of a disagreement, as that term is described in Item 304(a)(1)(iv) of Regulation S-K and the related instructions to Item 304 of Regulation S-K, or a reportable event, as that term is defined in Item 304(a)(1)(v) of Regulation S-K.

Item 5.01 Changes in Control of the Registrant.

The information set forth in the “Introductory Note” and in Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On December 29, 2023, in connection with the Business Combination, and conditioned upon and effective as of the Closing, each of Keith Jaffee, Bruce Lubin, Otis Carter and Peter Cameron resigned as a director of Banyan. Also on December 29, 2023, in connection with the Business Combination, and conditioned upon and effective as of the Closing, Keith Jaffee resigned as the Company’s Chief Executive Officer and George Courtot resigned as the Company’s Chief Financial Officer.

The information regarding the Company’s directors and executive officers set forth under the heading “Directors and Executive Officers” in Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference. The information set forth in the section of the definitive joint proxy statement/consent solicitation statement/prospectus titled “Certain Relationships and Related Person Transactions” beginning on page 313 is also incorporated herein by reference.

On the Closing Date, the Company entered into indemnification agreements with each of its directors and executive officers. These indemnification agreements require the Company to indemnify its directors and executive officers to the fullest extent permitted by applicable law and to advance and reimburse expenses incurred as a result of any proceeding against them as to which they could be indemnified. The foregoing summary of the indemnification agreements does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the form of indemnification agreement, which is filed as Exhibit 10.20 to this Current Report on Form 8-K and incorporated herein by reference.

On the Closing Date, the Pinstripes Holdings, Inc. 2023 Omnibus Equity Incentive Plan (the “Incentive Plan”) became effective. The Incentive Plan provides for the grant of options, stock appreciation rights, restricted stock, restricted stock units, performance awards, stock awards, dividend equivalents, other stock-based awards, cash awards and substitute awards intended to align the interests of the Company’s service providers with those of its stockholders. Subject to adjustment in the event of certain transactions or changes of capitalization in accordance with the Incentive Plan, 12,900,000 shares of Class A Common Stock have been initially be reserved for issuance pursuant to awards under the Incentive Plan. The number of shares available for issuance under the Incentive Plan will be subject to an annual increase on the first day of each fiscal year of the Company beginning April 29, 2024, equal to the lesser of (i) 15% of the aggregate number of shares outstanding on the final day of the immediately preceding fiscal year on a fully diluted basis (inclusive of all outstanding awards granted pursuant to the Incentive Plan as of such last day and, if applicable, all outstanding purchase rights pursuant to an employee stock purchase plan maintained by the Company as of such last day) and (ii) any such smaller number of shares as is determined by the Board. The Incentive Plan was approved by the stockholders of Banyan at the special meeting held on December 27, 2023, and prior to that, Banyan’s board of directors approved the Incentive Plan, subject to the approval by Banyan’s stockholders at the special meeting and subject to, and conditioned upon, the consummation of the Business Combination. Each option (whether vested or unvested) to purchase shares of Pinstripes Common Stock that was outstanding as of immediately prior to the Effective Time was converted into an option to purchase a number of Class A Common Stock based on the Exchange Ratio, which options are issued pursuant to and in accordance with the Incentive Plan. A summary of the Incentive Plan is included in the section entitled “Proposal No. 5 – the Equity Incentive Plan Proposal” beginning on page 194 of the definitive joint proxy statement/consent solicitation statement/prospectus, which information is incorporated herein by reference, and such summary is qualified in all respects by the full text of the Incentive Plan, which is filed as Exhibit 10.13 to this Current Report on Form 8-K and incorporated herein by reference.

The Pinstripes Holdings, Inc. 2023 Employee Stock Purchase Plan (the “ESPP”) was also approved by the stockholders of Banyan at the special meeting held on December 27, 2023, and prior to that, Banyan’s board of directors approved the ESPP, subject to the approval by Banyan’s stockholders at the special meeting and subject to, and conditioned upon, the consummation of the Business Combination. The ESPP will, once implemented by the Company, provide employees of the Company and its participating subsidiaries with the opportunity to purchase Class A Common Stock at a discount through accumulated payroll deductions during successive offering periods. The Company believes that the ESPP will enhance such employees’ sense of participation in its performance, aligns their interests with those of the Company’s stockholders, and will be an incentive and retention tool that benefits the Company’s stockholders. Subject to adjustment in the event of certain transactions or changes of capitalization in accordance with the ESPP, 850,000 shares of Class A Common Stock will initially be reserved for issuance pursuant to awards under the ESPP. The number of shares available for issuance under the Incentive Plan will be subject to an annual increase on the first day of each fiscal year of the Company beginning April 29, 2024, equal to the lesser of (i) 1% of the aggregate number of shares outstanding on the final day of the immediately preceding fiscal year on a fully diluted basis (inclusive of all outstanding awards granted pursuant to the ESPP as of such last day and, if applicable, all outstanding purchase rights pursuant to an employee stock purchase plan maintained by the Company as of such last day) and (ii) any such smaller number of shares as is determined by the Board. summary of the ESPP is included in the section entitled “Proposal No. 6 – the ESPP Proposal” beginning on page 200 of the definitive joint proxy statement/consent solicitation statement/prospectus, which information is incorporated herein by reference, and such summary is qualified in all respects by the full text of the ESPP, which is filed as Exhibit 10.14 to this Current Report on Form 8-K and incorporated herein by reference.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The information set forth in Item 3.03 of this Current Report on Form 8-K is incorporated herein by reference. Effective upon the Closing, the Company changed its fiscal year end from December 31 to the last Sunday in April.

Item 5.05 Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.

In connection with the Business Combination, on December 29, 2023, the Board approved and adopted a new Code of Ethics for Principal and Senior Financial Officers, which is available on the Company’s website, investor.pinstripes.com/governance/governance-documents/default.aspx

Item 5.06 Change in Shell Company Status.

As a result of the Business Combination, the Company ceased to be a shell company upon the Closing.

The disclosure set forth in the “Introductory Note” above is incorporated into this Item 2.01 by reference. In addition, the material terms of the Business Combination are described in greater detail in the section of the definitive joint proxy statement/consent solicitation statement/prospectus titled “The Business Combination Proposal—The Business Combination Agreement” beginning on page 87, which information is incorporated herein by reference.

Item 7.01. Regulation FD Disclosure.

On the Closing Date, the Company issued a press release announcing the consummation of the Business Combination. A copy of the press release is furnished as Exhibit 99.4 to this Current Report on Form 8-K and incorporated by reference herein.

The information in this Item 7.01, including Exhibit 99.4, is furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference in any filing under the Securities Act, or the Exchange Act, regardless of any general incorporation language in any such filing, except as shall be expressly set forth by specific reference in such a filing.

Item 9.01 Financial Statements and Exhibits.

(a) Financial statements of businesses or funds acquired.

The consolidated financial statements of Pinstripes, together with the notes thereto, included in the definitive joint proxy statement/consent solicitation statement/prospectus on pages F-46 through F-93 are incorporated by reference into this Current Report on Form 8-K.

The unaudited condensed consolidated financial statements of Pinstripes as of and for the twelve and twenty-four weeks ended October 15, 2023 and October 9, 2022, together with the notes thereto, are filed as Exhibit 99.1 and incorporated herein by reference.

(b) Pro forma financial information.

The unaudited pro forma condensed combined financial information of the Company as of October 15, 2023 and for the twelve and twenty-four weeks ended October 15, 2023 and for the year ended April 30, 2023 is filed as Exhibit 99.2 and incorporated herein by reference.

(d) Exhibits.

Exhibit  Number	Description of Exhibit
2.1*†	Second Amended and Restated Business Combination Agreement, dated as of November 22, 2023, by and among Banyan Acquisition Corporation, Panther Merger Sub Inc. and Pinstripes, Inc. (incorporated by reference to Exhibit 2.1 to Banyan Acquisition Corporation’s Current Report on Form 8-K, filed with the SEC on November 22, 2023).
3.2**	Second Amended and Restated Certificate of Incorporation of Pinstripes Holdings, Inc.
3.3**	Amended and Restated Bylaws of Pinstripes Holdings, Inc.
4.1*	Warrant Agreement, dated January 19, 2022, by and between Banyan Acquisition Corporation and Continental Stock Transfer & Trust Company, as warrant agent (incorporated by reference to Exhibit 4.1 to Banyan Acquisition Corporation’s Current Report on Form 8-K, filed with the SEC on January 24, 2022).

Exhibit  Number	Description of Exhibit
4.2**	Form of Tranche 1 Warrant.
10.1**†	Loan Agreement, dated December 29, 2023, by and among Pinstripes, Inc., as Borrower, Pinstripes Holdings, Inc. as Holdings, Oaktree Fund Administration, LLC as Agent, and the lenders party thereto.
10.2**†	Continuing Guaranty Agreement, dated December 29, 2023, by an among each guarantor party thereto and Oaktree Fund Administration, LLC.
10.3**†	Pledge and Security Agreement, dated as of December 29, 2023, among Pinstripes, Inc., as borrower, Pinstripes Holdings, Inc., as Holdings, each subsidiary of the borrower from time to time party thereto and Oaktree Fund Administration, LLC.
10.4**†	Fifth Amendment to Loan Agreement and Second Amendment to Pledge and Security Agreement, dated December 29, 2023 to the Loan Agreement, dated as of March 7, 2023 by and among Pinstripes, Inc., Pinstripes Holdings, Inc., the other guarantors party thereto, Silverview Credit Partners, L.P., as agent and the lenders party thereto.
10.5**†	Omnibus Joinder dated as of December 29, 2023 by and between Silverview Credit Partners, as agent and Pinstripes Holdings, Inc.
10.6**†	Amendment No. 2 to Term Loan and Security Agreement, dated December 29, 2023, by and among Pinstripes, the lenders party thereto and GCCP II Agent, LLC, as agent for the lenders.
10.7**†	Continuing Guaranty Agreement, dated December 29, 2023 by each guarantor party thereto and GCCP II Agent, LLC, as agent.
10.8**	Director Designation Agreement, dated December 29, 2023, by and among Pinstripes Holdings, Inc. and Dale Schwartz.
10.9**†	Amended and Restated Registration Rights Agreement, dated December 29, 2023, by and among Pinstripes Holdings, Inc. and certain security holders named therein.
10.10*	Amended and Restated Sponsor Letter Agreement, dated as of November 22, 2023, by and among Banyan Acquisition Corporation, Pinstripes, Inc., Banyan Acquisition Sponsor LLC and other parties thereto (incorporated by reference to Exhibit 10.1 to Banyan Acquisition Corporation’s Current Report on Form 8-K, filed with the SEC on November 22, 2023).
10.11*	Security Holder Support Agreement, dated as of June 22, 2023, by and among Banyan Acquisition Corporation, Pinstripes, Inc. and certain security holders of Pinstripes, Inc. set forth therein (incorporated by reference to Exhibit 10.2 to Banyan Acquisition Corporation’s Current Report on Form 8-K, filed with the SEC on June 23, 2023).
10.12*	Lockup Agreement, dated June 22, 2023, by and among Banyan Acquisition Corporation, Pinstripes, Inc. and certain security holders set forth therein (incorporated by reference to Exhibit 10.3 to Banyan Acquisition Corporation’s Current Report on Form 8-K, filed the SEC on June 23, 2023).
10.13**	Pinstripes Holdings, Inc. 2028 Omnibus Equity Incentive Plan.

Exhibit  Number	Description of Exhibit
10.14**	Pinstripes Holdings, Inc. Employee Stock Purchase Plan.
10.15*	Letter Agreement (incorporated by reference to Exhibit 10.1 to Banyan Acquisition Corporation’s Current Report on Form 8-K, filed with the SEC on January 24, 2022).
10.16*	Warrant Purchase Agreement with Banyan Acquisition Sponsor LLC (incorporated by reference to Exhibit 10.4 to Banyan Acquisition Corporation’s Current Report on Form 8-K, filed with the SEC on January 24, 2022).
10.17*	BTIG Warrants Purchase Agreement, dated January 19, 2022, by and between Banyan Acquisition Corporation and BTIG (incorporated by reference to Exhibit 10.5 to Banyan Acquisition Corporation’s Current Report on Form 8-K, filed with the SEC on January 24, 2022).
10.18*	I-Bankers Warrants Purchase Agreement, dated January 19, 2022, by and between Banyan Acquisition Corporation and I-Bankers (incorporated by reference to Exhibit 10.6 to Banyan Acquisition Corporation’s Current Report on Form 8-K, filed with the SEC on January 24, 2022).
10.19*	Support Services Agreement, dated January 19, 2022, by and between Banyan Acquisition Corporation and the Sponsor (incorporated by reference to Exhibit 10.7 to Banyan Acquisition Corporation’s Current Report on Form 8-K, filed with the SEC on January 24, 2022).
10.20**	Form of Indemnity Agreement.
10.21*#	Master Services Agreement, dated as of January 1, 2023, by and between Sysco Chicago Inc. and its affiliates and Pinstripes Inc. (incorporated by reference to Exhibit 10.18 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).
10.22*#	Distribution Capabilities and Proposal for Pinstripes Inc., dated as of March 1, 2010, by and between Pinstripes Inc. and Edward Don & Company (incorporated by reference to Exhibit 10.19 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).
10.23* †	Term Loan and Security Agreement, dated as of April 19, 2023, by and between GCCP II Agent, LLC and Pinstripes Inc. (incorporated by reference to Exhibit 10.20 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).
10.24*†	Amendment No. 1 to the Loan and Security Agreement, dated as of July 27, 2023, by and among Pinstripes Inc., the financial institutions party thereto and GCCP II Agent, LLC (incorporated by reference to Exhibit 10.21 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).
10.25*†	Vendor Agreement, dated as of April 19, 2023, by and among GCCP II Agent, LLC, C. Rae Interiors, Ltd. and Pinstripes Inc. (incorporated by reference to Exhibit 10.22 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).
10.26*†	Loan Agreement, dated as of March 7, 2023, by and among Pinstripes, Inc., Silverview Credit Partners LP, and other institutional investors from time to time (incorporated by reference to Exhibit 10.23 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).

Exhibit  Number	Description of Exhibit
10.27*†	Pledge and Security Agreement, dated as of March 7, 2023, by and among Pinstripes Inc., Pinstripes Hillsdale LLC, Pinstripes at Prairiefire, Inc., Pinstripes Illinois, LLC, and Silverview Credit Partners LP (incorporated by reference to Exhibit 10.24 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).
10.28*†	Continuing Guaranty Agreement, dated as of March 7, 2023, by and among Pinstripes Inc., Pinstripes Hillsdale LLC, Pinstripes at Prairiefire, Inc., Pinstripes Illinois, LLC, and Silverview Credit Partners LP (incorporated by reference to Exhibit 10.25 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).
10.29*†	First Amendment to Loan Agreement and First Amendment to Pledge and Security Agreement, dated as of April 19, 2023, by and among Pinstripes, Inc., Silverview Credit Partners LP, and other institutional investors from time to time (incorporated by reference to Exhibit 10.26 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).
10.30*†	Second Amendment to Loan Agreement and Limited Consent, dated as of July 27, 2023, by and among Pinstripes, Inc., Silverview Credit Partners LP, and other institutional investors from time to time (incorporated by reference to Exhibit 10.27 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).
10.31*†	Third Amendment to Loan Agreement and Limited Consent, dated as of August 9, 2023, by and among Pinstripes, Inc., Silverview Credit Partners LP, and other institutional investors from time to time (incorporated by reference to Exhibit 10.28 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).
10.32*	Agreement of Sale and Purchase, dated as of July 2, 2014, between Pinstripes Northbrook, LLC, and 30 West Pershing, LLC, for the Sale and Purchase of Pinstripes Northbrook, 1150 Willow Road, Northbrook, Illinois (incorporated by reference to Exhibit 10.29 to Banyan Acquisition Corporation’s Registration Statement on Form S-4/A, filed with the SEC on November 28, 2023).
16.1**	Letter of Marcum LLP.
16.2**	Letter of Ernst & Young LLP.
21.1**	List of Subsidiaries
99.1**	Unaudited Condensed Consolidated Financial Statements of Pinstripes, Inc. and its subsidiaries as of October 15, 2023 and for the twelve and twenty-four weeks ended October 15, 2023 and October 9, 2022.
99.2**	Unaudited Pro Forma Condensed Combined Financial Statements of the Company and its subsidiaries as of and for the twelve and twenty-four weeks ended October 15, 2023 and for the year ended April 30, 2023.
99.3**	Management’s Discussion and Analysis of Financial Condition and Results of Operations for Pinstripes as of October 15, 2023 and for the twelve and twenty-four weeks ended October 15, 2023 and October 9, 2022.

Exhibit  Number	Description of Exhibit
99.4**	Press Release, dated December 29, 2023.
104	Cover Page Interactive Data File (embedded within the Inline XBRL document).

 *         Previously filed.

**        Filed herewith.

†          Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Registrant agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request.

# Certain confidential portions of this exhibit were omitted by means of marking such portions with asterisks because the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: January 5, 2024

PINSTRIPES HOLDINGS, INC.
By:	/s/ Anthony Querciagrossa
Name:	Anthony Querciagrossa
Title:	Chief Financial Officer

EX-3.2

 

Exhibit 3.2

 

SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BANYAN ACQUISITION CORPORATION

 

December 29, 2023

 

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 Corporation filed its original certificate of incorporation with the Secretary of State of the State of Delaware on March 10, 2021 (the “Original Certificate”).

 

2. The Original Certificate was amended and restated on January 19, 2022 (the “First Amended and Restated Certificate of Incorporation”).

 

3. The First Amended and Restated Certificate of Incorporation was amended on April 21, 2023 (the “Certificate of Incorporation Amendment”).

 

4. This Second Amended and Restated Certificate of Incorporation (this “Second Amended and Restated Certificate”), which both restates and amends the provisions of the First Amended and Restated Certificate of Incorporation, as amended by the Certificate of Incorporation Amendment, was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”).

 

5. This Second Amended and Restated Certificate shall become effective on the date of filing with Secretary of State of Delaware.

 

6. The text of the First Amended and Restated Certificate of Incorporation, as amended by the Certificate of Incorporation Amendment, is hereby restated and amended in its entirety to read as follows:

 

Article I
NAME

 

The name of the corporation is Pinstripes Holdings, Inc. (the “Corporation”).

 

Article II
PURPOSE

 

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. In addition to the powers and privileges conferred upon the Corporation by law and those incidental thereto, the Corporation shall possess and may exercise all the powers and privileges that are necessary or convenient to the conduct, promotion or attainment of the business or purposes of the Corporation.

 

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Article III
REGISTERED AGENT

 

The address of the Corporation’s registered office in the State of Delaware is 850 New Burton Road, Suite 201, Dover, DE 19904, County of Kent, and the name of the Corporation’s registered agent at such address is Cogency Global Inc.

 

Article IV
CAPITALIZATION

 

Section 4.1            Authorized Capital Stock. The total number of shares of all classes of capital stock which the Corporation is authorized to issue is 440,000,000 shares, consisting of (a) 400,000,000 shares of Class A Common Stock, par value $0.0001 per share (the “Class A Common Stock”), (b) 30,000,000 shares of Class B Common Stock, par value $0.0001 per share (the “Class B Common Stock” and, together with the Class A Common Stock, the “Common Stock”), of which 10,000,000 shares are designated as Series B-1 Common Stock, par value $0.0001 per share (“Series B-1 Common Stock”), 10,000,000 shares are designated as Series B-2 Common Stock, par value $0.0001 per share (“Series B-2 Common Stock”), and 10,000,000 shares are designated as Series B-3 Common Stock, par value $0.0001 per share (“Series B-3 Common Stock”), and (c) 10,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”). Subject to the rights of the holders of any one or more series of Preferred Stock then outstanding, the number of authorized shares of any class of the Common Stock or Preferred Stock may be increased or decreased, in each case by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of any class of the Common Stock or Preferred Stock voting separately as a class will be required therefor.

 

Section 4.2            Existing Common Stock. Upon this Second Amended and Restated Certificate becoming effective pursuant to the DGCL, each share of the Corporation’s Class A common stock, par value $0.0001 per share, issued and outstanding or held in treasury shall automatically and without any action on the part of the holder thereof become one share of Class A Common Stock under this Second Amended and Restated Certificate, other than shares of the Corporation’s Class A common stock not included as part of the units sold in the Corporation’s initial public offering of securities and set forth in a schedule delivered by the Corporation to each holder of any such shares of Class A common stock, which shall automatically and without any action on the part of the holder thereof each become one share of Class B Common Stock under this Second Amended and Restated Certificate.

 

Section 4.3            Preferred Stock. The Board of Directors of the Corporation (the “Board”) is hereby expressly authorized to provide out of the unissued shares of the Preferred Stock for one or more series of Preferred Stock and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional, special and other rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance of such series and included in a certificate of designation (a “Preferred Stock Designation”) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any such resolution or resolutions. Except as required by the DGCL, any Preferred Stock Designation or this Second Amended and Restated Certificate, a series of Preferred Stock may be authorized, and the terms of any series of Preferred Stock may be amended, without the consent, approval or other action of the holders of Common Stock, of any other series of Preferred Stock or of any other class of capital stock of the Corporation.

 

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Section 4.4            Common Stock.

 

(a)               Voting.

 

(i)                 Except as otherwise required by law or this Second Amended and Restated Certificate (including any Preferred Stock Designation), the holders of the shares of Common Stock shall exclusively possess all voting power with respect to the Corporation.

 

(ii)              Except as otherwise required by law or this Second Amended and Restated Certificate (including any Preferred Stock Designation), the holders of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders of the Corporation on which the holders of the shares of Common Stock are entitled to vote. The holders of Common Stock shall vote together as a single class on all matters on which the holders of the shares of Common Stock are entitled to vote.

 

(iii)            Except as otherwise required by law or this Second Amended and Restated Certificate (including any Preferred Stock Designation), at any annual or special meeting of the stockholders of the Corporation, the holders of the shares of Common Stock shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders of the Corporation. Notwithstanding the foregoing, except as otherwise required by law or this Second Amended and Restated Certificate (including any Preferred Stock Designation), the holders of the shares of Common Stock shall not be entitled to vote on any amendment to this Second Amended and Restated Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series of Preferred Stock are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Second Amended and Restated Certificate (including any Preferred Stock Designation) or the DGCL.

 

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(b)               Dividends. Subject to applicable law and the rights, if any, of the holders of any outstanding series of the Preferred Stock, the holders of the shares of Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor and shall share equally on a per share basis in such dividends and distributions. Notwithstanding the foregoing or anything else to the contrary contained in this Second Amended and Restated Certificate, the payment of any dividend or other distribution so declared with respect to any share of Class B Common Stock with a record date prior to the occurrence of a Conversion Event (as defined below) with respect to such share (or if there is no record date for such dividend or other distribution, with an effective date prior to the occurrence of a Conversion Event with respect to such share) shall be contingent upon, and no dividend or other distribution shall be paid unless and until, the occurrence of a Conversion Event, if any, in respect of any such share of Class B Common Stock and, upon declaration of any dividend or other distribution, the record date for such dividend or other distribution with respect to any shares of Class B Common Stock (but, for the avoidance of doubt, not the Class A Common Stock) shall be one day before the Conversion Date (as defined below) with respect to such shares of Class B Common Stock, and the Board shall so set the record date upon such declaration. Upon the occurrence of a Conversion Event with respect to a share of Class B Common Stock, the Dividend Catch-Up Payment (as defined below) in respect of such share of Class B Common Stock shall become payable as of the Conversion Date with respect to such share of Class B Common Stock by the Corporation to the holder of record of such share of Class B Common Stock as of the day immediately prior to such Conversion Date. The Corporation shall pay, no later than five (5) business days following the Conversion Date with respect to a share of Class B Common Stock for which a Conversion Event applicable to such shares has occurred, the dividends previously declared in respect of such share of Class B Common Stock before the Conversion Date with respect to such Class B Common Stock (“Dividend Catch-Up Period”), but not including dividends declared on the Conversion Date (which amount, excluding any amounts declared on the Conversion Date, shall be, for the avoidance of doubt, the aggregate per share amount of dividends declared in respect of a share of Class A Common Stock during the Dividend Catch-Up Period (each such payment, a “Dividend Catch-Up Payment”)). If any portion of a Dividend Catch-Up Payment was declared by the Corporation as an in-kind dividend (which for purposes of this Second Amended and Restated Certificate, shall not include any transaction subject to ‎Section 8.3(e) hereof), then such portion of the Dividend Catch-Up Payment shall also be paid as an in-kind dividend; provided, however, to the extent the Corporation received cash in lieu of the in-kind distributions in respect of shares of Class B Common Stock which were declared substantially concurrently with such in-kind dividend by the Corporation comprising a portion of the Dividend Catch-Up Payment, then such equivalent portion of the Dividend Catch-Up Payment shall be paid in cash in lieu of such in-kind dividend and such holder of Class B Common Stock shall be treated for all purposes as if it received the in-kind distribution of property, which is then immediately exchanged by such holder for cash of equivalent value. If a dividend is declared by the Corporation on any Conversion Date, such dividend shall be paid to the holder of each share of Class B Common Stock converting on such Conversion Date as a holder of Class A Common Stock, and not as part of the Dividend Catch-Up Payment, and the Corporation shall ensure that the holder of the applicable shares of Class B Common Stock on such Conversion Date shall be treated as a record holder of Class A Common Stock (in respect of each share of Class B Common Stock which converted into a share of Class A Common Stock in accordance with Section 8.3(a) on such Conversion Date) for purposes of such dividend. Notwithstanding the foregoing, in no event shall holders of any shares of Class B Common Stock be entitled to any dividend or other distribution in respect of a Split (as defined below).

 

(c)               Liquidation Dissolution or Winding Up of the Corporation. Subject to applicable law, and the rights, if any, of the holders of any outstanding series of the Preferred Stock, in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of the shares of Class A Common Stock (including Class A Common Stock which converted to Class A Common Stock from Class B Common Stock in accordance with Section 8.3(a) on or prior to the date of such liquidation, dissolution or winding up (including if a Conversion Event occurred as a result of such liquidation, dissolution or winding up)) shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Class A Common Stock held by them. The holders of shares of Class B Common Stock (other than to the extent such liquidation, dissolution or winding up constitutes a Conversion Event, in which case such Class B Common Stock shall automatically convert to Class A Common Stock immediately in accordance with Section 8.3(a) and the holders of such resulting Class A Common Stock shall be treated as a holder of Class A Common Stock in accordance with this Section 4.4(c)) shall not be entitled to receive any assets of the Corporation in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.

 

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Article V
BOARD OF DIRECTORS

 

Section 5.1            Board Powers. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority expressly conferred upon the Board by statute, this Second Amended and Restated Certificate or the Bylaws of the Corporation (“Bylaws”), the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Second Amended and Restated Certificate, and any Bylaws adopted by the stockholders of the Corporation; provided, however, that no Bylaws hereafter adopted by the stockholders of the Corporation shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.

 

Section 5.2            Number, Election and Term.

 

(a)               Subject to Section 2.1 of the Director Designation Agreement dated as of December 29, 2023, by and among the Corporation and the other persons party thereto (the “Director Designation Agreement”) (but only to the extent the Director Designation Agreement remains in effect), the number of directors of the Corporation, other than those who may be elected by the holders of one or more series of the Preferred Stock voting separately by class or series, shall be fixed from time to time exclusively by the Board pursuant to a resolution adopted by a majority of the Board.

 

(b)               Subject to Section 5.5 hereof, the Board shall be divided into three classes, as nearly equal in number as possible and designated Class I, Class II and Class III. The Board is authorized to assign members of the Board already in office to Class I, Class II or Class III. The term of the initial Class I Directors shall expire at the first annual meeting of the stockholders of the Corporation following the effectiveness of this Second Amended and Restated Certificate, the term of the initial Class II Directors shall expire at the second annual meeting of the stockholders of the Corporation following the effectiveness of this Second Amended and Restated Certificate and the term of the initial Class III Directors shall expire at the third annual meeting of the stockholders of the Corporation following the effectiveness of this Second Amended and Restated Certificate. At each succeeding annual meeting of the stockholders of the Corporation, beginning with the first annual meeting of the stockholders of the Corporation following the effectiveness of this Second Amended and Restated Certificate, each of the successors elected to replace the class of directors whose term expires at that annual meeting shall be elected for a three-year term or until the election and qualification of their respective successors in office, subject to their earlier death, resignation, retirement, disqualification or removal. Subject to Section 5.5 hereof, if the number of directors that constitutes the Board is changed, any increase or decrease shall be apportioned by the Board among the classes so as to maintain the number of directors in each class as nearly equal as possible, but in no case shall a decrease in the number of directors constituting the Board shorten the term of any incumbent director. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, the election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon. The Board is hereby expressly authorized, by resolution or resolutions thereof, to assign members of the Board already in office to the aforesaid classes at the time this Second Amended and Restated Certificate (and therefore such classification) becomes effective in accordance with the DGCL.

 

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(c)               Subject to Section 5.5 hereof, a director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.

 

(d)               Unless and except to the extent that the Bylaws shall so require, the election of directors need not be by written ballot. The holders of shares of Common Stock shall not have cumulative voting rights.

 

Section 5.3            Newly Created Directorships and Vacancies. Subject to Section 2.1 of the Director Designation Agreement with respect to the rights of certain parties to fill vacancies on the Board (but only to the extent the Director Designation Agreement remains in effect) and to Section 5.5 hereof, newly created directorships resulting from an increase in the number of directors and any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal or other cause may be filled solely and exclusively by a majority vote of the remaining directors then in office, even if less than a quorum, or by a sole remaining director (and not by stockholders), and any director so chosen shall hold office for the remainder of the full term of the class of directors to which the new directorship was added or in which the vacancy occurred and until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.

 

Section 5.4            Removal. Subject to Section 2.1 of the Director Designation Agreement (but only to the extent the Director Designation Agreement remains in effect) and to Section 5.5 hereof, any or all of the directors may be removed from office at any time, but only for cause and only by the affirmative vote of holders of 66-2/3% of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

 

Section 5.5            Preferred Stock - Directors. Notwithstanding any other provision of this Article V, and except as otherwise required by law, whenever the holders of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors, the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the terms of such series of the Preferred Stock as set forth in this Second Amended and Restated Certificate (including any Preferred Stock Designation), and such directors shall not be included in any of the classes created pursuant to this Article V unless expressly provided by such terms.

 

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Article VI
BYLAWS

 

In furtherance and not in limitation of the powers conferred upon it by law, the Board shall have the power and is expressly authorized to adopt, amend, alter or repeal the Bylaws by the affirmative vote of a majority of the total number of directors present at a regular or special meeting of the Board at which there is a quorum or by unanimous written consent. The Bylaws also may be adopted, amended, altered or repealed by the stockholders of the Corporation; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by law or by this Second Amended and Restated Certificate (including any Preferred Stock Designation), the affirmative vote of the holders of at least 66-2/3% of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders of the Corporation to adopt, amend, alter or repeal the Bylaws; and provided further, however, that no Bylaws hereafter adopted by the stockholders of the Corporation shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.

 

Article VII
SPECIAL MEETINGS OF STOCKHOLDERS; ACTION BY WRITTEN CONSENT

 

Section 7.1            Special Meetings. Subject to the rights, if any, of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law, special meetings of stockholders of the Corporation may be called only by the Chairperson of the Board, the Chief Executive Officer of the Corporation, or the Board pursuant to a resolution adopted by a majority of the Board, and the ability of the stockholders of the Corporation to call a special meeting is hereby specifically denied. Except as provided in the foregoing sentence, special meetings of stockholders of the Corporation may not be called by another person or persons.

 

Section 7.2            Advance Notice. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.

 

Section 7.3            Action by Written Consent. Except as may be otherwise provided for or fixed pursuant to this Second Amended and Restated Certificate (including any Preferred Stock Designation) relating to the rights of the holders of any outstanding series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such stockholders and may not be effected by written consent of the stockholders of the Corporation.

 

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Article VIII
CONVERSION OF CLASS B COMMON STOCK

 

Section 8.1            Vesting of Class B Common Stock. As of the Closing, the shares of Class B Common Stock shall be unvested and shall be subject to the following vesting conditions (any one or more of which may be satisfied at the same time):

 

(a)               if the daily volume weighted average sale price of one (1) share of Class A Common Stock quoted on the New York Stock Exchange (or, if not the New York Stock Exchange, the principal securities exchange on which the shares of Class A Common Stock are then listed) is greater than or equal to $12.00 for any twenty (20) Trading Days (which may or may not be consecutive) within any thirty (30) consecutive Trading Day period during the Earnout Period, one hundred percent (100%) of the Series B-1 Common Stock shall immediately vest (the “B-1 Vesting Event”) and shall convert into shares of Class A Common Stock in accordance with Section 8.3(a);

 

(b)               if the daily volume weighted average sale price of one (1) share of Class A Common Stock quoted on the New York Stock Exchange (or, if not the New York Stock Exchange, the principal securities exchange on which the shares of Class A Common Stock are then listed) is greater than or equal to $14.00 for any twenty (20) Trading Days (which may or may not be consecutive) within any thirty (30) consecutive Trading Day period during the Earnout Period, one hundred percent (100%) of the Series B-2 Common Stock shall immediately vest (the “B-2 Vesting Event”) and shall convert into shares of Class A Common Stock in accordance with Section 8.3(a); and

 

(c)               Immediately upon the Corporation’s public issuance of an earnings release for the Corporation’s fiscal quarter ending at the end of the EBITDA Earnout Period that reports EBITDA equal to or in excess of the EBITDA Earnout Threshold, one hundred percent (100%) of the Series B-3 Common Stock shall immediately vest (the “B-3 Vesting Event”) and shall convert into shares of Class A Common Stock in accordance with Section 8.3(a).

 

Section 8.2                  Change of Control.

 

(a)               If a Change of Control occurs during the five-year period beginning on the first day after the Closing (the “Change of Control Earnout Period”), the Series B-1 Common Stock and Series B-2 Common Stock shall vest immediately prior to the consummation of such Change of Control (each such vesting a “Stock Price Change of Control Vesting Event”) as follows:

 

(i)                 if the consideration per share paid or payable to the stockholders of the Corporation in connection with such Change of Control is less than $12.00, then no shares of Series B-1 Common Stock or Series B-2 Common Stock shall vest in connection with such Change of Control and all outstanding shares of Series B-1 Common Stock and Series B-2 Common Stock shall be cancelled immediately prior to the consummation of such Change of Control in accordance with Section 8.3(a);

 

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(ii)              if the consideration per share paid or payable to the stockholders of the Corporation in connection with such Change of Control is equal to or greater than $14.00, then one hundred percent (100%) of any outstanding shares of Series B-1 Common Stock and Series B-2 Common Stock shall vest immediately prior to the consummation of such Change of Control and shall convert into shares of Class A Common Stock in accordance with Section 8.3(a); and

 

(iii)            if the price per share paid or payable to the stockholders of the Corporation in connection with such Change of Control is equal to or greater than $12.00 but less than $14.00, then one hundred percent (100%) of any outstanding shares of Series B-1 Common Stock shall vest immediately prior to the consummation of such Change of Control and shall convert into shares of Class A Common Stock in accordance with Section 8.3(a) and one hundred percent (100%) of any outstanding shares of Series B-2 Common Stock shall be forfeited for no consideration and shall be cancelled in accordance with Section 8.3(a).

 

(iv)             The value per share of Common Stock implied by the consideration received by the Corporation pursuant to a Change of Control shall be calculated inclusive of the consideration received by the holders of Class B Common Stock that have not vested prior to, but will vest upon, the Change of Control and taking in account any such shares of Class B Common Stock.

 

(b)               If a Change of Control occurs during the period beginning on the first day after the Closing and ending on the last day of the EBITDA Earnout Period, the Series B-3 Common Stock shall vest immediately prior to the consummation of such Change of Control (the “First EBITDA Change of Control Vesting Event”) and shall convert into shares of Class A Common Stock in accordance with Section 8.3(a).

 

(c)               If a Change of Control occurs during the period beginning on the first day after the end of the EBITDA Earnout Period and ending on the date that the Corporation publicly issues its earnings release for the Corporation’s fiscal quarter ending on the last day of the EBITDA Earnout Period, then, as a condition to the consummation of such Change of Control, EBITDA shall be calculated prior to the consummation of such Change of Control. If the EBITDA equals or exceeds the EBITDA Earnout Threshold, all of the Series B-3 Common Stock shall vest (the “Second EBITDA Change of Control Vesting Event”) immediately prior to the consummation of such Change of Control and shall convert into shares of Class A Common Stock in accordance with Section 8.3(a). If the EBITDA is less than the EBITDA Earnout Threshold, all of the Series B-3 Common Stock shall be automatically forfeited for no consideration and shall be cancelled immediately prior to the consummation of such Change of Control in accordance with Section 8.3(a).

 

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Section 8.3            Conversion Terms Upon the occurrence of any B-1 Vesting Event, B-2 Vesting Event , B-3 Vesting Event, Change of Control Vesting Event ,First EBITDA Change of Control Vesting Event or Second EBITDA Change of Control Vesting Event (each such event, a “Conversion Event” and the date any such Conversion Event occurs, a “Conversion Date”) applicable to any shares of Class B Common Stock, such shares of Class B Common Stock shall, automatically, without any further action on the part of the record holder thereof or any other person (including the Corporation), convert into and become an equal number of shares of Class A Common Stock, which conversion shall be effective on the Conversion Date with respect to such shares of Class B Common Stock, and each holder of any such shares of Class B Common Stock shall become a record holder of Class A Common Stock as of such Conversion Date (it being understood that, (i) with respect to a Change of Control Vesting Event occurring prior to the expiration of the Change of Control Earnout Period, the holders of such shares of Series B-1 Common Stock and Series B-2 Common Stock so converted as of immediately prior to the Change of Control transaction shall participate in (or be eligible to participate in, as applicable) such Change of Control transaction as holders of Class A Common Stock and (ii) with respect to a First EBITDA Change of Control Vesting Event or Second EBITDA Vesting Event occurring prior to the date that the Corporation publicly issues its earnings release for the Corporation’s fiscal quarter ending on the last day of the EBITDA Earnout Period, the holders of such shares of Series B-3 Common Stock as of immediately prior to the Change of Control transaction shall participate in (or be eligible to participate in, as applicable)such Change of Control transaction as holders of Class A Common Stock). Each outstanding stock certificate or book-entry credit, as applicable, that, immediately prior to such Conversion Event, represented one or more shares of Class B Common Stock vesting upon such Conversion Event shall, upon such Conversion Event, be automatically deemed to represent as of the Conversion Date an equal number of shares of Class A Common Stock, without the need for any surrender, exchange or registration thereof or any consent or notification. The Corporation, or any transfer agent of the Corporation, shall, upon the request on or after the Conversion Date of any holder whose shares of Class B Common Stock have been converted into shares of Class A Common Stock as a result of a Conversion Event and upon surrender by such holder to the Corporation, or any transfer agent of the Corporation, of the outstanding certificate(s) formerly representing such holder’s shares of Class B Common Stock (if any), issue and deliver to such holder certificate(s) representing the shares of Class A Common Stock into which such holder’s shares of Class B Common Stock were converted as a result of such Conversion Event (if such shares are certificated) or, if such shares are uncertificated, register such shares in book-entry form, reflecting that such holder is a record holder of Class A Common Stock as of the Conversion Date in respect of the relevant shares of Class B Common Stock. On the day immediately following the day on which the Earnout Period expires, all shares of Series B-1 Common Stock and Series B-2 Common Stock that have not converted to shares of Class A Common Stock pursuant to and in accordance with this Second Amended and Restated Certificate shall, automatically, without any further action on the part of any holder thereof, the Corporation or any other person, be forfeited, cancelled and transferred to the Corporation, without consideration. On the day immediately following the day on which the Corporation public issues its earnings release for the Corporation’s fiscal quarter ending on the last day of the EBITDA Earnout Period, all shares of Series B-3 Common Stock that have not converted to shares of Class A Common Stock pursuant to and in accordance with this Second Amended and Restated Certificate shall, automatically, without any further action on the part of any holder thereof, the Corporation or any other person, be forfeited, cancelled and transferred to the Corporation, without consideration.

 

(b)               If the consideration payable in a Change of Control pursuant to Section 8.2(a) consists in whole or in part of securities publicly traded on a securities exchange or other trading market, the value of each such security shall be deemed to be the volume weighted average sale price of one (1) share (or other applicable unit) of such security on the principal securities exchange or trading market therefor over a consecutive fifteen (15) Trading Day period ending on the Trading Day immediately preceding the day upon which the Change of Control is first publicly announced.

 

(c)               The price targets set forth in Section 8.1 and Section 8.2(a) shall be equitably adjusted for any stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction affecting the outstanding shares of Common Stock after the date of this Second Amended and Restated Certificate.

 

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(d)               The Class B Common Stock shall not entitle the holder thereof to, without limiting Section 8.2, any consideration in connection with any sale or other transaction and may not be offered, sold, transferred, redeemed, assigned, pledged, hypothecated, encumbered or otherwise disposed of (whether by operation of law or otherwise) by any holder thereof or be subject to execution, attachment or similar process, and shall bear a customary legend with respect to such transfer restrictions, and any attempt to so sell, transfer, assign, pledge, hypothecate, encumber or otherwise dispose of such Class B Common Stock shall be null and void. Notwithstanding the foregoing, transfers, assignments and sales of Class B Common Stock by any of the holders thereof are permitted: (i) to any Affiliate of such holder, or as a distribution to any of such holder’s limited partners, members or stockholders; (ii) to the Corporation’s or the Company’s directors or officers, or any Affiliates or family members of any of the Corporation’s or the Company’s directors or officers; (iii) in the case of an individual, by gift to a member of such individual’s immediate family or to a trust, the beneficiaries of which are members of such individual’s immediate family or an Affiliate of such individual, or to a charitable organization; (iv) in the case of an individual, by virtue of Laws of descent and distribution upon death of such individual; (v) in the case of an individual, pursuant to a qualified domestic relations order; (vi) in the case of a trust, by distribution to one or more of the permissible beneficiaries of such trust; (vii) in the case of an individual, to a partnership, limited liability company or other entity of which such individual and/or the immediate family of such individual are the legal and beneficial owners of such entity; (viii) in the case of an entity, by virtue of the Laws of the state of such entity’s organization and such entity’s organizational documents upon dissolution of such entity; or (ix) to the Corporation pursuant to any contractual arrangement that provides for the repurchase by the Corporation, or forfeiture, of such Class B Common Stock in connection with the termination of such holder’s service to the Corporation or the Company; provided, however, that (1) any such permitted transfer must comply in all respects with all applicable securities Laws, and (2) such transferring holder shall provide advance written notice to the Corporation of any such permitted transfer.

 

(e)               If the Corporation at any time combines or subdivides (by any stock split, stock dividend, recapitalization, reorganization, merger, amendment of this Second Amended and Restated Certificate, scheme, arrangement or otherwise (each, a “Split”)) any class of Common Stock into a greater or lesser number of shares, the shares of each other class of Common Stock outstanding immediately prior to such subdivision shall be proportionately similarly combined or subdivided such that the ratio of shares of outstanding Class B Common Stock, to shares of outstanding Class A Common Stock immediately prior to such subdivision shall be maintained immediately after such combination or subdivision. Any adjustment described in this ‎Section 8.3(e) shall become effective at the close of business on the date the combination or subdivision becomes effective. In the event any Split of shares of Class A Common Stock or Class B Common Stock occurs prior to any Conversion Date, the per share amount used to calculate the amount of the Dividend Catch-Up Payment owed in respect of such shares of Class B Common Stock with respect to any dividend declared prior to such Split shall be ratably adjusted in a manner consistent with such Split such that, in the aggregate, the holders of such shares of Class B Common Stock would not receive a greater or lesser Dividend Catch-Up Payment than such holders would have received absent such Split. In the event of any exchange, conversion or other similar transaction with respect to the shares of Class A Common Stock (whether by recapitalization, reorganization, merger or otherwise), any shares of Class B Common Stock which are outstanding shall remain outstanding and be converted into a right to receive the property or security into which the Class A Common Stock converted or was exchanged subject to the occurrence of a Conversion Event with respect to any such shares of Class B Common Stock (which Conversion Event and related definitions shall be equitably adjusted taking into account such event with respect to the Class A Common Stock).

 

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(f)                Any determination made in good faith by the Board concerning any of the provisions of this Article VIII shall be conclusive and binding upon all holders of the Class B Common Stock.

 

(g)               The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock an amount equal to the number of then-outstanding shares of Class B Common Stock, in each case, from time to time.

 

Section 8.4            Definitions. All capitalized terms used but not otherwise defined in this Article VIII shall have the respective meanings set forth in the Amended and Restated Business Combination Agreement dated as of November 22, 2023, by and among the Corporation, Panther Merger Sub Inc., a Delaware corporation and Pinstripes, Inc., a Delaware corporation (the “Amended and Restated Business Combination Agreement”).

 

Section 8.5            Amendments. Notwithstanding anything herein to the contrary, the affirmative vote of the holders of 80% of the outstanding shares of Class B Common Stock of the Corporation generally entitled to vote thereon, shall be required to amend or repeal any provision of this Article VIII.

 

Article IX
LIMITED LIABILITY; INDEMNIFICATION

 

Section 9.1            Limitation of Director and Officer Liability. To the fullest extent that the DGCL or any other law of the State of Delaware (as any such law exists on the date hereof or as it may hereafter be amended) permits the limitation or elimination of the liability of directors or officers, no director or officer of the Corporation shall be liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director or officer. If, after this Second Amended and Restated Certificate is filed with the Secretary of State of the State of Delaware, the DGCL or any such other law is amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL or such other law, as so amended. No amendment to, or modification or repeal of, this Article VIII shall adversely affect any right or protection of, or increase the liability of, any director or officer of the Corporation existing hereunder with respect to any state of facts existing or any act or omission occurring, or any cause of action, suit or claim that, but for this Article VIII, would accrue or arise, prior to such amendment, modification or repeal.

 

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Section 9.2            Indemnification and Advancement of Expenses.

 

(a)               To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify, defend and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this Section 9.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 9.2 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 9.2(a), except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.

 

(b)               The rights to indemnification and advancement of expenses conferred on any indemnitee by this Section 9.2 shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Second Amended and Restated Certificate, the Bylaws, agreements, vote of stockholders or disinterested directors, or otherwise.

 

(c)               Any repeal or amendment of this Section 9.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Second Amended and Restated Certificate inconsistent with this Section 9.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.

 

(d)               This Section 9.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.

 

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Article X
AMENDMENT OF SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

 

The Corporation reserves the right, subject to the then-applicable terms of the Director Designation Agreement, at any time and from time to time to amend, alter, change or repeal any provision contained in this Second Amended and Restated Certificate (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force that may be added or inserted, in the manner now or hereafter prescribed by this Second Amended and Restated Certificate and the DGCL; and, except as set forth in Article VIII, all rights, preferences and privileges of whatever nature herein conferred upon stockholders, directors or any other persons by and pursuant to this Second Amended and Restated Certificate in its present form or as hereafter amended are granted subject to the right reserved in this Article X. Notwithstanding the foregoing, the provisions set forth in Section 4.4 and Articles V, VI, VII, IX, this Article X and Article XI (and any defined terms referenced therein and herein) may not be repealed or amended in any respect, and no other provision may be adopted, amended or repealed which would have the effect of modifying or permitting the circumvention of the provisions set forth therein, but subject to the then-applicable terms of the Director Designation Agreement, unless such action is approved by the affirmative vote of the holders of not less than 66-2/3% of the total voting power of all outstanding securities of the Corporation generally entitled to vote thereon, voting together as a single class.

 

Article XI
EXCLUSIVE FORUM FOR CERTAIN LAWSUITS

 

Section 11.1        Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the DGCL or this Second Amended and Restated Certificate or the Bylaws, (iv) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine or (v) any action to interpret, apply, enforce or determine the validity of this Second Amended and Restated Certificate, except for, as to each of (i) through (iv) above, any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction. Unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, and the rules and regulations thereunder. This Article XI shall not apply to suits brought to enforce a duty or liability created by the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder or any other claim for which the federal courts have exclusive jurisdiction. Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 11.1.

 

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Section 11.2        Consent to Jurisdiction. If any action the subject matter of which is within the scope of Section 11.1 immediately above is filed in a court other than a court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce Section 11.1 immediately above (an “FSC Enforcement Action”) and (ii) having service of process made upon such stockholder in any such FSC Enforcement Action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder. Any person holding, owning or otherwise acquiring any interest in any security of the Corporation shall be deemed to have notice of and consented to all of the provisions of this Second Amended and Restated Certificate.

 

Article XII
Miscellaneous

 

Section 12.1        Severability. If any provision or provisions (or any part thereof) of this Second Amended and Restated Certificate shall be held to be invalid, illegal or unenforceable as applied to any person, entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Second Amended and Restated Certificate (including, without limitation, each portion of any paragraph of this Second Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby, and (ii) the provisions of this Second Amended and Restated Certificate (including, without limitation, each portion of any paragraph of this Second Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service or for the benefit of the Corporation to the fullest extent permitted by law.

 

Section 12.2        Facts Ascertainable. When the terms of this Second Amended and Restated Certificate refer to a specific agreement or other document or a decision by any body, person or entity to determine the meaning or operation of a provision hereof, the secretary of the Corporation shall maintain a copy of such agreement, document or decision at the principal executive offices of the Corporation and a copy thereof shall be provided free of charge to any stockholder of the Corporation who makes a request therefor.

 

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IN WITNESS WHEREOF, Banyan Acquisition Corporation has caused this Second Amended and Restated Certificate to be duly executed and acknowledged in its name and on its behalf by an authorized officer as of the date first set forth above.

 

	Banyan Acquisition Corporation
	By:	/s/ Keith Jaffee
	Name:	Keith Jaffee
	Title:	Chief Executive Officer

 

 

 

EX-3.3

Exhibit 3.3

AMENDED AND RESTATED BYLAWS

OF

PINSTRIPES HOLDINGS, INC.

(THE “CORPORATION”)

Article I

OFFICES

Section 1.1 Registered Office. The registered office of the Corporation within the State of Delaware shall be located at either (a) the principal place of business of the Corporation in the State of Delaware or (b) the office of the corporation or individual acting as the Corporation’s registered agent in Delaware.

Section 1.2 Additional Offices. The Corporation may, in addition to its registered office in the State of Delaware, have such other offices and places of business, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the “Board”) may from time to time determine or as the business and affairs of the Corporation may require.

Article II

STOCKHOLDERS MEETINGS

Section 2.1 Annual Meetings. The annual meeting of stockholders shall be held at such place, either within or without the State of Delaware, and time and on such date as shall be determined by the Board and stated in the notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(a). At each annual meeting, the stockholders entitled to vote on such matters shall elect those directors of the Corporation to fill any term of a directorship that expires on the date of such annual meeting and may transact any other business as may properly be brought before the meeting.

Section 2.2 Special Meetings. Subject to the rights of the holders of any outstanding series of the preferred stock of the Corporation (“Preferred Stock”), and to the requirements of applicable law, special meetings of stockholders, for any purpose or purposes, may be called only by the chairperson of the Board (the “Chairperson of the Board”), by the Chief Executive Officer, or by the Board pursuant to a resolution adopted by a majority of the Board. Special meetings of stockholders shall be held at such place, either within or without the State of Delaware, and time and on such date as shall be determined by the Board and stated in the Corporation’s notice of the meeting; provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(a).

Section 2.3 Notices. Notice of each stockholders meeting stating the place, if any, date, and time of the meeting, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, shall be given in the manner permitted by Section 9.3 to each stockholder entitled to vote thereat by the Corporation not less than 10 nor more than 60 days before the date of the meeting, unless otherwise required by the General Corporation Law of the State of Delaware (“DGCL”). If said notice is for a stockholders meeting other than an annual meeting, it shall in addition state the purpose or purposes for which the meeting is called, and the business transacted at such meeting shall be limited to the matters so stated in the Corporation’s notice of meeting (or any supplement thereto). Any meeting of stockholders as to which notice has been given may be postponed, and any special meeting of stockholders as to which notice has been given may be cancelled, by the Board upon public announcement (as defined in Section 2.7(c)) given before the date previously scheduled for such meeting.

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Section 2.4 Quorum. Except as otherwise provided by applicable law, the Corporation’s Amended and Restated Certificate of Incorporation, as the same may be further amended or restated from time to time (the “Certificate of Incorporation”), or these Amended and Restated Bylaws, as the same may be further amended or restated from time to time (these “Bylaws”), the presence, in person or by proxy, at a stockholders meeting of the holders of shares of outstanding capital stock of the Corporation representing not less than thirty-three and a third percent (33 1/3%) a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting shall constitute a quorum for the transaction of business at such meeting, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of shares representing not less than thirty-three and a third percent (33 1/3%) of the voting power of the outstanding shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. If a quorum shall not be present or represented by proxy at any meeting of the stockholders of the Corporation, the chairperson of the meeting may adjourn the meeting from time to time in the manner provided in Section 2.6 until a quorum shall attend. The stockholders present at a duly convened meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the voting power of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any such other corporation to vote shares held by it in a fiduciary capacity.

Section 2.5 Voting of Shares.

(a) Voting Lists. The officer who has charge of the stock ledger of the Corporation shall prepare, at least 10 days before every meeting of stockholders, a complete list of the stockholders of record entitled to vote at such meeting and showing the address and the number of shares registered in the name of each stockholder. Nothing contained in this Section 2.5(a) shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting; or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list required by this Section 2.5(a) or to vote in person or by proxy at any meeting of stockholders.

(b) Manner of Voting. At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized by the Board, the voting by stockholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot submitted by electronic transmission (as defined in Section 9.3), provided that any such electronic transmission must either set forth or be submitted with information from which the Corporation can determine that the electronic transmission was authorized by the stockholder or proxy holder. The Board, in its discretion, or the chairperson of the meeting of stockholders, in such person’s discretion, may require that any votes cast at such meeting shall be cast by written ballot.

(c) Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed with the Secretary before being voted. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, either of the following shall constitute a valid means by which a stockholder may grant such authority.

(i) A stockholder may execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by the stockholder or such stockholder’s authorized officer, director, employee or agent signing such writing or causing such person’s signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile or electronic signature.

(ii) A stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission; provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used; provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.

(d) Required Vote. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, the election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting, in which such matter is being voted upon at which a quorum is present, and entitled to vote thereon. All other matters presented to the stockholders at a meeting at which a quorum is present shall be determined by the vote of a majority of the votes cast by the common stockholders present in person or represented by proxy at the meeting and entitled to vote thereon, unless the matter is one upon which, by applicable law, the Certificate of Incorporation, these Bylaws or applicable stock exchange rules, a different vote is required, in which case such provision shall govern and control the decision of such matter. For purposes of this Section 2.5(d), a majority of the votes cast shall mean that the number of shares voted “for” a matter exceeds the number of votes cast “against” such matter.

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(e) Inspectors of Election. The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons as inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board may appoint one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed by the Board, the chairperson of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall ascertain and report the number of outstanding shares and the voting power of each; determine the number of shares present in person or represented by proxy at the meeting and the validity of proxies and ballots; count all votes and ballots and report the results; determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. No person who is a candidate for an office at an election may serve as an inspector at such election. Each report of an inspector shall be in writing and signed by the inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors.

Section 2.6 Adjournments. Any meeting of stockholders, annual or special, may be adjourned by the chairperson of the meeting (including due to a technical failure to convene or continue the meeting by remote communication), from time to time, whether or not there is a quorum, to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if the date, time, and place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders, or the holders of any class or series of stock entitled to vote separately as a class, as the case may be, may transact any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 2.7 Advance Notice for Business.

(a) Annual Meetings of Stockholders. No business may be transacted at an annual meeting of stockholders, other than business that is either (i) specified in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii) otherwise properly brought before the annual meeting by or at the direction of the Board or (iii) otherwise properly brought before the annual meeting by any stockholder of the Corporation (x) who is a stockholder of record entitled to vote at such annual meeting on the date of the giving of the notice provided for in this Section 2.7(a) and on the record date for the determination of stockholders entitled to vote at such annual meeting and (y) who complies with the notice procedures set forth in this Section 2.7(a). Notwithstanding anything in this Section 2.7(a) to the contrary, only persons nominated for election as a director to fill any term of a directorship that expires on the date of the annual meeting pursuant to Section 3.2 will be considered for election at such meeting.

(i) In addition to any other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation, or such other person as the Corporation may designate, and such business must otherwise be a proper matter for stockholder action. Subject to Section 2.7(a)(iii), a stockholder’s notice to the Secretary with respect to such business, to be timely, must be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 120th day nor earlier than the close of business on the 150th day before the first anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is advanced more than 30 days prior to such anniversary date or delayed more than 70 days after such anniversary date, notice by the stockholder to be timely must be so received not earlier than the close of business on the 150th day before the meeting and not later than the later of (x) the close of business on the 120th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first made by the Corporation. The public announcement of an adjournment or postponement of an annual meeting shall not commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described in this Section 2.7(a).

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(ii) To be in proper written form, a stockholder’s notice to the Secretary with respect to any business (other than nominations) must set forth as to each such matter such stockholder proposes to bring before the annual meeting (A) a brief description of the business desired to be brought before the annual meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event such business includes a proposal to amend these Bylaws, the language of the proposed amendment) and the reasons for conducting such business at the annual meeting, (B) the name and record address of such stockholder and the name and address of the beneficial owner, if any, on whose behalf the proposal is made, (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and by the beneficial owner, if any, on whose behalf the proposal is made, (D) a description of all agreements, arrangements or understandings between such stockholder and the beneficial owner, if any, on whose behalf the proposal is made, any of their respective affiliates or associates and any other person or persons (including their names) in connection with the proposal of such business by such stockholder, (E) any material interest of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made in such business, (F) a representation that such stockholder is a holder of record of stock entitled to vote at such meeting and intends to appear in person or by proxy at the annual meeting to bring such business before the meeting, (G) a description of all agreements, arrangements or understandings (including any derivative or short positions, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) that have been entered into as of the date of the stockholder’s notice by, or on behalf of, such stockholder and the beneficial owner, if any, on whose behalf the proposal is made, whether or not such instrument or right shall be subject to settlement in underlying shares of stock, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such stockholder or such beneficial owner, if any, with respect to securities of the Corporation, (H) a representation as to whether such stockholder or the beneficial owner, if any, on whose behalf the proposal is made has complied with all state and other legal requirements in connection with the stockholder’s and/or beneficial owner’s acquisition of shares of capital stock or other securities of the Corporation and/or the stockholder’s and/or beneficial owner’s acts or omissions as a stockholder of the Corporation, (I) any direct or indirect material interest or any material contract or agreement between such stockholder or the beneficial owner, if any, on whose behalf the proposal is made with the Corporation, any affiliate of the Corporation or any entity that provides products or services that compete with or are alternative to the principal products produces or services provided by the Corporation or its affiliates (a “Competitor”) (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement), (J) any material pending or threatened legal proceeding in which such stockholder or the beneficial owner, if any, on whose behalf the proposal is made is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation, (K) any other material relationship between such stockholder or the beneficial owner, if any, on whose behalf the proposal is made, on the one hand, and the Corporation, or any affiliate of the Corporation or any Competitor, on the other hand, and (L) any other information relating to such stockholder and the beneficial owner, if any, on whose behalf the proposal is made required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for such business pursuant to and in accordance with Section 14A of the Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, and (M) the written consent of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made to the public disclosure of information provided to the Corporation pursuant to this Section 2.7.

(iii) The foregoing notice requirements of this Section 2.7(a) shall be deemed satisfied by a stockholder as to any proposal (other than nominations) if the stockholder has notified the Corporation of such stockholder’s intention to present such proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) of the Exchange Act and such stockholder has complied with the requirements of Rule 14a-8 for inclusion of such proposal in a proxy statement prepared by the Corporation to solicit proxies for such annual meeting. No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 2.7(a), provided, however, that once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 2.7(a) shall be deemed to preclude discussion by any stockholder of any such business. If the Board or the chairperson of the annual meeting determines that any stockholder proposal was not made in accordance with the provisions of this Section 2.7(a) or the Exchange Act or that the information provided in a stockholder’s notice does not satisfy the information requirements of this Section 2.7(a) or the Exchange Act, such proposal shall not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this Section 2.7(a), if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of the Corporation to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such matter may have been received by the Corporation.

(iv) In addition to the provisions of this Section 2.7(a), a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 2.7(a) shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

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(b) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made only at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting pursuant to Section 3.2.

(c) Public Announcement. For purposes of these Bylaws, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed or furnished by the Corporation with the Securities and Exchange Commission (the “Commission”) pursuant to Section 13, 14 or 15(d) of the Exchange Act.

Section 2.8 Conduct of Meetings. The chairperson of each annual and special meeting of stockholders shall be the Chairperson of the Board, if any, or, in the absence (or inability or refusal to act) of the Chairperson of the Board, the Chief Executive Officer (if he or she shall be a director), if any, or, in the absence (or inability or refusal to act) of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director), if any, or, in the absence (or inability or refusal to act) of the President or if the President is not a director, such other person as shall be appointed by the Board. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairperson of the meeting. The Board may adopt such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with these Bylaws or such rules and regulations as adopted by the Board, the chairperson of any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairperson of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairperson of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board or the chairperson of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The secretary of each annual and special meeting of stockholders shall be the Secretary, if any, or, in the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary so appointed to act by the chairperson of the meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Article III

DIRECTORS

Section 3.1 Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws required to be exercised or done by the stockholders. Directors need not be stockholders or residents of the State of Delaware.

Section 3.2 Advance Notice for Nomination of Directors.

(a) Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided by the terms of one or more series of Preferred Stock with respect to the rights of holders of one or more series of Preferred Stock to elect directors. Nominations of persons for election to the Board at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing directors as set forth in the Corporation’s notice of such special meeting, may be made (i) by or at the direction of the Board, (ii) by or at the direction of any party to that certain Director Designation Agreement, dated as of December 28, 2023 (the “Director Designation Agreement”), provided the Director Designation Agreement remains in effect and only to the extent permitted by, and subject to the limitations set forth in, Section 2.1 thereof, or (iii) by any stockholder of the Corporation (x) who is a stockholder of record entitled to vote in the election of directors on the date of the giving of the notice provided for in this Section 3.2 and on the record date for the determination of stockholders entitled to vote at such meeting and (y) who complies with the notice procedures set forth in this Section 3.2.

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(b) In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder’s notice to the Secretary must be received by the Secretary at the principal executive offices of the Corporation (i) in the case of an annual meeting, not later than the close of business on the 120th day nor earlier than the close of business on the 150th day before the first anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is advanced more than 30 days prior to such anniversary date or delayed more than 70 days after such anniversary date, notice by the stockholder to be timely must be so received not earlier than the close of business on the 150th day before the meeting and not later than the later of (x) the close of business on the 120th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting was first made by the Corporation; and (ii) in the case of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the 10th day following the day on which public announcement of the date of the special meeting is first made by the Corporation. In no event shall the public announcement of an adjournment or postponement of an annual meeting or special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described in this Section 3.2.

(c) Notwithstanding anything in paragraph (b) of this Section 3.2 to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting is greater than the number of directors whose terms expire on the date of the annual meeting and there is no public announcement by the Corporation naming all of the nominees for the additional directors to be elected or specifying the size of the increased Board before the close of business on the 120th day prior to the anniversary date of the immediately preceding annual meeting of stockholders, a stockholder’s notice required by this Section 3.2 shall also be considered timely, but only with respect to nominees for the additional directorships created by such increase that are to be filled by election at such annual meeting, if it shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the date on which such public announcement was first made by the Corporation.

(d) To be in proper written form, a stockholder’s notice to the Secretary must set forth (i) as to each person whom the stockholder proposes to nominate for election as a director (A) the name, age, business address and residence address of the person, (B) the principal occupation or employment of the person, (C) the class or series and number of shares of any capital stock of the Corporation that are owned beneficially or of record by the person, (D) the person’s written consent (x) to being named in the proxy statement, proxy card and ballot as a nominee and to serving as a director of the Corporation if elected and (y) the Corporation’s engaging in a background check of such person (including through a third party investigation firm), in a manner consistent with background checks customarily engaged in by the Corporation for prospective new members of the Board, (E) the information reasonably necessary to complete such background check, (F) all other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, including, without limitation, the requirements of Rule 14a-19, and (G) such other information regarding the person as may reasonably be requested by the Board in writing prior to the meeting of stockholders at which such candidate’s nomination is to be acted upon in order for the Board to determine the eligibility of such candidate for nomination to be an independent director of the Corporation in accordance with listing requirements and applicable stock exchange rules; (ii) with respect to each nominee for election to the Board, the completed and signed questionnaire, representation and agreement required by Section 3.3 of these Bylaws; and (iii) as to the stockholder giving the notice (A) the name and record address of such stockholder as they appear in the Corporation’s books and the name and address of the beneficial owner, if any, on whose behalf the nomination is made, (B) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and the beneficial owner, if any, on whose behalf the nomination is made, (C) a description of all agreements, arrangements or understandings relating to the nomination to be made by such stockholder among such stockholder, the beneficial owner, if any, on whose behalf the nomination is made, any of such stockholder’s and/or beneficial owner’s respective affiliates or associates, each proposed nominee and any other person or persons (including their names), (D) a description of any agreements, arrangements or understandings (including any derivative or short positions, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that have been entered into as of the date of such stockholder’s notice by, or on behalf of, such stockholder and the beneficial owner, if any, on whose behalf the nomination is made, whether or not such instrument or right shall be subject to settlement in underlying shares of stock, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such stockholder or such beneficial owner, if any, with respect to securities of the Corporation, (E) a representation that such stockholder is a holder of record of stock entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the persons named in its notice, (F) a representation whether such stockholder or the beneficial owner, if any, on whose behalf the nomination is made intends or is part of a group which intends to (x) solicit proxies or votes from stockholders in support of such proposed nomination and/or (y) solicit proxies in support of such proposed nomination of persons for election to the Board other than the Corporation’s nominees for election to the Board from the holders of capital stock of the Corporation representing at least sixty-seven percent (67%) of the voting power of the capital stock entitled to vote generally in the election of directors in accordance with Rule 14a-19 of the Exchange Act, (G) a representation as to whether such stockholder or the beneficial owner, if any, on whose behalf the nomination is made has complied with all state and other legal requirements in connection with the stockholder’s and/or beneficial owner’s acquisition of shares of capital stock or other securities of the Corporation and/or the stockholder’s and/or beneficial owner’s acts or omissions as a stockholder of the Corporation, (H) any direct or indirect material interest or any material contract or agreement between such stockholder or beneficial owner, if any, on whose behalf the nomination is made with the Corporation, any affiliate of the Corporation or any Competitor (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement), (I) any material pending or threatened legal proceeding in which such stockholder or the beneficial owner, if any, on whose behalf the nomination is made is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation, (J) any other material relationship between such stockholder or the beneficial owner, if any, on whose behalf the nomination is made, on the one hand, and the Corporation, or any affiliate of the Corporation or any Competitor, on the other hand, (K) any other information relating to (i) such stockholder and the beneficial owner, if any, on whose behalf the nomination is made, and (ii) each person whom the stockholder proposes to nominate for election as a director that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder and (L) the written consent of such stockholder and the beneficial owner, if any, on whose behalf the nomination is made to the Corporation’s public disclosure of information provided to the Corporation pursuant to this Section 3.2.

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(e) If the Board or the chairperson of the meeting of stockholders determines that any nomination was not made in accordance with the provisions of this Section 3.2 or the Exchange Act, including, without limitation, Rule 14a-19, then such nomination shall not be considered at the meeting in question. Notwithstanding the foregoing provisions of this Section 3.2, if the stockholder (or a qualified representative of the stockholder) (i) fails to comply with the requirements of Rule 14a-19(a)(2) or Rule 14a-19(a)(3) under the Exchange Act or (ii) does not appear at the meeting of stockholders of the Corporation to present the nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may have been received by the Corporation.

(f) In addition to the provisions of this Section 3.2, a stockholder shall also comply with all of the applicable requirements of the Exchange Act and the rules and regulations thereunder, including, without limitation, Rule 14a-19, with respect to the matters set forth herein, and if any stockholder provides notice pursuant to Rule 14a-19(b) under the Exchange Act, such stockholder shall deliver to the Corporation, no later than five (5) business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) under the Exchange Act. Nothing in this Section 3.2 shall be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the Certificate of Incorporation.

Section 3.3 Submission of Questionnaire, Representation and Agreement. To be eligible to be a nominee for election as a director of the Corporation, the candidate for nomination must have previously delivered (in accordance with the time periods prescribed for delivery of notice under Section 3.2 of these Bylaws), to the Secretary at the principal executive offices of the Corporation, (a) a completed written questionnaire (in a form provided by the Corporation) with respect to the background, qualifications, stock ownership and independence of such proposed nominee, (b) a written representation and agreement (in the form provided by the Corporation) that such candidate for nomination (i) unless previously disclosed to the Corporation, the nominee is not and will not become a party to any voting agreement, arrangement or understanding with any person or entity as to how such nominee, if elected as a director, will vote on any issue or that could interfere with such person’s ability to comply, if elected as a director, with his/her fiduciary duties under applicable law, (ii) is not, and will not become a party to, any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation or reimbursement for service as a director, and (iii) if elected as a director of the Corporation, will comply with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading and other policies and guidelines of the Corporation applicable to directors and in effect during such person’s term in office as a director of the Corporation (and, if requested by any candidate for nomination, the Secretary of the Corporation shall provide to such candidate for nomination all such policies and guidelines then in effect). At the request of the Board, any person nominated by the Board for election as a director shall furnish to the Secretary of the Corporation the information that is required to be set forth in a stockholder’s notice of nomination that pertains to the nominee (as if such nominee were the stockholder), as set forth in Section 3.2(d).

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Section 3.4. Proxy Card. Any stockholder directly or indirectly soliciting proxies from other stockholders (other than on behalf the Corporation) must use a proxy card color other than white, which shall be reserved for exclusive use by the Corporation.

Section 3.5 Compensation. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board shall have the authority to fix the compensation of directors. The directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board and may be paid either a fixed sum for attendance at each meeting of the Board or other compensation as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees of the Board may be allowed like compensation and reimbursement of expenses for service on the committee.

Section 3.6 Chairperson of the Board. The Chairperson of the Board shall be a member of the Board and may or may not be an officer and/or employee of the Corporation. The Chairperson of the Board, if any, shall preside when present at all meetings of the stockholders and the Board. The Chairperson of the Board shall have general supervision and control of the acquisition activities of the Corporation subject to the ultimate authority of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters. In the absence (or inability or refusal to act) of the Chairperson of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board. The powers and duties of the Chairperson of the Board shall not include supervision or control of the preparation of the financial statements of the Corporation (other than through participation as a member of the Board). The position of Chairperson of the Board and Chief Executive Officer may be held by the same person.

Section 3.7. Lead Independent Director. If at any time the Chairperson of the Board is not independent as that term is defined under the then applicable rules and regulations of each national securities exchange upon which shares of the stock of the Corporation are listed for trading and of the Commission, the independent directors may designate from among them a Lead Independent Director having the duties and responsibilities determined by the Board from time to time.

Article IV

BOARD MEETINGS

Section 4.1 Annual Meetings. The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place of the annual stockholders meeting or, if such meeting is held solely by means of remote communication, then by means of remote communication, unless the Board shall fix another time and place and give notice thereof in the manner required herein for special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except as provided in this Section 4.1.

Section 4.2 Regular Meetings. Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places (within or without the State of Delaware) as shall from time to time be determined by the Board, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(b).

Section 4.3 Special Meetings. Special meetings of the Board (a) may be called by the Chairperson of the Board, Lead Independent Director, Chief Executive Officer or President and (b) shall be called by the Chairperson of the Board, Lead Independent Director, Chief Executive Officer, President or Secretary on the written request of at least a majority of directors then in office, or the sole director, as the case may be, and shall be held at such time, date and place (within or without the State of Delaware) as may be determined by the person calling the meeting or, if called upon the request of directors or the sole director, as specified in such written request. Notice of each special meeting of the Board shall be given to each director (i) at least 24 hours before the meeting if such notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of a form of electronic transmission and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally recognized overnight delivery service; and (iii) at least five days before the meeting if such notice is sent through the United States mail. If the Secretary shall fail or refuse to give such notice, then the notice may be given by the officer who called the meeting or the directors who requested the meeting. Any and all business that may be transacted at a regular meeting of the Board may be transacted at a special meeting. Except as may be otherwise expressly provided by applicable law, the Certificate of Incorporation, or these Bylaws, neither the business to be transacted at, nor the purpose of, any special meeting need be specified in the notice or waiver of notice of such meeting. A special meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Section 9.4.

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Section 4.4 Quorum; Required Vote. A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by applicable law, the Certificate of Incorporation or these Bylaws. If a quorum shall not be present at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.

Section 4.5 Consent In Lieu of Meeting. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all the members of the Board or such committee, as the case may be, consent thereto in writing or by electronic transmission. Any person, whether or not then a director, may provide, through instruction to an agent or otherwise, that a consent to action will be effective at a future time (including a time determined upon the happening of an event) no later than sixty (60) days after such instruction is given or such provision is made and such consent shall be deemed to have been given at such effective time so long as such person is then a director and did not revoke the consent prior to such time. Any such consent shall be revocable prior to its becoming effective. After an action is taken, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board, or the committee thereof, in the same paper or electronic form as the minutes are maintained.

Section 4.6 Organization. The chairperson of each meeting of the Board shall be the Chairperson of the Board, if any, or, in the absence (or inability or refusal to act) of the Chairperson of the Board, the Lead Independent Director, if any, or, in the absence (or inability or refusal to act) of the Lead Independent Director, the Chief Executive Officer, if any (if he or she shall be a director), or, in the absence (or inability or refusal to act) of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President, if any (if he or she shall be a director), or in the absence (or inability or refusal to act) of the President or if the President is not a director, a chairperson elected from the directors present. The Secretary, if any, shall act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary, if any, shall perform the duties of the Secretary at such meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Article V

COMMITTEES OF DIRECTORS

Section 5.1 Establishment. The Board may by resolution passed by a majority of the Board designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when required. The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee.

Section 5.2 Available Powers. Any committee established pursuant to Section 5.1 hereof, to the extent permitted by applicable law and by resolution of the Board, shall have and may exercise all of the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it.

Section 5.3 Alternate Members. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee.

Section 5.4 Procedures. Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by such committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate member, unless such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such meeting) shall constitute a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall be the act of the committee, except as otherwise specifically provided by applicable law, the Certificate of Incorporation, these Bylaws or the Board. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without notice other than an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and except as provided in these Bylaws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to conduct its business pursuant to Article III and Article IV of these Bylaws.

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Article VI

OFFICERS

Section 6.1 Officers. The officers of the Corporation elected by the Board shall be a Chief Executive Officer and such other officers (which may include, without limitation, a Chief Financial Officer, a Secretary, a President, Vice Presidents, Assistant Secretaries and a Treasurer) as the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article VI. Such officers shall also have such powers and duties as from time to time may be conferred by the Board. The Chief Executive Officer or President may also appoint such other officers (which may include, without limitation, one or more Vice Presidents and Controllers) as may be necessary or desirable for the conduct of the business of the Corporation. Such other officers shall have such powers and duties and shall hold their offices for such terms as may be provided in these Bylaws or as may be prescribed by the Board or, if such officer has been appointed by the Chief Executive Officer or President, as may be prescribed by the appointing officer.

(a) Chief Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters, except to the extent any such powers and duties have been prescribed to the Chairperson of the Board pursuant to Section 3.7 above. In the absence (or inability or refusal to act) of both the Chairperson of the Board and the Lead Independent Director, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board. The position of Chief Executive Officer and President may be held by the same person.

(b) President. The President, if any, shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved for the final executive responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairperson of the Board and Chief Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board. The President shall also perform such duties and have such powers as shall be designated by the Board. The position of President and Chief Executive Officer may be held by the same person.

(c) Vice Presidents. In the absence (or inability or refusal to act) of the President, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board), shall perform the duties and have the powers of the President. Any one or more of the Vice Presidents may be given an additional designation of rank or function.

(d) Secretary.

(i) The Secretary, if any, shall attend all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings of such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chairperson of the Board, Chief Executive Officer or President.

(ii) The Secretary, if any, shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s transfer agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders and their addresses, and the number and classes of shares held by each.

(e) Assistant Secretaries. The Assistant Secretary, if any, or, if there be more than one, the Assistant Secretaries in the order determined by the Board shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.

(f) Chief Financial Officer. The Chief Financial Officer, if any, shall perform all duties commonly incident to that office (including, without limitation, in respect of the care and custody of the funds and securities of the Corporation, including the deposit of the funds of the Corporation in such banks or trust companies as the Board, the Chief Executive Officer or the President may authorize).

(g) Treasurer. The Treasurer, if any, shall, in the absence (or inability or refusal to act) of the Chief Financial Officer, perform the duties and exercise the powers of the Chief Financial Officer.

Section 6.2 Term of Office; Removal; Vacancies. The elected officers of the Corporation shall be appointed by the Board and shall hold office until their successors are duly elected and qualified by the Board or until their earlier death, resignation, retirement, disqualification or removal from office. Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by the Chief Executive Officer or President may also be removed, with or without cause, by the Chief Executive Officer or President, as the case may be, unless the Board otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled by the Board. Any vacancy occurring in any office appointed by the Chief Executive Officer or President may be filled by the Chief Executive Officer, or President, as the case may be, unless the Board then determines that such office shall thereupon be elected by the Board, in which case the Board shall elect such officer.

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Section 6.3 Other Officers. The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and agents or delegate the power to remove same, as it shall from time to time deem necessary or desirable.

Section 6.4 Multiple Officeholders; Stockholder and Director Officers. Any number of offices may be held by the same person unless the Certificate of Incorporation or these Bylaws otherwise provide. Officers need not be stockholders or residents of the State of Delaware.

Article VII

SHARES

Section 7.1 Uncertificated Shares. The shares of any class or series of capital stock of the Corporation shall be uncertificated and registered in book-entry form.

Section 7.2 Multiple Classes of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the Corporation shall, within a reasonable time after the issuance or transfer of such shares, send to the registered owner thereof a written notice containing a summary of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights; provided, however, that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there may be set forth on such written notice a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights.

Section 7.3 Consideration and Payment for Shares.

(a) Subject to applicable law and the Certificate of Incorporation, shares of stock may be issued for such consideration, having in the case of shares with par value a value not less than the par value thereof, and to such persons, as determined from time to time by the Board. The consideration may consist of any tangible or intangible property or any benefit to the Corporation including cash, promissory notes, services performed, contracts for services to be performed or other securities, or any combination thereof.

(b) Subject to applicable law and the Certificate of Incorporation, shares may not be issued until the full amount of the consideration has been paid, unless upon the books and records of the Corporation there shall have been set forth the total amount of the consideration to be paid therefor and the amount paid thereon up to and including the time said shares are issued.

Section 7.4 Transfer of Stock.

(a) Subject to the restrictions set forth in Section 7.6, all transfers of shares shall be made on the books of the Corporation, by the holder of the shares, in person or by his or her attorney, in such manner as the Board or any officer of the Corporation may prescribe and subject to any applicable law, rule or regulation. The Corporation shall be entitled to treat the holder of record of any shares of its capital stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.

(b) Whenever any transfer of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry of transfer if, when the instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request the Corporation to do so.

Section 7.5 Registered Stockholders. Before due presentment of an instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner as the person exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation, vote such shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers of the owner of such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee on behalf of such person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying such other conditions as are provided under applicable law, may also so inspect the books and records of the Corporation.

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Section 7.6 Effect of the Corporation’s Restriction on Transfer.

(a) A written restriction on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the Corporation that may be owned by any person or group of persons, if permitted by the DGCL and contained in a notice, offering circular or prospectus sent by the Corporation to the registered owner of such shares within a reasonable time prior to or after the issuance or transfer of such shares, may be enforced against the holder of such shares or any successor or transferee of the holder, including an executor, administrator, trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of the holder.

(b) A restriction imposed by the Corporation on the transfer or the registration of shares of the Corporation or on the amount of shares of the Corporation that may be owned by any person or group of persons, even if otherwise lawful, is ineffective against a person without actual knowledge of such restriction unless such restriction was contained in a notice, offering circular or prospectus sent by the Corporation to the registered owner of such shares prior to or within a reasonable time after the issuance or transfer of such shares.

Section 7.7 Regulations. The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of law, as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares of stock or certificates representing shares. The Board may appoint one or more transfer agents or registrars.

Article VIII

NDEMNIFICATION

Section 8.1 Right to Indemnification. To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “Proceeding”), by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (hereinafter an “Indemnitee”), whether the basis of such Proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, Employment Retirement Income Security Act of 1974 excise taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such Proceeding; provided, however, that, except as provided in Section 8.3 with respect to Proceedings to enforce rights to indemnification, the Corporation shall indemnify an Indemnitee in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the Board.

Section 8.2 Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 8.1, an Indemnitee shall also have the right to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including, without limitation, attorneys’ fees) incurred in defending or otherwise participating in any such Proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the DGCL requires, an advancement of expenses incurred by an Indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon the Corporation’s receipt of an undertaking (hereinafter an “undertaking”), by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this Article VIII or otherwise.

Section 8.3 Right of Indemnitee to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not paid in full by the Corporation within 60 days after a written claim therefor has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by an Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (b) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final judicial decision from which there is no further right to appeal that, the Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including a determination by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, shall be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation.

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Section 8.4 Non-Exclusivity of Rights. The rights provided to any Indemnitee pursuant to this Article VIII shall not be exclusive of any other right, which such Indemnitee may have or hereafter acquire under applicable law, the Certificate of Incorporation, these Bylaws, an agreement, a vote of stockholders or disinterested directors, or otherwise.

Section 8.5 Insurance. The Corporation may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.

Section 8.6 Indemnification of Other Persons. This Article VIII shall not limit the right of the Corporation to the extent and in the manner authorized or permitted by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting the foregoing, the Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation and to any other person who is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, to the fullest extent of the provisions of this Article VIII with respect to the indemnification and advancement of expenses of Indemnitees under this Article VIII.

Section 8.7 Amendments. Any repeal or amendment of this Article VIII by the Board or the stockholders of the Corporation or by changes in applicable law, or the adoption of any other provision of these Bylaws inconsistent with this Article VIII, will, to the extent permitted by applicable law, be prospective only (except to the extent such amendment or change in applicable law permits the Corporation to provide broader indemnification rights to Indemnitees on a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.

Section 8.8 Certain Definitions. For purposes of this Article VIII, (a) references to “other enterprise” shall include any employee benefit plan; (b) references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; (c) references to “serving at the request of the Corporation” shall include any service that imposes duties on, or involves services by, a person with respect to any employee benefit plan, its participants, or beneficiaries; and (d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interest of the Corporation” for purposes of Section 145 of the DGCL.

Section 8.9 Contract Rights. The rights provided to Indemnitees pursuant to this Article VIII shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators.

Section 8.10 Severability. If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Article VIII shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VIII (including, without limitation, each such portion of this Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.

Article IX

MISCELLANEOUS

Section 9.1 Place of Meetings. If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required under these Bylaws is not designated in the notice of such meeting, such meeting shall be held at the principal business office of the Corporation; provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at any place, but instead shall be held by means of remote communication pursuant to Section 9.5 hereof, then such meeting shall not be held at any place.

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Section 9.2 Fixing Record Dates.

(a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the business day next preceding the day on which notice is given. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

(b) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

Section 9.3 Means of Giving Notice.

(a) Notice to Stockholders. Whenever under applicable law, the Certificate of Incorporation or these Bylaws notice is required to be given to any stockholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by a nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented to by the stockholder, to the extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL. A notice to a stockholder shall be deemed given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the Corporation, and (iv) if given by a form of electronic transmission consented to by the stockholder to whom the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile transmission, when directed to a number at which the stockholder has consented to receive notice, (B) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice, (C) if by a posting on an electronic network together with separate notice to the stockholder of such specified posting, upon the later of (1) such posting and (2) the giving of such separate notice, and (D) if by any other form of electronic transmission, when directed to the stockholder. A stockholder may revoke such stockholder’s consent to receiving notice by means of electronic communication by giving written notice of such revocation to the Corporation. Any such consent shall be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the Secretary or an Assistant Secretary or to the Corporation’s transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.

(b) Electronic Transmission. “Electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process, including but not limited to transmission by telex, facsimile telecommunication, electronic mail, telegram and cablegram.

(c) Notice to Stockholders Sharing Same Address. Without limiting the manner by which notice otherwise may be given effectively by the Corporation to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation or these Bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. A stockholder may revoke such stockholder’s consent by delivering written notice of such revocation to the Corporation. Any stockholder who fails to object in writing to the Corporation within 60 days of having been given written notice by the Corporation of its intention to send such a single written notice shall be deemed to have consented to receiving such single written notice.

(d) Exceptions to Notice Requirements. Whenever notice is required to be given, under the DGCL, the Certificate of Incorporation or these Bylaws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting that shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.

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Whenever notice is required to be given by the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these Bylaws, to any stockholder to whom (1) notice of two consecutive annual meetings of stockholders and all notices of stockholder meetings or of the taking of action by written consent of stockholders without a meeting to such stockholder during the period between such two consecutive annual meetings, or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on securities during a 12-month period, have been mailed addressed to such stockholder at such stockholder’s address as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting that shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given. If any such stockholder shall deliver to the Corporation a written notice setting forth such stockholder’s then current address, the requirement that notice be given to such stockholder shall be reinstated. In the event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate need not state that notice was not given to persons to whom notice was not required to be given pursuant to Section 230(b) of the DGCL. The exception in subsection (1) of the first sentence of this paragraph to the requirement that notice be given shall not be applicable to any notice returned as undeliverable if the notice was given by electronic transmission.

Section 9.4 Waiver of Notice. Whenever any notice is required to be given under applicable law, the Certificate of Incorporation, or these Bylaws, a written waiver of such notice, signed before or after the date of such meeting by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled to said notice, shall be deemed equivalent to such required notice. All such waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such meeting, except where a person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.

Section 9.5 Meeting Attendance via Remote Communication Equipment.

(a) Stockholder Meetings. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders entitled to vote at such meeting and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:

(i) participate in a meeting of stockholders; and

(ii) be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication; provided that (A) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder, (B) the Corporation shall implement reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxy holder votes or takes other action at the meeting by means of remote communication, a record of such votes or other action shall be maintained by the Corporation.

(b) Board Meetings. Unless otherwise restricted by applicable law, the Certificate of Incorporation or these Bylaws, members of the Board or any committee thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone, videoconference or other communications equipment by means of which all persons participating in the meeting can hear each other. Such participation in a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.

Section 9.6 Dividends. The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Certificate of Incorporation.

Section 9.7 Reserves. The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.

Section 9.8 Contracts and Negotiable Instruments. Except as otherwise provided by applicable law, the Certificate of Incorporation or these Bylaws, any contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the Corporation by such officer or officers or other employee or employees of the Corporation as the Board may from time to time authorize. Such authority may be general or confined to specific instances as the Board may determine. The Chairperson of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer or any Vice President may execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed by the Board, the Chairperson of the Board Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Vice President may delegate powers to execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation to other officers or employees of the Corporation under such person’s supervision and authority, it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.

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Section 9.9 Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board.

Section 9.10 Seal. The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.

Section 9.11 Books and Records. The books and records of the Corporation may be kept within or outside the State of Delaware at such place or places as may from time to time be designated by the Board.

Section 9.12 Resignation. Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission to the Chairperson of the Board, the Chief Executive Officer, the President or the Secretary. The resignation shall take effect at the time specified therein, or at the time of receipt of such notice if no time is specified or the specified time is earlier than the time of such receipt. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

Section 9.13 Surety Bonds. Such officers, employees and agents of the Corporation (if any) as the Chairperson of the Board, Chief Executive Officer, President or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the restoration to the Corporation, in case of their death, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers, money and other property of whatever kind in their possession or under their control belonging to the Corporation, in such amounts and by such surety companies as the Chairperson of the Board, Chief Executive Officer, President or the Board may determine. The premiums on such bonds shall be paid by the Corporation and the bonds so furnished shall be in the custody of the Secretary.

Section 9.14 Securities of Other Corporations. Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairperson of the Board, Chief Executive Officer, President or any Vice President or any other officer authorized by the Board. Any such officer, may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities, or to consent in writing, in the name of the Corporation as such holder, to any action by such corporation, and at any such meeting or with respect to any such consent shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed. The Board may from time to time confer like powers upon any other person or persons.

Section 9.15 Amendments. The Board shall have the power to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the Bylaws. The Bylaws also may be adopted, amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by applicable law or the Certificate of Incorporation, the affirmative vote of the holders of at least 66 2/3% of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the Bylaws; and provided further, however, that no Bylaws hereafter adopted by the stockholders of the Corporation shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.

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EX-4.2

 

Exhibit 4.2

 

NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.

 

CLASS A COMMON STOCK PURCHASE WARRANT

 

Pinstripes Holdings, Inc.

 

Warrant Shares: [      ] Initial Exercise Date: [      ]

 

THIS COMMON STOCK PURCHASE WARRANT (this “Warrant”) certifies that, for value received, Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date of this Warrant (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on the date that is ten (10) years after the date of this Warrant (the “Termination Date”) but not thereafter, to subscribe for and purchase from Pinstripes Holdings, Inc., a Delaware corporation (the “Company”), up to [ ] shares of Class A common stock (as subject to adjustment hereunder, the “Warrant Shares”), par value $0.0001 per share, of the Company (the “Common Stock”). The purchase price of one Warrant Share under this Warrant shall be equal to the Warrant Price, as defined in Section 1(a). Capitalized terms not defined herein have the meanings ascribed to them in the Loan Agreement, dated as of December 29, 2023, by and among Pinstripes, Inc., the Company, Oaktree Fund Administration, LLC, as agent for the Lenders and the Lenders party thereto.

 

Section 1.            Exercise of Warrant.

 

(a)   Warrant Price. This Warrant shall entitle the Holder, subject to the provisions of this Warrant, to purchase from the Company the Warrant Shares, at the price of $0.01 per share, subject to the adjustments provided in Section 2 hereof and in the last sentence of this Section 1(a). The term “Warrant Price” as used in this Warrant shall mean the price per share (including in cash or by “cashless exercise,” to the extent permitted hereunder) described in the prior sentence at which Warrant Shares may be purchased at the time this Warrant is exercised.

 

(b)   Exercise of Warrant.

 

(i)            Subject to the provisions of this Warrant, exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company (or such other office or agency that the Company may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company), as applicable, of (i) a duly executed facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”) and (ii) the payment in full of the Warrant Price for each Warrant Share as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the Warrant Shares and the issuance of such Warrant Shares, as follows:

 

(1) by wire transfer or cashier’s check drawn on a United States bank; or

 

(2) by surrendering this Warrant in whole or in part for that number of Warrant Shares equal to the quotient obtained by dividing (x) the product of the number of Warrant Shares as to which this Warrant is exercised, multiplied by the excess of the “Exercise Fair Market Value” (as defined below) over the Warrant Price by (y) the Exercise Fair Market Value. Solely for purposes of this subsection 1(b)(i)(2), the “Exercise Fair Market Value” shall mean the average last reported sale price per share of the Common Stock for the ten (10) trading days ending on the third (3rd) trading day prior to the date on which notice of exercise of the Warrant is sent to the Company;

 

 

 

 

(ii)            No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required.

 

(iii)            Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Business Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.

 

(iv)            The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business Day of receipt of such notice.

 

(c)   Issuance of Common Stock on Exercise. As soon as reasonably practicable after the exercise of the Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to subsection 1(b)(i)(1)), the Company shall issue, or cause the transfer agent for the Common Stock to issue, to the Holder a book-entry position or certificate, as applicable, for the number of Warrant Shares to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it on the register of members of the Company, and if this Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of Warrant Shares as to which this Warrant shall not have been exercised. No Warrant shall be exercisable and the Company shall not be obligated to issue Warrant Shares upon exercise of this Warrant unless the Warrant Shares issuable upon this Warrant exercise have been registered, qualified or deemed to be exempt from registration or qualification under the securities laws of the state of residence of the Holder. The Holder of this Warrant may exercise this Warrant only for a whole number of Warrant Shares. If, by reason of any exercise of this Warrant on a “cashless basis,” the Holder would be entitled, upon the exercise of this Warrant, to receive a fractional interest in a Warrant Share, the Company shall round down to the nearest whole number, the number of Warrant Shares to be issued to the Holder.

 

(d)   Valid Issuance. All Warrant Shares issued upon the proper exercise of this Warrant in conformity with this Warrant shall be validly issued, fully paid and nonassessable.

 

(e)   Date of Issuance. Each person in whose name any book-entry position or certificate, as applicable, for Warrant Shares is issued shall for all purposes be deemed to have become the holder of record of such Warrant Shares on the date on which this Warrant, or book-entry position representing this Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the share transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the share transfer books or book-entry system are open.

 

(f)    Maximum Percentage. The Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 1(f); however, the Holder shall not be subject to this Section 1(f) unless he, she or it makes such election. If the election is made by the Holder, the Company shall not effect the exercise of this Warrant by the Holder, and such Holder shall not have the right to exercise this Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Company’s knowledge, would beneficially own in excess of 4.8% (or such other amount as the Holder may specify) (the “Maximum Percentage”) of the Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of Warrant Shares issuable upon exercise of this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of this Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred shares or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Each delivery of a Notice of Exercise by the Holder will constitute a representation by the Holder, upon which the Company shall be entitled to rely without investigation, that the Holder has evaluated the limitation set forth in this paragraph and determined that the issuance of the full number of Warrant Shares requested in such Notice of Exercise is permitted under this paragraph. For purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Annual Report, Quarterly Report, Current Report or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or its transfer agent, setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the Holder, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any case, the number of issued and outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the Holder and its affiliates since the date as of which such number of issued and outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.

 

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Section 2.            Adjustments.

 

(a)    Split-Ups. If after the date hereof, and subject to the provisions of Section 2(f) below, the number of issued and outstanding shares of Common Stock is increased by a stock dividend of shares of Common Stock, or by a split-up of shares of Common Stock or other similar event, then, on the effective date of such stock dividend, split-up or similar event, the number of shares of Common Stock issuable on exercise of this Warrant shall be increased in proportion to such increase in the issued and outstanding shares of Common Stock. If at any time after the date hereof, the Company grants, issues or sells any options, convertible securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights that the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon exercise in full of this Warrant (without regard to the Maximum Percentage (if applicable)) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights; provided, however, that that the Holder’s election of a Maximum Percentage pursuant to Section 2(f) hereof, if any, shall automatically and without further action by the Holder, be deemed to apply to the Purchase Rights of the Holder on the same terms as set forth in Section 2(f) (subject to appropriate conforming changes to reflect that nature of the Purchase Rights).

 

(b)    Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 2(f) hereof, the number of issued and outstanding shares of Common Stock is decreased by a consolidation, combination, reverse stock split, reclassification of shares of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse stock split, reclassification or similar event, the number of shares of Common Stock issuable on exercise of this Warrant shall be decreased in proportion to such decrease in issued and outstanding shares of Common Stock.

 

(c)    Adjustments in Exercise Price. Whenever the number of shares of Common Stock purchasable upon the exercise of this Warrant is adjusted, as provided in Section 2(a) or Section 2(b) above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of shares of Common Stock so purchasable immediately thereafter. In no event shall the Warrant Price be reduced to less than the par value per share issuable upon exercise of such Warrant.

 

(d)    Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the issued and outstanding shares of Common Stock (other than a change under Section 2(a) or Section 2(b) hereof or that solely affects the par value of such shares of Common Stock), or in the case of any merger or consolidation of the Company with or into another corporation (other than a merger or consolidation in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the issued and outstanding shares of Common Stock), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the holder of this Warrant shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares, stock or other equity securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the Holder would have received if he, she or it had exercised this Warrant in full immediately prior to such event (the “Alternative Issuance”); provided, however, that (i) if the holders of Common Stock were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such merger or consolidation, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Common Stock in such merger or consolidation that affirmatively make such election, and (ii) if a tender, exchange or redemption offer shall have been made to and accepted by the holders of Common Stock under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act) more than 50% of the issued and outstanding shares of Common Stock, the Holder shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which the Holder would actually have been entitled as a stockholder if the Holder had exercised this Warrant in full prior to the expiration of such tender or exchange offer, accepted such offer and all of the shares of Common Stock held by the Holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 2. If any reclassification or reorganization also results in a change in shares of Common Stock covered by Section 2(a) or Section 2(b), then such adjustment shall be made pursuant to Section 2(a), Section 2(b) and this Section 2(d). The provisions of this Section 2(d) shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. In no event shall the Warrant Price be reduced to less than the par value per share issuable upon exercise of such Warrant.

 

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(e)    Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of Warrant Shares issuable upon exercise of this Warrant, the Company shall give written notice thereof to the Holder, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares of Common Stock purchasable at such price upon the exercise of this Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Section 2(a), Section 2(b) or Section 2(d), the Company shall give written notice of the occurrence of such event to the Holder of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.

 

(f)    No Fractional Shares. Notwithstanding any provision contained in this Warrant to the contrary, the Company shall not issue fractional shares upon the exercise of this Warrant. If, by reason of any adjustment made pursuant to this Section 2, the Holder would be entitled, upon the exercise of this Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number the number of Warrant Shares to be issued to the Holder.

 

(g)   Form of Warrant. The form of this Warrant need not be changed because of any adjustment pursuant to this Section 2, and a Warrant issued after such adjustment may state the same Warrant Price and the same number of shares as is stated in this Warrant as initially issued; provided, however, that the Company may at any time in its sole discretion make any change in the form of this Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for this Warrant or otherwise, may be in the form as so changed.

 

Section 3.            Representations and Warranties of the Company. The Company hereby represents and warrants to the Holder on the date hereof, on each date on which this Warrant is exercised and on each date Warrant Shares are delivered to the Holder pursuant hereto, that:

 

(a)   Incorporation and Corporate Power. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in every jurisdiction in which the failure to so qualify would be reasonably expected to have a material adverse effect on the financial condition, operating results or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by this Warrant.

 

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(b)   Authorization; No Breach.

 

(i) The execution, delivery and performance of this Warrant, and, subject to proper exercise of this Warrant and against payment therefor, the Warrant Shares underlying this Warrant, have been duly authorized by the Company. This Warrant constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equitable principles (whether considered in a proceeding in equity or law).

 

(ii) The execution and delivery by the Company of this Warrant, the issuance and sale of this Warrant, the issuance of the Warrant Shares upon exercise of this Warrant and the fulfillment of and compliance with the terms hereof by the Company, do not and will not as of the date hereof and each date on which this Warrant is exercised (a) conflict with or result in a breach of the terms, conditions or provisions of, (b) constitute a default under, (c) result in the creation of any lien, security interest, charge or encumbrance upon the Company’s capital stock or assets under, (d) result in a violation of, or (e) require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any court or administrative or governmental body or agency pursuant to the Company’s amended and restated certificate of incorporation and amended and restated bylaws or any material law, statute, rule or regulation to which the Company is subject, or any agreement, order, judgment or decree to which the Company is subject, except for any filings required after the date hereof under federal or state securities laws (including as contemplated by Section 5 hereof) and except as would not have a material adverse on the Company’s ability to perform its obligations under this Warrant.

 

(c)   Authorization of this Warrant. The Company has duly authorized the issuance and sale of this Warrant, and, subject to proper exercise of this Warrant and against payment therefor, the Warrant Shares underlying this Warrant, to the Holder.

 

(d)   Title to Securities. All Warrant Shares issued upon the proper exercise of this Warrant in conformity with this Warrant shall be validly issued, fully paid and nonassessable. The Warrant Shares issuable upon exercise of this Warrant have been reserved for issuance. Upon issuance in accordance with the terms hereof, the Holder will have good title to this Warrant, including the Warrant Shares issuable upon exercise of this Warrant, when and as this Warrant is exercised, free and clear of all liens, claims and encumbrances of any kind, other than (i) transfer restrictions hereunder and under the other agreements contemplated hereby (including Section 4 hereof), (ii) transfer restrictions under federal and state securities laws, and (iii) liens, claims or encumbrances imposed due to the actions of the Holder.

 

Section 4.          Transfer of Warrant.

 

(a)   Transferability.

 

(i) This Warrant (including the Warrant Shares issuable upon exercise of this Warrant), may not be transferred, assigned or sold until twelve (12) months after the Closing Date (the “Lock-up Period”); provided, however, that notwithstanding the restriction in this Section 4(a)(i), this Warrant and any Warrant Shares issued upon exercise of this Warrant may, during such Lock-up Period, be transferred by the holder (i) to an Affiliate of the Holder, (b) pursuant to pro rata distributions from the entity to its members, partners, or shareholders pursuant to the entity’s governing documents, (c) by virtue of the Holder’s governing documents upon liquidation or dissolution of the entity, or (d) in the event of the Company’s completion of a liquidation, merger, share exchange or other similar transaction which results in all or substantially all of the public stockholders having the right to exchange their Common Stock for cash, securities or other property; provided, further, that, in the case of clauses (a) through (c), these permitted transferees (the “Permitted Transferees”) must, as a condition to the transfer of the Warrant or Warrant Shares thereto, enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Warrant. If any transfer is made or attempted during the Lock-Up Period in violation of the provisions of this Section 4(a), such purported transfer shall be null and void ab initio, and the Company and its transfer agent shall refuse to recognize any purported transferee of the Warrants or the Warrant Shares (as applicable) as one of its equity holders for any purpose.

 

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(ii) Beginning on the first day after the end of the Lock-up Period, and subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d), this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. During the Lock-up Period, this Warrant may be transferred to a Permitted Transferee in the same manner, subject to execution by such Permitted Transferee of the written agreement contemplated by Section 4(a)(i).

 

(b)    New Warrants. This Warrant may be divided or combined with other Warrants of identical terms (except as to the number of Warrant Shares issuable pursuant thereto) upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Initial Exercise Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.

 

(c)    Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.

 

(d)    Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule 144 under the Securities Act (“Rule 144”), the Company may require, as a condition of allowing such transfer, that the transferee of this Warrant certifies as to the representation set forth in Section 4(e) and agrees in writing to be bound, with respect to this Warrant or portion hereof so transferred, by the provisions of this Warrant that apply to the “Holder.”

 

(e)    Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act.

 

(f)     Transfer Charges. No service charge shall be made for any exchange or registration of transfer of this Warrant.

 

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Section 5.            Registration Rights.

 

(a)    The parties agree that no event later than sixty (60) days after the Initial Exercise Date (the “Filing Date”), the Company will file with the U.S. Securities and Exchange Commission (the “Commission”) (at the Company’s sole cost and expense) a registration statement on Form S-1 or such other form of registration statement as is then available registering the resale of the Warrant Shares issuable upon exercise of this Warrant (the “Registration Statement”), and the Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the sixtieth (60th) calendar day (if the Commission notifies the Company that it will “review” such Registration Statement) following the Filing Date and (ii) the tenth (10th) Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review (the “Effectiveness Date”); provided, however, that the Company’s obligations to include the Holder’s Warrant Shares in the Registration Statement are contingent upon Holder furnishing in writing to the Company such information regarding Holder, the securities of the Company held by Holder and the intended method of distribution of the Warrant Shares as shall be reasonably requested by the Company to effect the registration of the Warrant Shares, and shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations. For the avoidance of doubt, the Company may satisfy its obligations under this Section 5 by including the Warrant Shares in a registration statement that the Company is otherwise required to filed with the Commission (and, accordingly, such registration statement, shall constitute the Registration Statement hereunder). The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use its commercially reasonable efforts to, at its expense, cause such Registration Statement or another registration statement (which may be a “shelf registration statement”) to remain effective with respect to Holder, keep any qualification, exemption or compliance under state securities laws which the Company determines to obtain continuously effective with respect to Holder, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until the earlier of (i) the date on which all of the Warrant Shares shall have been sold, or (ii) on the first date on which the Holder can sell all of its Warrant Shares (or shares received in exchange therefor) under Rule 144 without limitation as to the manner of sale, the amount of such securities that may be sold and without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), assuming cashless exercise of the Warrants; provided that, the Company shall be entitled to delay the filing or postpone the effectiveness of the Registration Statement, and from time to time to require Holder not to sell under the Registration Statement or to suspend the effectiveness thereof, if (A) the Company’s board of directors determines in good faith that, in order for the Registration Statement not to contain a material misstatement or omission, an amendment thereto would be needed, (B) the negotiation or consummation of a transaction by the Company or its subsidiaries is pending or an event has occurred or contemplated to occur, which negotiation, consummation or event the Company’s board of directors reasonably believes would require additional disclosure by the Company in the Registration Statement of material information that the Company has a bona fide business purpose for keeping confidential and the non-disclosure of which in the Registration Statement would be expected, in the reasonable determination of the Company’s board of directors to cause the Registration Statement to fail to comply with applicable disclosure requirements or (C) in the judgment of the Company’s board of directors, exercised in good faith, such filing or effectiveness or use of such Registration Statement would be seriously detrimental to the Company (such circumstance, a “Suspension Event”); provided, however, that the Company may not delay or suspend the Registration Statement for more than 45 consecutive calendar days or for more than 90 calendar days in any 360 day period. Upon receipt of any written notice from the Company (which notice shall not contain any material non-public information regarding the Company) of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event or otherwise the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, the Holder agrees that (1) it will immediately discontinue offers and sales of the Warrant Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until Holder receives copies of a supplemental or amended prospectus (which the Company agrees to promptly prepare subject to the delay provisions of this Section 5(a)) that corrects the misstatements or omissions referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Company that it may resume such offers and sales, and (2) it will maintain the confidentiality of any information included in such written notice delivered by the Company unless otherwise required by law or subpoena. If so directed by the Company, the Holder will deliver to the Company or, in the Holder’s sole discretion destroy, all copies of the prospectus covering the Warrant Shares in Holder’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Warrant Shares shall not apply (I) to the extent the Holder is required to retain a copy of such prospectus (x) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (y) in accordance with a bona fide pre-existing document retention policy or (II) to copies stored electronically on archival servers as a result of automatic data back-up.

 

(b)    The Company shall promptly advise the Holder:

 

(i) when a Registration Statement or any amendment thereto has been filed with the Commission and when such Registration Statement or any post-effective amendment thereto has become effective;

 

(ii) of any request by the Commission for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information;

 

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(iii) of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;

 

(iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Warrant Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

 

(v) subject to the provisions in this Warrant, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading.

 

(c)    Notwithstanding anything to the contrary set forth herein, without the Holder’s prior written consent, the Company shall not, when so advising the Holder of such events, provide the Holder with any material, nonpublic information regarding the Company other than to the extent that providing notice to the Holder of the occurrence of the events listed in (i) through (v) above constitutes material, nonpublic information regarding the Company or subjects the Holder to any duty of confidentiality.

 

(d)    The Company shall use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement if such order should be issued.

 

Except for such times as the Company is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement as contemplated by this Warrant, the Company shall use its commercially reasonable efforts to, as soon as reasonably practicable, prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Warrant Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(e)    the Company shall use its reasonable best efforts to cause all Warrant Shares to be listed on each securities exchange or automated quotation system, if any, on which the shares of Common Stock have been listed.

 

(f)     The Holder may deliver written notice (an “Opt-Out Notice”) to the Company requesting that the Holder not receive notices from the Company otherwise required by this Section 5; provided, however, that the Holder may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from the Holder (unless subsequently revoked), (i) the Company shall not deliver any such notices to the Holder and the Holder shall no longer be entitled to the rights associated with any such notice and (ii) each time prior to the Holder’s intended use of an effective Registration Statement, the Holder will notify the Company in writing at least two (2) Business Days in advance of such intended use, and if a notice of a Suspension Event was previously delivered (or would have been delivered but for the provisions of this Section 5(f)) and the related suspension period remains in effect, the Company will so notify the Holder, within one (1) Business Day of the Holder’s notification to the Company, by delivering to the Holder a copy of such previous notice of Suspension Event, and thereafter will provide the Holder with the related notice of the conclusion of such Suspension Event promptly following its availability.

 

(g)     Indemnification.

 

(i) The Company agrees to indemnify and hold harmless, to the extent permitted by Law, the Holder, its directors, and officers, employees, and agents, and each Person who controls the Holder (within the meaning of the Securities Act or the Exchange Act) and each Affiliate of the Holder (within the meaning of Rule 405 under the Securities Act), to the extent the Holder is a seller under the Registration Statement, from and against any and all losses, claims, damages, liabilities and expenses (including, without limitation, any reasonable attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, prospectus included in any Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances in which they were made) not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by or on behalf of the Holder expressly for use therein.

 

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(ii) The Holder, by acceptance hereof, agrees, in connection with any Registration Statement under which the Holder is a seller, severally and not jointly with any other Person, to indemnify and hold harmless the Company, its Affiliates and its and its Affiliates’ directors, officers, employees and agents, and each Person who controls the Company (within the meaning of the Securities Act or the Exchange Act) against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) resulting from any untrue statement of material fact contained in the Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances in which they were made) not misleading, but only to the extent that such untrue statement or omission is contained (or not contained, in the case of an omission) in any information or affidavit so furnished by or on behalf of the Holder expressly for use therein. In no event shall the liability of the Holder be greater in amount than the dollar amount of the net proceeds received by the Holder upon the sale of the Warrant Shares giving rise to such indemnification obligation.

 

(iii) Any Person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent. An indemnifying party who elects not to assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

(iv) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, Affiliate or controlling Person of such indemnified party and shall survive the transfer of the Warrant Shares.

 

(v) If the indemnification provided under this Section 5(g) from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made (or not made, in the case of an omission) by, or relates to information supplied (or not supplied, in the case of an omission) by or on behalf of, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the other limitations set forth in this Section 5, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5 from any Person who was not guilty of such fraudulent misrepresentation. Any contribution pursuant to this Section 5(g) by any seller of Warrant Shares shall be limited in amount to the amount of net proceeds received by such seller from the sale of such Warrant Shares pursuant to the Registration Statement. Notwithstanding anything to the contrary herein, in no event will any party be liable for consequential, special, exemplary or punitive damages in connection with this Agreement.

 

9

 

 

(h)    Status of Registration. The Holder shall be entitled to inquire of the Company the status of the filing of the Registration Statement and the status of the effectiveness thereof at any time.

 

(i)     Legend Removal. The Warrant Shares shall bear (or otherwise be subject to) a customary legend regarding restrictions on transfer under the Securities Act. Notwithstanding the foregoing, the Company will use its commercially reasonable efforts to (A) at the reasonable request of the Holder, deliver all the necessary documentation to cause the transfer agent to the Company to remove all restrictive legends from any of the Warrant Shares being sold under the Registration Statement or pursuant to Rule 144 at the time of sale of such Warrant Shares, and (B) deliver or cause its legal counsel to deliver to the transfer agent to the Company the necessary legal opinions or instruction letters required by the transfer agent to the Company, if any, in connection with the instruction under clause (A), in each case in the case of clauses (A) and (B), upon the receipt of the Holder’s representation letters and such other customary supporting documentation as requested by (and in a form reasonably acceptable to) the Company and its counsel. The Holder agrees to disclose its respective beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Warrant Shares to the Company (or its successor) upon reasonable request to assist the Company in making the determination described above.

 

Section 6.          Miscellaneous.

 

(a)    No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any of the rights of a stockholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.

 

(b)    Lost, Stolen, Mutilated, or Destroyed Warrants. If this Warrant is lost, stolen, mutilated, or destroyed, the Company may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as this Warrant. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.

 

(c)    Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business Day.

 

(d)    Authorized Shares.

 

(i)            The Company covenants that, during the period this Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant (without regard to any limitation on exercise set forth herein). The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the national securities upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).

 

(ii)            Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its amended and restated memorandum and articles of association or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.

 

10

 

 

(iii)            Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.

 

(e)    Applicable Law and Forum. The validity, interpretation, and performance of this Warrant shall be governed in all respects by the laws of the State of New York. The Company and the Holder hereby agree that any action, proceeding or claim against it arising out of, or otherwise based on, this Warrant, including under the Securities Act, may be brought and enforced in the courts of the State of New York located in the County of New York or the United States District Court for the Southern District of New York, and irrevocably submit to such jurisdiction, which jurisdiction shall be a non-exclusive forum for any such action, proceeding or claim. The Company and the Holder hereby waive any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Notwithstanding the foregoing, the provisions of this Section 6(e) will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal district courts of the United States of America are the sole and exclusive forum.

 

Any person or entity purchasing or otherwise acquiring any interest in this Warrant shall be deemed to have notice of and to have consented to the forum provisions in this Section 6(e).

 

(f)     Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered or exempt from registration, will have restrictions upon resale imposed by state and federal securities laws.

 

(g)    Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.

 

(h)    Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email attachment at the e-mail address as set forth on the signature pages attached hereto at or prior to 5:00 p.m. (New York City time) on a Business Day, (b) the next Business Day after the time of transmission, if such notice or communication is delivered via email attachment at the e-mail address as set forth on the signature pages attached hereto on a day that is not a Business Day or later than 5:00 p.m. (New York City time) on any Business Day, (c) the second (2^nd) Business Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.

 

(i)     Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any shares of Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.

 

(j)     Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.

 

11

 

 

(k)    Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.

 

(l)            Amendment. This Warrant may be modified, waived or amended or the provisions hereof waived with the written consent of the Company and the Holder.

 

(m)            Severability. This Warrant shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Warrant or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Warrant a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

 

(n)            Counterparts. This Warrant may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

 

(o)            Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.

 

(p)            Interpretation. When a reference is made in this Warrant to a Section, such reference shall be to a Section of this Warrant unless otherwise indicated. The headings contained in this Warrant are for reference purposes only and shall not affect in any way the meaning or interpretation of this Warrant. Whenever the words “include,” “includes” or “including” are used in this Warrant, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Warrant shall refer to this Warrant as a whole and not to any particular provision of this Warrant unless the context requires otherwise. The words “date hereof’ when used in this Warrant shall refer to the date of this Warrant. The terms “or,” “any” and “either” are not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” The definitions contained in this Warrant are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Unless otherwise specifically indicated, all references to “dollars” or “$” shall refer to, and all payments hereunder shall be made in, the lawful money of the United States.

 

********************

(Signature Page Follows)

 

12

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Common Stock Purchase Warrant to be duly executed by their respective authorized signatories as of the date first indicated above.

 

Pinstripes Holdings, Inc.			Address for Notice:
By:
Name:
Title:			Email:
With a copy to (which shall not constitute notice):
Attn:
Email:

 

13

 

 

IN WITNESS WHEREOF, the undersigned have caused this Class A Common Stock Purchase Warrant to be duly executed by their respective authorized signatories as of the date first indicated above.

 

Name of Holder: Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies

 

Signature of Authorized Signatories of Holder:

 

By:
Name:	Evan Kramer
Title:	Vice President
By:
Name:	Patrick McCaney
Title:	Managing Director and Portfolio Manager

 

Email Address of Authorized Signatory: EKramer@oaktreecapital.com; Pmccaney@oaktreecapital.com

 

Address for Notice to Holder:

 

c/o Oaktree Capital Management, L.P.

333 South Grand Avenue

28th Floor

Los Angeles, CA 90071

Attention:  Evan Kramer; Patrick McCaney

Email:  EKramer@oaktreecapital.com; Pmccaney@oaktreecapital.com

 

With a copy to (which copy shall not constitute notice) to:

 

White & Case LLP
1221 Avenue of the Americas
New York, NY 10020-1095
Attention: Eliza McDougall
Telephone No.: (212) 819-2590
Email: eliza.mcdougall@whitecase.com

 

Address for Delivery of securities to Holder (if not same as address for notice):

 

Warrant Shares: [ ]

 

Beneficial Ownership Blocker ¨ 4.8% or ¨ 9.8%

 

14

 

 

EXHIBIT A

 

NOTICE OF EXERCISE

 

To:
	Attn:
	Email:

 

(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.

 

(2) Payment shall take the form of (check applicable box):

 

¨ in lawful money of the United States; or

 

¨ the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in Section 1(b)(i)(2), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in Section 1(b)(i)(2);

 

(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:

 

 

The Warrant Shares shall be delivered to the following DWAC Account Number:

 

     

 

(4) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.

 

[SIGNATURE OF HOLDER]

Name of Holder:
Signature of Holder:
Date:

 

15

 

 

EXHIBIT B

 

ASSIGNMENT FORM

 

(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)

 

FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to

 

Name:
		(Please Print)
Address:
		(Please Print)
Phone Number:
Email Address:
Dated: _______________ __, ______
Holder’s Signature:
Holder’s Address:

 

16

 

EX-10.1

Exhibit 10.1

EXECUTION VERSION

THE FOLLOWING INFORMATION IS SUPPLIED SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES. THIS TERM LOAN WAS ISSUED WITH “ORIGINAL ISSUE DISCOUNT” (“OID”) WITHIN THE MEANING OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. A HOLDER OR BENEFICIAL OWNER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, AND YIELD TO MATURITY FOR THIS TERM LOAN BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE ISSUER AT PINSTRIPES, INC., 1150 Willow Rd, Northbrook, IL 60062, ATTN: chief EXECUTIVE OFFICER

LOAN AGREEMENT 

BY AND AMONG

PINSTRIPES, INC.,
as Borrower

BANYAN ACQUISITION CORPORATION
as Holdings

Oaktree Fund Administration, LLC
as Agent for the Lenders

and

THE LENDERS PARTY HERETO

Table of Contents

Page

Section 1	TERM LOANS AND TERMS OF REPAYMENT		1
	1.1	Term Loans	1
	1.2	Payments	2
	1.3	Interest Rates	5
	1.4	Fees and Reimbursement of Expenses	5
	1.5	Maximum Interest	5
	1.6	Loan Account; Account Stated	6
	1.7	Application of Payments and Collections	6
	1.8	Collateral	6
	1.9	Taxes	6
	1.10	Increased Cost; Capital Adequacy	10
Section 2	TERM AND TERMINATION		11
	2.1	Term	11
	2.2	Termination; Effect of Termination	11
Section 3	CONDITIONS PRECEDENT		12
	3.1	Closing Conditions	12
Section 4	BORROWER’S REPRESENTATIONS AND WARRANTIES		14
	4.1	Existence and Rights; Predecessors	14
	4.2	Authority	14
	4.3	Litigation	14
	4.4	Financial Condition; Disclosure	15
	4.5	Taxes	15
	4.6	Material Agreements	15
	4.7	Title to Assets; Intellectual Property	16
	4.8	Compliance With Laws	16
	4.9	Business and Collateral Locations	16
	4.10	ERISA	16
	4.11	Labor Relations	16
	4.12	Anti-Terrorism Laws; Sanctions	17
	4.13	Capital Structure	17
	4.14	Perfection Certificate	17
	4.15	Accounts and Other Payment Rights	17
	4.16	Validity, Perfection and Priority of Security Interests	17
	4.17	Permits, Licenses and Other Approvals	18
	4.18	No Broker Fees	18
	4.19	Food Safety Laws	18
	4.20	Environmental Compliance	19
	4.21	Senior Indebtedness	19
	4.22	Liquor License Subsidiaries	19
	4.23	Reserved	19
	4.24	Business Combination	20
	4.25	Material Non-Public Information	20

 i

Section 5	AFFIRMATIVE COVENANTS		20
	5.1	Notices	20
	5.2	Maintenance of Rights and Properties	20
	5.3	Performance and Compliance with Material Contracts	20
	5.4	Visits and Inspections	21
	5.5	Taxes	21
	5.6	Financial Statements and Other Information	21
	5.7	Lender Calls	23
	5.8	Compliance with Laws	23
	5.9	Financial Covenants	23
	5.10	Maintenance of Insurance	23
	5.11	Covenant to Guarantee Obligations and Give Security	24
	5.12	Further Assurances	25
	5.13	Compliance with Environmental Laws	25
	5.14	Post-Closing Actions	26
	5.15	Additional Warrants.	27
	5.16	Holdings Public Listing. .	28
Section 6	NEGATIVE COVENANTS		28
	6.1	Fundamental Changes	28
	6.2	Conduct of Business; Asset Transfers	28
	6.3	Debt; Liens	28
	6.4	Loans; Advances; Investments	30
	6.5	Distributions	30
	6.6	ERISA	31
	6.7	Tax and Accounting Matters	31
	6.8	Restrictive Agreements	31
	6.9	Transactions with Affiliates	31
	6.10	Amendments to Material Contracts	31
	6.11	Prepayment of Debt	31
	6.12	Sale-Leasebacks	31
	6.13	Restrictions on Transfer of Material Intellectual Property	32
	6.14	Amendments to Debt Documents	32
	6.15	Liquor License Subsidiaries	32
	6.16	Passive Holding Company	32
	6.17	Cash Holding	32
Section 7	EVENTS OF DEFAULTS; REMEDIES		32
	7.1	Events of Default	32
	7.2	Remedies	35
	7.3	Cumulative Rights; No Waiver	36
	7.4	Application of Payments	36
Section 8	GENERAL PROVISIONS		37
	8.1	Accounting Terms	37
	8.2	Certain Matters of Construction	37
	8.3	Power of Attorney	37
	8.4	Notices and Communications	38
	8.5	Performance of Obligors’ Obligations	38

 ii

8.6	Agent	38
8.7	Successors and Assigns	42
8.8	General Indemnity	43
8.9	Interpretation; Severability	44
8.10	Indulgences Not Waivers	44
8.11	Modification; Counterparts; Electronic Signatures	44
8.12	Governing Law; Consent to Forum	45
8.13	Waiver of Certain Rights	45
8.14	Confidentiality	45
8.15	Board Appointment and Observers	46
8.16	Survival of Representations and Warranties. \	47
8.17	Division/Series Transactions	47
8.18	No Advisory or Fiduciary Responsibility.	48
8.19	PATRIOT Act.	48

Schedules

Terms Schedule

Definitions Schedule 

Schedule 1.1: Commitments

Schedule 6.3: Existing Debt/Liens

Schedule 6.8: Restrictive Agreements 

Exhibits 

Exhibit A: Form of Notice of Borrowing 

Exhibit B: Closing Documents Checklist

Exhibit C-1 to C-4: US Tax Compliance Certificates 

Exhibit D: Form of Warrant

 iii

LOAN AGREEMENT

THIS LOAN AGREEMENT (together with all schedules and exhibits hereto from time to time, and as amended, restated, amended and restated, supplemented or otherwise modified from time to time after the date hereof, this “Agreement”) is entered into this 29^th day of December, 2023, among PINSTRIPES, INC., a Delaware corporation, as borrower (the “Borrower”), BANYAN ACQUISITION CORPORATION, a Delaware corporation, which will become party to this Agreement upon consummation of the Business Combination and concurrent with the Business Combination shall amend its name to be PINSTRIPES HOLDINGS, INC. as holdings (“Holdings”), OAKTREE FUND ADMINISTRATION, LLC, as Agent for the Lenders (in such capacity, and together with any successor agent, the “Agent”) and the financial institutions and other institutional investors from time to time party hereto as lenders (the “Lenders”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Terms Schedule or the Definitions Schedule annexed hereto, as applicable. All schedules and exhibits annexed hereto, as well as the Perfection Certificate, are incorporated herein and made a part hereof.

Section 1 TERM LOANS AND TERMS OF REPAYMENT

1.1           Term Loans.

(a)            Subject to the terms and conditions of this Agreement, (i) each Tranche 1 Term Lender severally agrees to make a Tranche 1 Term Loan to the Borrower on the Closing Date in an amount equal to such Tranche 1 Term Lender’s Tranche 1 Term Loan Commitment and (ii) during the Tranche 2 Term Loan Availability Period, the Tranche 2 Term Lenders may elect, in their sole discretion, to make the Tranche 2 Term Loan to the Borrower in a single funding in an aggregate principal amount equal to $40,000,000; provided that after giving effect to such Term Borrowings, the Total Outstandings shall not exceed the Aggregate Commitments. Upon funding, the Tranche 2 Term Loans shall form a single tranche of Term Loans with the Tranche 1 Term Loan and shall be treated as one tranche hereunder in all respects. In the event that the Tranche 2 Term Lenders notify the Agent of their election to provide the Tranche 2 Term Loans during the Tranche 2 Term Loan Availability Period, the Agent shall promptly provide written notice (or telephonic notice promptly confirmed in writing) to the Borrower no later than three (3) Business Days in advance of the requested borrowing. Amounts borrowed under this Section 1.1(a) and repaid or prepaid may not be reborrowed and any amount drawn in respect of the Tranche 2 Term Loans may only be borrowed one time.

(b)            The proceeds of the Tranche 1 Term Loans shall be used solely by the Borrower (A) for general corporate purposes and (B) to pay fees and expenses incurred in connection with the transactions contemplated by this Agreement (including without limitation the Business Combination). The proceeds of the Tranche 2 Term Loans shall be used solely by the Borrower to refinance, terminate, and repay all outstanding amounts under and in respect of the Silverview Term Loan and to pay fees and expenses incurred in connection therewith. In no event may the proceeds of the Term Loans be used to purchase or to carry, or to reduce, retire or refinance any other Debt incurred other than repayment contemplated under this Section 1.1(b), to purchase or carry, any margin stock, as defined by Regulation U of the Board of Governors of the Federal Reserve System, or for any related purpose that violates the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System. The Term Loans and interest accruing thereon shall be evidenced by the records of the Agent (including the Loan Account) and by the Note(s).

1

1.2          Payments.

(a)           All payments with respect to any of the Obligations shall be made to the Agent for the account of the Lenders in United States dollars on the date when due, in immediately available funds, without any offset or counterclaim. Except where evidenced by Notes or other instruments made by the Borrower to a Lender specifically containing payment provisions in conflict with this Section 1.2 (in which event the conflicting provisions of such instruments shall govern and control), the Obligations shall be due and payable as follows:

(i)            On the Termination Date, the Borrower shall pay the aggregate unpaid principal amount of the Term Loans. Further, to the extent not previously paid, accrued and unpaid interest (if any), and any fees and expenses payable in accordance with the terms of the Loan Documents, shall be due and payable immediately upon the Termination Date together with, in the event of the occurrence of the Termination Date pursuant to clause (ii) of the definition thereof, the Make-Whole Amount.

(ii)           Interest accrued on the principal balance of the Term Loans shall be due and payable in accordance with Section 1.3 on (x) the last Business Day of each March, June, September and December (each, an “Interest Payment Date”), in arrears, computed for the period from and including the previous Interest Payment Date (or the Closing Date, in the case of the first Interest Payment Date occurring after the Closing Date) to but excluding such Interest Payment Date, with the first Interest Payment Date after the Closing Date to occur on March 29, 2024; and (y) the Termination Date; and

(iii)          The balance of the Obligations requiring the payment of money, if any, shall be due and payable as and when provided in the Loan Documents, or, if the date of payment is not specified in the Loan Documents, within five (5) Business Days’ after receipt by the Borrower of written demand therefor.

  

(iv)          Mandatory Prepayments.

  

(A)            Immediately upon the occurrence of a Change of Control, the Borrower shall prepay all of the outstanding Obligations, plus the Make-Whole Amount;

  

(B)            Immediately upon the receipt by any Obligor of any Net Proceeds from the incurrence of any Debt (other than Debt permitted to be incurred or issued pursuant to Section 6.3), the Borrower shall prepay the Obligations in an amount equal to 100% of the Net Proceeds from such incurrence of Debt plus the Make-Whole Amount;

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(C)             Immediately upon the occurrence of any asset dispositions (other than a Permitted Asset Disposition pursuant to clause (a) of the definition thereof) with Net Proceeds in excess of $250,000 in the aggregate in any Fiscal Year, the Borrower agrees to prepay the Obligations in an amount equal to 100% of the Net Proceeds from such asset dispositions plus the Make-Whole Amount; provided, however, that so long as no Event of Default has occurred and is continuing, the Borrower shall have the option, upon notice in writing to the Agent, to reinvest all or any portion of such Net Proceeds in a maximum amount of up to $500,000 in the aggregate in any Fiscal Year and up to $1,000,000 over the term of this Agreement, within one hundred eighty (180) days following receipt of same, to acquire assets useful in the Borrower’s business;

(D)             Immediately upon any Obligor suffering an Event of Loss of any property with Net Proceeds in excess of $100,000 in the aggregate in any Fiscal Year, the Borrower shall prepay the Obligations in an amount equal to 100% of the Net Proceeds from such Event of Loss (to the extent of such excess) plus the Make-Whole Amount; provided, however, that so long as no Event of Default has occurred and is continuing, the Borrower shall have the option, upon notice in writing to the Agent, to reinvest all or any portion of such Net Proceeds, within one hundred eighty (180) days following receipt of same, (i) in the amount necessary to repair or replace the property damaged, lost, destroyed or taken in such Event of Loss or, (ii) in a maximum amount of up to $500,000 in the aggregate in any Fiscal Year and up to $1,000,000 over the term of this Agreement, to otherwise acquire property useful in the Borrower’s business;

(E)             In the event that either (i) the registration statement for the resale of the shares of common stock underlying the Warrants has not been filed within 60 days after the Closing Date, or (ii) Holdings does not take commercially reasonable efforts to make such registration statement effective within 270 days after the Closing Date, the Borrower shall immediately prepay all of the outstanding Obligations, plus the Make-Whole Amount, if any; and

(F)             Each prepayment of the Obligations pursuant to the foregoing provisions of Section 1.2(a)(iv)(A)-(E) shall be applied in accordance with Section 1.7.

Notwithstanding anything in this Section 1.2(a)(iv) to the contrary, no prepayment required pursuant to Section 1.2(a)(iv) shall be required unless and until (x) with respect to mandatory prepayments pursuant to Sections 1.2(a)(iv)(A), (B), (D), (E) and (F), all outstanding amounts under and in respect of the Silverview Term Loan have been repaid in full and (y) with respect to mandatory prepayments pursuant to Section 1.2(a)(iv)(C), the First Priority Obligations Payment Date (as defined in the Silverview Intercreditor Agreement) and the First Priority Obligations Payment Date (as defined in the Granite Creek Intercreditor Agreement) shall have occurred).

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(v)           The Borrower may voluntarily prepay, in whole or in part, the Obligations at any time upon not less than thirty (30) days’ (or such shorter period as maybe agreed to by the Agent in writing) written notice (which such notice may state that it is subject to the completion of certain conditions as specified therein, including, without limitation, the consummation of a sale of substantially all of the assets of, or all of the outstanding Equity Interests in, the Borrower or a refinancing of the Obligations hereunder, in which case such notice may be revoked by the Borrower (by written notice to the Agent on or prior to the specified effective date) if such conditions are not satisfied) to the Agent and the Lenders, plus the Make-Whole Amount.

(b)           Whenever any payment of any Obligations shall be due on a day that is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day and interest thereon shall continue to accrue and shall be payable for the period pending receipt of the payment at the rate (or rates) otherwise applicable under this Agreement. If any amount applied to the Obligations is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other Person, then the Obligations or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such amount had not been made or received. The provisions hereof shall survive the Termination Date and payment in full of the Obligations.

(c)           Without limiting any other provision contained in this Agreement with respect to the payment of the Make-Whole Amount in connection with the payment of all or any portion of the Obligations prior to the Stated Maturity Date, in the event of the termination of this Agreement and repayment of the Obligations at any time prior to the Stated Maturity Date, for any reason, including (i) termination upon the election of the Agent or the Lenders to terminate after the occurrence and during the continuation of an Event of Default, (ii) foreclosure and sale of Collateral, (iii) sale of the Collateral in any Insolvency Proceeding, or (iv) restructuring, reorganization, or compromise of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure, or arrangement in any Insolvency Proceeding, then, in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Agent and the Lenders or profits lost by the Agent and the Lenders as a result of such early termination, and by mutual agreement of the parties as to a reasonable estimation and calculation of the lost profits or damages of the Agent and the Lenders, the Borrower shall pay to the Agent and the Lenders, the Make-Whole Amount. The parties hereto expressly agree that (I) the Make-Whole Amount and other fees referenced herein are intended to be liquidated damages (and not unmatured interest), are reasonable under the circumstances, and are the product of an arm’s length transaction between sophisticated business people ably represented by counsel, (II) all such fees shall be payable notwithstanding the then prevailing market rates at the time payment is made, (III) there has been a course of conduct between the Agent and the Lenders and the Obligors giving specific consideration in this transaction for such agreement to pay the Make-Whole Amount and all such other fees referenced in this Agreement, and (IV) the Borrower and the other Obligors shall be estopped hereafter from claiming differently than as agreed to in this Section 1.2(c). The Borrower expressly acknowledges that its agreement to pay the Make-Whole Amount and other fees referenced herein to the Lenders as herein described is a material inducement for the Lenders to make the Loans in exchange for the consideration therefor.

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1.3           Interest Rates. Each Term Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the sum of (x) 12.5%, payable at the Borrower’s election (by written notice three Business Days prior to the applicable Interest Payment Date) either in cash or in kind; provided that (i) interest payable in respect of any period following December 31, 2024 shall be paid in cash and (ii) if there is a Default or Event of Default that has occurred and is continuing, interest shall be paid in cash plus (y) 7.5%, payable at the Borrower’s election (by written notice three Business Days prior to the applicable Interest Payment Date) either in cash or in kind; provided that if there is a Default or Event of Default that has occurred and is continuing, interest shall be paid in cash. Any interest paid in kind shall accrue and be capitalized and added to the outstanding principal balance of the Term Loans on each Interest Payment Date. From and after each applicable Interest Payment Date, the outstanding principal amount of the Term Loans shall without further action by any party hereto be deemed to be increased by the aggregate amount of interest that is paid in kind so capitalized and added to the Term Loans in accordance with the immediately preceding sentence. All interest chargeable under this Agreement shall be computed on the basis of the actual number of days elapsed in a year of 360 days. At any time that an Event of Default exists, upon written notice by the Agent to the Borrower, the principal amount of the Obligations outstanding shall bear interest at the Default Rate.

1.4           Fees and Reimbursement of Expenses. In addition to any other fees, expenses or other amounts payable by the Borrower to the Agent and/or the Lenders, including, but not limited to, those pursuant to Section 8.8:

(a)           The Borrower shall pay to the Agent for the account of itself or the Lenders, as applicable, the fees set forth in Item 5(a) of the Terms Schedule; and

(b)           The Borrower shall reimburse the Agent and each Lender for all Lender Expenses and all other expenses as set forth in Item 5(b) of the Terms Schedule.

All fees shall be fully earned by the Agent and each Lender, as applicable, when due and payable; except as otherwise set forth herein or required by applicable law, shall not be subject to rebate, refund or proration; are and shall be deemed to be for compensation for services; and are not, and shall not be deemed to be, interest or any other charge for the use, forbearance or detention of money. All amounts chargeable to the Borrower under this Section 1.4 shall be Obligations secured by the Collateral, shall be payable on demand to the Agent or the Lenders, as applicable, and shall bear interest from the date such demand is made until paid in full at the rate applicable to the Term Loan from time to time.

1.5           Maximum Interest. In no event shall the aggregate of all amounts that are contracted for, charged or received by the Agent and the Lenders pursuant to the terms of the Loan Documents and that are deemed interest under applicable law exceed the highest rate permissible under any applicable law that a court of competent jurisdiction shall, in a final determination, deem applicable hereto. If any interest is charged or received in excess of the maximum rate allowable under applicable law (“Excess”), the Borrower acknowledges and stipulates that any such charge or receipt shall be the result of an accident and bona fide error, and such Excess, to the extent received, shall be applied first to reduce the principal Obligations and the balance, if any, returned to the Borrower, it being the intent of the parties hereto not to enter into a usurious or other illegal relationship. The provisions of this Section shall be deemed to be incorporated into every Loan Document (whether or not any provision of this Section is referred to therein).

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1.6           Loan Account; Account Stated. The Agent shall maintain for its books an account (the “Loan Account”) evidencing the Obligations resulting from the Term Loans, including the amount of principal and interest payable from time to time hereunder. Any failure of the Agent to make an entry in the Loan Account, or any error in doing so, shall not limit or otherwise affect the agreement of the Borrower to repay the Obligations in accordance with the Loan Documents. The entries made in the Loan Account shall constitute rebuttably presumptive evidence of the information therein, provided that if a copy of information contained in the Loan Account is provided to an Obligor, or an Obligor inspects the Loan Account at any time, then the information contained in the Loan Account shall be conclusive and binding on such Obligor for all purposes, absent manifest error, unless such Obligor notifies the Agent in writing within thirty (30) days after such Obligor’s receipt of such copy or such Obligor’s inspection of the Loan Account that it disputes the information contained therein.

1.7           Application of Payments and Collections. All payments pursuant to Sections 1.2(iv) and 1.2(v) shall be applied to the outstanding principal amount of Term Loans. Any payments of interest, fees, costs and expenses shall be applied to satisfy such obligations. All other payments and collections received at any time hereafter against the Obligations not otherwise specified in this Section 1.7 shall be applied as directed by the Borrower; provided that if the Borrower has not specified the manner in which such funds are to be applied, the Agent may apply such funds in a manner it deems advisable; provided, further, that application of payments is subject to the last paragraph of Section 1.2(a)(iv).

1.8           Collateral. All of the Obligations shall be secured by a continuing security interest and Lien upon the Collateral as and to the extent provided in the Security Agreement and the other Security Documents and subject to the terms of the Closing Date Intercreditor Agreements.

1.9           Taxes.

(a)           Defined Terms. For purposes of this Section 1.9, the term “Applicable Law” includes FATCA.

(b)           Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

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(c)           Payment of Other Taxes by Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law any Other Taxes or timely reimburse the Agent for the payment of Other Taxes.

(d)           Indemnification by Borrower. The Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e)            Indemnification by the Lenders. Each Lender shall severally indemnify the Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 8.7(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this paragraph (e).

(f)            Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 1.9, the Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.

(g)           Status of Lenders.

  

(i)            Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Agent, at the time or times reasonably requested by the Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (g)(ii)(A), (ii)(B) and (ii)(D) of this Section 1.9) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

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(ii)           Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,

(A)            any Lender that is a U.S. Person shall deliver to the Borrower and the Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B)             any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is applicable:

  

(1)              in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

  

(2)             executed copies of IRS Form W-8ECI;

(3)             in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit C-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W 8BEN-E; or

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(4)              to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W 8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-2 or Exhibit C-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-4 on behalf of each such direct and indirect partner;

(C)             any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Agent to determine the withholding or deduction required to be made; and

(D)             if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

  

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do so.

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(h)           Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 1.9 (including by the payment of additional amounts pursuant to this Section 1.9), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph (h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(i)            Survival. Each party’s obligations under this Section 1.9 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

1.10        Increased Cost; Capital Adequacy.

(i)            If any Change in Law shall subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto and the result of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any loan or of maintaining its obligation to make any such loan or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount), then, upon request of such Lender or other Recipient, the Borrower will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

(ii)            If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy or liquidity), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

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(iii)           A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company as specified in Section 1.10 and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

  

(iv)          Failure or delay on the part of any Lender to demand compensation pursuant to this Section 1.10 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 1.10 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

(v)           Survival. Each party’s obligations under this Section 1.10 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

  

Section 2 TERM AND TERMINATION

2.1           Term. Subject to the Lenders’ right to cease making Term Loans and other extensions of credit to the Borrower at any time on or after the Termination Date, each Lender’s Commitment shall become effective on the date of this Agreement (subject to satisfaction of the conditions set forth in Section 3 hereof) and shall expire on the Termination Date.

  

2.2           Termination; Effect of Termination.

(a)            Each Lender may terminate its Commitment, without notice, at any time that an Event of Default exists. Such Commitment shall automatically terminate upon the occurrence of an Event of Default resulting from the commencement of an Insolvency Proceeding by or against the Borrower or any other Obligor.

(b)            The aggregate Tranche 1 Term Loan Commitments shall be automatically and permanently reduced to zero on the Closing Date upon the making of the Tranche 1 Term Borrowing on the Closing Date (after giving effect thereto).

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Section 3 CONDITIONS PRECEDENT

  

3.1           Closing Conditions.

  

(a)            The obligation of each Lender to make a Term Loan on the Closing Date hereunder is subject to satisfaction or waiver by the Agent of the following conditions precedent:

  

(i)            the Borrower and each other Person that is to be a party to any Loan Document shall have executed and delivered each such Loan Document, all in form and substance satisfactory to the Agent;

(ii)           the Borrower shall cause to be delivered to the Agent the documents described in Item 7 of the Terms Schedule, each in form and substance satisfactory to the Agent;

(iii)          the Agent shall have received from the Borrower an executed Notice of Borrowing and such other information as the Agent requests in connection with the funding of the Term Loans on the Closing Date;

(iv)          no Default or Event of Default shall exist (whether before or after giving effect to the funding of the Term Loans on the Closing Date);

(v)           all representations and warranties made by any Obligor in any of the Loan Documents, or otherwise in writing to the Agent, shall be true and correct in all material respects (or, if already qualified as to materiality, in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all respects (or in all material respects for such representations and warranties that are not by their terms already qualified as to materiality) as of such earlier date;

  

(vi)           subject to Section 5.14, all actions necessary to establish the Agent will have a valid, second priority Lien (subject only to Permitted Liens subject to the terms of the Closing Date Intercreditor Agreements) in the Collateral as required by law or the Loan Documents shall have been taken;

(vii)         since April 30, 2023, no Material Adverse Effect shall have occurred

  

(viii)        the Agent and the Lenders shall have received all legal and business due diligence materials (including, without limitation, copies of any and all third party due diligence reports), and such materials shall be satisfactory to the Agent or such Lender, as applicable, in their sole discretion, and the Agent and the Lenders shall have completed their respective legal and business due diligence investigations with results satisfactory to the Agent or such Lender, as applicable, in their sole discretion;

  

(ix)           the Borrower shall have satisfied such additional closing conditions as are set forth in Item 8 of the Terms Schedule;

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(x)            the Business Combination shall have been consummated or, substantially concurrently with the Tranche 1 Term Borrowing under this Agreement, shall be consummated;

  

(xi)           the applicable Warrants shall have been issued and delivered pursuant to Section 5.15(a);

  

(xii)          the Agent and Lenders shall receive confirmation that amendments and/or waivers to the loan documentation evidencing the Existing Indebtedness are effective to allow for the execution of this Agreement, the incurrence of the Term Loans under this Agreement and the Liens created under the Security Documents and shall have received executed copies thereof;

(xiii)         The Convertible Notes shall have been satisfied in full upon conversion into common stock of Holdings in connection with the Business Combination;

(xiv)        Provide evidence satisfactory to the Agent and Lenders that Holdings is in compliance with Section 8.15; and

(xv)         the Closing Date Intercreditor Agreements shall be executed and delivered by the Agent and Lenders under this Agreement and the agent and lenders under the Existing Indebtedness.

(b)           The making of any Tranche 2 Term Loan is subject to the following conditions precedent (which the Borrower shall comply with upon receipt of a notice from the Agent in accordance with Section 1.1):

(i)            the applicable Warrants shall have been issued and delivered pursuant to Section 5.15(b);

(ii)           (a) the Borrower shall concurrently repay all outstanding amounts under and in respect of the Silverview Term Loan, (b) all commitments to extend credit under the Silverview Term Loan, if any, to lend or make other extensions of credit thereunder shall have been concurrently terminated and (c) the Agent shall have received customary payoff letters and all documents or instruments necessary to release all Liens and guarantees securing the Silverview Term Loan; and

  

(iii)           an intercreditor agreement (or similar arrangement) shall be executed and delivered by the Agent and Lenders under this Agreement and the agent and lenders under the Granite Creek Capital Lease Facility, which shall be in form and substance satisfactory to the Agent and the Lenders.

(c)           The obligation of each Lender to make any Term Loans (including any Term Loans made on the Closing Date and Tranche 2 Term Loans following the Closing Date) are subject to the following conditions precedent:

(i)            the representations and warranties of the Obligors contained in Section 4 or any other Loan Document shall be true and correct in all material respects (or if already qualified as to materiality, in all respects) on and as of the date of such Term Loan, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all respects (or in all material respects for such representations and warranties that are not by their terms already qualified as to materiality) as of such earlier date;

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(ii)           other than in respect of Tranche 2 Term Loans, no Default or Event of Default shall have occurred and be continuing, or would result from the making of such Term Loan or from the application of the proceeds hereof; and

(iii)           the Agent shall have received from the Borrower an executed Notice of Borrowing in accordance with the requirements hereof.

Each and every request by the Borrower for a Term Loan shall constitute a representation and warranty that the conditions specified in clauses (i) through (iii) of this Section 3.1(c) (as applicable) have been satisfied on and as of the date that each such Term Loan is made.

Section 4 BORROWER’S REPRESENTATIONS AND WARRANTIES

To induce the Lenders to enter into this Agreement and to extend credit, each of the Borrower and Holdings makes the following representations and warranties:

4.1           Existence and Rights; Predecessors. Each Obligor is an entity as described in the Perfection Certificate, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and is duly qualified or licensed to transact business in all places where the failure to be so qualified would reasonably be expected to have a Material Adverse Effect; has the right and power to enter into and discharge all of its obligations under the Loan Documents, each of which constitutes a legal, valid and binding obligation of such Obligor, enforceable against it in accordance with its terms, subject only to bankruptcy and similar laws affecting creditors’ rights generally; and has the power, authority, rights and franchises to own its property and to carry on its business as presently conducted. Except as may be otherwise described in the Perfection Certificate, during the five (5) year period prior to the date of this Agreement, no Obligor has been a party to any merger, consolidation or acquisition of all or substantially all of the assets or equity interests of any other Person and has not changed its legal status or the jurisdiction in which it is organized.

4.2          Authority. The execution, delivery and performance of the Loan Documents by the Borrower and each other Obligor executing any Loan Document have been duly authorized by all necessary actions of such Person, and do not and will not violate any provision of law, or any writ, order or decree of any court or Governmental Authority or agency, or any provision of the Organizational Documents of such Person, and do not and will not result in a breach of, or constitute a default or require any consent under, or result in the creation of any Lien upon any property or assets of such Person pursuant to, any law, regulation, instrument or agreement to which any such Person is a party or by which any such Person or its respective properties may be subject or bound.

4.3          Litigation. Except as disclosed in writing to the Agent prior to the Closing Date, there are no actions or proceedings pending, or to the knowledge of any Obligor, threatened, against any Obligor or their respective Subsidiaries before any court or administrative agency, and no Obligor has any knowledge or belief of any pending, threatened or imminent governmental investigations or claims, complaints, actions or prosecutions involving any Obligor or their respective Subsidiaries, in each case, that would reasonably be expected to have a Material Adverse Effect. No Obligor or their respective Subsidiaries is in default with respect to any order, writ, injunction, decree or demand of any court or any Governmental Authority that would reasonably be expected to have a Material Adverse Effect.

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4.4           Financial Condition; Disclosure.

(a)           All financial statements and information relating to the Borrower and the other Obligors and their respective Subsidiaries which have been delivered to the Agent have been prepared in accordance with GAAP, unless otherwise stated therein, and fairly present the Borrower’s and each other Obligor’s and their respective Subsidiaries financial condition, as applicable. There has been no material adverse change in the financial condition of the Borrower or any other Obligor and their respective Subsidiaries since the date of the most recent of such financial statements submitted to the Agent. No Obligor or their respective Subsidiaries has knowledge of any material liabilities, contingent or otherwise, that are not reflected in such financial statements and information. No Obligor or their respective Subsidiaries has entered into any special commitments or contracts that are not reflected in such financial statements or is aware of any information that that would reasonably be expected to have a Material Adverse Effect. The Borrower and each other Obligor and their respective Subsidiaries is, and after consummating the transactions described in the Loan Documents will be, Solvent.

(b)           No information provided by or on behalf of the Borrower or any other Obligor or their respective Subsidiaries in any Loan Document or in any document, instrument or other writing furnished to the Lenders by or on behalf of any Obligor in connection with the transactions contemplated in any Loan Document, as of the date such information is provided, does or will contain any untrue material statement of fact, when taken as a whole, or will omit to state any such fact (of which any executive officer of any Obligor or their respective Subsidiaries has knowledge) necessary to make the information provided by or on behalf of any Obligor and their respective Subsidiaries not misleading in any material respect. As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all respects.

  

4.5           Taxes. Each Obligor and their respective Subsidiaries has filed all U.S. federal income and all other material tax returns that it is required to file, and has paid all Taxes shown on said returns as well as all other Taxes due and payable to the extent that such Taxes are not being Properly Contested; and no Obligor or any of its Subsidiaries is subject to any Tax Liens and has not received any notice of deficiency or other official notice to pay any Taxes that remain unpaid.

4.6           Material Agreements. No Obligor or any of its Subsidiaries is a party to any agreement or instrument adversely affecting its business, assets, operations or condition, nor is any Obligor or any of its Subsidiaries in default in the performance, observance or fulfillment of any material obligations, covenants or conditions contained in any such agreement or instrument where such default would reasonably be expected to have a Material Adverse Effect.

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4.7           Title to Assets; Intellectual Property. Each Obligor and their respective Subsidiaries has good title to its assets (including those shown or included in its respective financial statements) or leasehold title as to leased assets or rights as to licenses and the same are not subject to any Liens other than Permitted Liens. Each Obligor and their respective Subsidiaries possesses all necessary Intellectual Property rights and licenses to conduct business as now operated, without any known conflict with the rights of others, including items described in the Perfection Certificate.

4.8           Compliance With Laws. Each Obligor, their respective Subsidiaries and their respective properties, business operations and leaseholds are in compliance in all respects with all applicable laws, except such non-compliance which would not (if enforced in accordance with applicable law) reasonably be expected to result in a Material Adverse Effect.

4.9          Business and Collateral Locations. Each Obligor’s chief executive office, principal place of business, office where such Obligor’s business records are located and all other places of business of such Obligor are as described in the Perfection Certificate; and, except as otherwise described in the Perfection Certificate, none of the Collateral is in the possession of any Person other than the applicable Obligor.

4.10        ERISA. Except as disclosed in writing to the Agent prior to the Closing Date, no Obligor has any Plan. No Plan established or maintained by any Obligor had, has, or is expected to have a material accumulated funding deficiency (as such term is defined in Section 302 of ERISA), and no material liability to the Pension Benefit Guaranty Corporation has been, or is expected by any Obligor to be, incurred with respect to any such Plan by such Obligor. No Obligor is required to contribute to or is not contributing to a Multiemployer Plan and has no withdrawal liability to any Plan, nor has any reportable event referred to in Section 4043(b) of ERISA occurred that has resulted or could result in liability of any Obligor; and no Obligor has any reason to believe that any other event has occurred that has resulted or would result in liability of any Obligor as set forth above.

4.11        Labor Relations. Except as disclosed in writing to the Agent prior to the Closing Date, neither any Obligor nor any of their respective Subsidiaries is a party to or bound by any collective bargaining agreement, management agreement or consulting agreement. On the date hereof, there are no material grievances, disputes or controversies with any union or any other organization of any Obligor’s or any of their respective Subsidiaries’ employees, or, to any Obligor’s knowledge, any threats of strikes, work stoppages or any asserted pending demands for collective bargaining by any union or organization.

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4.12            Anti-Terrorism Laws; Sanctions. Neither any Obligor nor any of their respective Affiliates is in violation of any anti-terrorism law, including (but not limited to) the PATRIOT Act, engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any anti-terrorism law, including (but not limited to) the PATRIOT Act; or is any of the following (each a “Blocked Person”): (i) a Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224; (ii) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224; (iii) a Person with which any bank or other financial institution is prohibited from dealing or otherwise engaging in any transaction by any anti-terrorism law; (iv) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224; (v) a Person that is named as a “specially designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list; or (vi) a Person who is affiliated with a Person listed above. Neither any Obligor nor any of their respective Subsidiaries or Affiliates conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person or deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224. Each Obligor and each of its respective Subsidiaries and Affiliates is in compliance with Sanctions and with AML Laws. The Borrower will not use the advances of the Term Loans or the proceeds thereof in violation of any Sanctions, otherwise make such funds available to any Sanctions Target, or use any part of the proceeds of the Term Loans for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977. None of the Obligors, any of their Subsidiaries or any of their respective directors or officers, nor, to their knowledge, any of their respective Affiliates, employees or agents, is a Sanctions Target.

4.13            Capital Structure. As of the date hereof, the Perfection Certificate sets forth the correct name of each Obligor and each Subsidiary of each Obligor, its jurisdiction of organization and the percentage of its Equity Interests owned by such Obligor, the identity of each Person owning any Equity Interests of any Obligor, and the number or percentage of Equity Interests owned by each such Person. Each Obligor has good title to all of the Equity Interests it purports to own in each of its Subsidiaries, free and clear of any Lien other than Permitted Liens.

4.14            Perfection Certificate. All of the representations and warranties in the Perfection Certificate are true and accurate on the date of this Agreement.

4.15            Accounts and Other Payment Rights. Each Account, Instrument, Chattel Paper, Payment Intangible and other writing constituting any portion of the Collateral in an amount exceeding $100,000 (a) is genuine and enforceable in accordance with its terms except for such limits thereon arising from bankruptcy or similar laws relating to creditors’ rights; (b) is not subject to any reduction or discount, defense, setoff, claim or counterclaim of a material nature against any Obligor except as stated on the invoice applicable thereto or as to which such Obligor has notified the Agent in writing; (c) is not subject to any other circumstances that would impair the validity, enforceability or amount of such Collateral except as to which any Obligor has notified the Agent in writing; (d) arises from a bona fide sale of goods or delivery of services in the Ordinary Course of Business and in accordance with the terms and conditions of any applicable contract or agreement; and (e) is free of all Liens other than Permitted Liens.

4.16            Validity, Perfection and Priority of Security Interests. The Liens in favor of the Agent provided pursuant to the Security Documents are valid and perfected first priority security interests in the Collateral (subject only to Permitted Liens), and all filings and other actions required by the Loan Documents to perfect the Liens on such Collateral have been taken on the Closing Date or shall be taken as promptly as practicable following the Closing Date.

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4.17            Permits, Licenses and Other Approvals. Holdings, the Borrower and each of its Subsidiaries have all power and authority, and have all permits, licenses, accreditations, certifications, authorizations, approvals, consents, notifications, certifications, registrations, exemptions, variances, qualifications and other rights, privileges and approvals required under applicable laws, to which any Obligor is subject, of all Governmental Authorities and other Persons necessary or required for it (a) to own the assets that it now owns, (b) to carry on its business as now conducted, and (c) to execute, deliver and perform the Loan Documents to which it is a party, except, in the case of the foregoing clauses (a) and (b), where the failure to obtain such permits, licenses, accreditations, certifications, authorizations, approvals, consents and agreements would not reasonably be expected to have a Material Adverse Effect.

4.18            No Broker Fees. Except as disclosed to the Agent by the Borrower on or prior to the Closing Date, no broker’s or finder’s fee or commission will be payable with respect hereto or any of the transactions contemplated hereby. Each Obligor and each of its Subsidiaries agrees to indemnify the Agent and the Lenders against, and agrees that it will hold the Agent and the Lenders harmless from any claim, demand, or liability for any such broker’s or finder’s fees alleged to have been incurred in connection herewith or therewith and any expenses (including reasonable and documented out of pocket attorneys’ fees) arising in connection with any such claim, demand or liability.

4.19            Food Safety Laws. (a) The operations of each Obligor and each of its Subsidiaries are and have been in compliance in all material respects with all applicable Food Safety Laws, including obtaining, maintaining and complying with all permits, licenses, or other approvals required by any Food Safety Law; (b) in the five years prior to the date of this Agreement and on and after the Closing Date, no written notice, request for information, order, complaint or penalty has been received by an Obligor or any of its Subsidiaries, and there are no judicial, administrative or other actions, suits or proceedings pending or threatened in writing which allege a violation of or liability under any Foods Safety Laws, in each case relating to an Obligor or any of its Subsidiaries which would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; (c) each Obligor’s and each of its Subsidiaries’ recordkeeping practices comply in all material respects with the requirements of the Food Safety Laws, including FDA regulations implementing the Public Health Security and Bioterrorism Preparedness and Response Act of 2002; (d) each Obligor and each of its Subsidiaries have practices in place intended to ensure continuing compliance with the safety and labeling requirements of applicable Food Safety Laws, including, to the extent applicable to such Obligor and its Subsidiaries, requirements related to sanitary transportation, supplier verification, hazard analysis and critical control points, food safety plans, food defense, current good manufacturing practices, sanitation standard operating procedures, temperature control, environmental monitoring, food additives, and menu labeling; (e) to the knowledge of each Obligor and each of its Subsidiaries, all of the food products produced or sold by the Borrower and each of its Subsidiaries (i) have been properly handled and stored and are properly manufactured, packaged and labeled and fit for human consumption or other intended use, (ii) are not and have not been adulterated, misbranded or otherwise violative within the meaning of the United States Federal Food, Drug, and Cosmetic Act as amended, and any regulations promulgated thereunder, or under any other Food Safety Laws, and (iii) bear and have borne all required warning statements and allergen declarations; (f) each Obligor and each of its Subsidiaries have, in a timely manner, filed with the applicable Governmental Authorities all required reports, including reports involving serious injury related by a reasonable probability to the consumption of any product; (g) no Obligor, nor any of its Subsidiaries have received notice from the FDA, TTB or any other Governmental Authority, or has knowledge, that there are any circumstances existing which would be reasonably likely to lead to any enforcement action or loss of, or refusal to renew, any permit, license, or approval related to the making of or sale of any food or alcohol product; and (h) there is not currently, and has not been during the past three (3) years preceding the Closing Date, nor is there under consideration or investigation by any Obligor or any of its Subsidiaries, any seizure, withdrawal, recall, suspension or detention of any product manufactured or sold by any Obligor or any of its Subsidiaries (a “Recall”) nor, to the knowledge of any Obligor or any of its Subsidiaries, is there any investigation or proceeding by the FDA, TTB, USDA, or any other Governmental Authority seeking any such Recall or enforcement action.

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4.20            Environmental Compliance. The operations and properties of each Obligor and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, and no circumstances exist that would be reasonably likely to (A) form the basis of an Environmental Action against any Obligor or any of its Subsidiaries or any of their properties that would have a Material Adverse Effect or (B) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law.

There are no and never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Obligor or any of its Subsidiaries or, to the best of its knowledge, on any property formerly owned or operated by any Obligor or any of its Subsidiaries; there is no asbestos or asbestos-containing material on any property currently owned or operated by any Obligor or any of its Subsidiaries; and Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Obligor or any of its Subsidiaries.

Neither any Obligor nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any governmental or regulatory authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Obligor or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in material liability to any Obligor or any of its Subsidiaries.

4.21            Senior Indebtedness. The Obligations constitute “senior indebtedness” (or a term of similar import) of the Obligors under any Debt permitted hereunder that is subordinated in right of payment or in right of collateral recovery, in each case, to the Obligations.

4.22            Liquor License Subsidiaries. None of the Liquor License Subsidiaries owns any material assets or property other than a liquor license.

4.23            Reserved.

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4.24            Business Combination. The registration statement on Form S-4 filed in connection with the Business Combination does not contain any untrue statement of a material fact, or omit to state a material fact necessary to make the statements contained therein not misleading and the final proxy statement/prospectus filed in connection with the Business Combination does not contain any untrue statement of a material fact, or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.

4.25            Material Non-Public Information. None of the information that has been provided to the Agent, the Lenders or any of their respective officers, directors, employees, attorneys, representatives or agents by or on behalf of any Obligor constitutes material non-public information, except any such information that will be, and is in fact, publicly disclosed by Holdings in a Current Report on Form 8-K not later than four business days following the Closing Date.

Section 5         AFFIRMATIVE COVENANTS

At all times prior to the Termination Date and payment in full of the Obligations, each of Holdings (on and after the consummation of the Business Combination) and the Borrower covenants that it shall, and shall cause each of its Subsidiaries to:

5.1            Notices. Notify the Agent, promptly (and in any event, within three (3) Business Days) after any Obligor’s obtaining knowledge thereof, of (i) any Default or Event of Default; (ii) the commencement of any action, suit or other proceeding against, or any demand for arbitration with respect to, any Obligor (x) in which the amount of damages claimed is $250,000 or more or (y) in which the relief sought is an injunction or other stay of the performance of this Agreement or any other Loan Document; (iii) the occurrence or existence of any default or event of default by an Obligor under the Silverview Term Loan, the Granite Creek Capital Lease Facility or any other agreement relating to Debt for money borrowed exceeding $250,000; (iv) any alleged violation in any material respect of any Food Safety Laws; or (v) any other event or transaction which has or would reasonably be expected to have a Material Adverse Effect. Notice to Agent shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or Holdings or to the website of the Securities and Exchange Commission or any successor thereto and written notice of such posting has been delivered to the Agent.

5.2            Maintenance of Rights and Properties. Maintain and preserve all rights, franchises and other authority adequate, in all material respects, for the conduct of its business; maintain its properties, equipment and facilities in good order and repair; conduct its business in an orderly manner without voluntary interruption; and maintain and preserve its existence.

5.3            Performance and Compliance with Material Contracts. At the expense of such Obligor or such Subsidiary, as applicable, timely and fully perform and comply with all material provisions, covenants and other promises required to be observed by it under all of its Material Contracts, to the extent the failure to perform or comply with such provisions, covenants and promises would be materially adverse to the Agent or the Lenders hereunder.

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5.4            Visits and Inspections. Permit representatives of the Agent, as often as may be reasonably requested (provided, so long as no Default or Event of Default exists, the Borrower shall have no obligation to reimburse the Agent for any costs and expenses for more than one visit per Fiscal Year), but only during normal business hours and (except when a Default or Event of Default exists) upon reasonable prior notice to the Borrower to: visit and inspect properties of the Obligors and each of their respective Subsidiaries; inspect, audit and make extracts from each Obligor’s Books, including all records relating to any Collateral; and discuss with each of its officers, employees and independent accountants Obligors’ and their respective Subsidiaries’ business, financial conditions, business prospects and results of operations.

5.5            Taxes. Pay and discharge all material Taxes prior to the date on which such Taxes become delinquent or any penalties attach thereto, except and to the extent only that such Taxes are being Properly Contested. If requested by the Agent, each Obligor shall provide proof of payment or, in the case of withholding or other employee taxes, deposit funds required by applicable law and shall deliver to the Agent copies of all income tax returns (and amendments thereto) within thirty (30) days following the filing thereof.

5.6            Financial Statements and Other Information. Keep adequate records and books of account with respect to its business activities in which proper entries are made in accordance with GAAP, consistently applied, reflecting all its financial transactions; and cause to be prepared and furnished to the Agent the following:

(i)              as soon as available and in any event within ninety (90) days after the close of each Fiscal Year, audited balance sheets of Holdings and its Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders’ equity and cash flow, on a consolidated basis, certified without any going concern or other material qualification, by a firm of independent certified public accountants of recognized national standing selected by the Borrower but reasonably acceptable to the Agent (it being agreed that Ernst & Young shall be deemed to be acceptable to the Agent) and setting forth in each case in comparative form the corresponding consolidated figures for the preceding Fiscal Year;

(ii)             as soon as available, and in any event within forty-five (45) days after the close of each fiscal quarter of the Borrower, unaudited balance sheets of Holdings and its Subsidiaries as of the end of such fiscal quarter and the related unaudited statements of income and cash flow for such fiscal quarter and for the portion of Holdings’ Fiscal Year then elapsed, on a consolidated basis, and setting forth in each case in comparative form the figures for the previous Fiscal Year and certified by the principal financial officer of the Borrower as prepared in accordance with GAAP and fairly presenting the consolidated financial position and results of operations of Holdings and its Subsidiaries for such quarter subject only to changes from year-end adjustments and except that such statements need not contain notes;

(iii)            upon the occurrence of a Default or Event of Default, as soon as available and in any event within thirty (30) days after the close of each fiscal month, (a) a monthly income statement and a calculation of EBITDA as of the end of such fiscal month, (b) a monthly consolidated cash balance report detailing Holdings’ and its Subsidiaries’ cash balances as of the end of such fiscal month, and (c) a monthly report summarizing key performance indicators and operational performance figures to be reasonably requested by the Agent, in each case on a consolidated basis and setting forth in each case in comparative form the corresponding consolidated figures for the comparable fiscal month in the preceding Fiscal Year;

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(iv)            concurrently with the delivery of the financial statements described in clauses (i) and (iii) of this Section, or more frequently if requested by the Agent during any period that an Event of Default exists, a Compliance Certificate;

(v)            copies of any material regular, periodic and special reports or registration statements or prospectuses which the Obligors file with any Governmental Authority;

(vi)            within ninety (90) days after the end of each Fiscal Year, annual financial projections of Holdings and its Subsidiaries for the following Fiscal Year on a consolidated basis, in form reasonably satisfactory to the Agent, of monthly and quarterly consolidated balance sheets and statements of income or operations and cash flows and detailing assumptions made in the build-up of such budget;

(vii)           all reporting with respect to the Collateral as provided in the Security Agreement and the other Security Documents;

(viii)          promptly following any request therefor, (a) such other information regarding the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Obligors, or compliance with the terms of the Loan Documents, as the Agent or any Lender (through the Agent) may from time to time reasonably request, (b) information reasonably requested by the Agent regarding any planned or potential Restaurants, (c) information and documentation reasonably requested by the Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws or (d) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) or (d) of such certification; and

(ix)            promptly after the sending, filing, receipt or delivery thereof, as applicable, copies of material notices received from, or reports or other information or material notices furnished to the agent or any lender under the Silverview Term Loan or Granite Creek Capital Lease Facility.

Notwithstanding the foregoing, the obligations under clauses (i), (ii) and (iii) of this Section 5.6 with respect to delivery of financial information of Holdings and its Subsidiaries may be satisfied by furnishing Holdings’ Form 10-K or 10-Q (or any comparable or successor form), as applicable, as filed with the SEC.

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Notwithstanding any other requirement of this Agreement or any other Loan Document, upon the written request of any Lender (so long as such written request is in effect, a “Public Lender”), Holdings will not, and will cause each of its subsidiaries and Affiliates and its and each of their respective officers, directors, employees, attorneys, representatives and agents to not, provide such Public Lender with any material nonpublic information regarding Holdings or any of its subsidiaries or Affiliates without the express prior written consent of such Public Lender. Notwithstanding anything to the contrary herein or any other Loan Document, any information provided to any Public Lender or the Agent by Holdings, its subsidiaries, Affiliates, and its and each of their respective officers, directors, employees, attorneys, representatives and agents, to the extent Holdings is a public company, (x) to the extent such information is filed with any securities regulator or stock exchange to the authority of which Holdings may become subject from time to time, shall be deemed to be public information (“Public Information”) and (y) any other information shall be deemed material nonpublic information (“Private Information”). For the avoidance of doubt, the failure of any of the Borrower or any Guarantor to provide any notice or communication otherwise required hereunder or under any other Loan Document to any Public Lender solely as a result of the Borrower’s or such Guarantor’s compliance with this paragraph and because such notice or communication would contain or constitute Private Information shall not constitute or be considered a breach or violation of, or a Default or Event of Default under, this Agreement or any other Loan Document. At any time any Public Lender may deliver written notice to Holdings notifying Holdings that it no longer wishes to be a Public Lender (a “Public Lender Notice”), at which time it will cease to be a Public Lender until such time as it delivers another written request to become a Public Lender. The Public Lender Notice shall not apply retroactively, and the Agent shall have no liability with respect to any material nonpublic information regarding Holdings or any of its subsidiaries or Affiliates shared by the Agent with any Lender prior to the Agent’s receipt of such Public Lender Notice. Notwithstanding anything to the contrary in this paragraph, Agent and Lenders acknowledge and agree that each Board Appointee and Board Observer will receive Private Information; provided, however, that, except with the Agent’s express prior written consent, Holdings will not, and will cause each of its subsidiaries and Affiliates and its and each of their respective officers, directors, employees, attorneys, representatives and agents to not, provide to any Board Observer any Private Information that would cause such Board Observer and/or the Agent or the Agent’s Affiliates to become subject to any special or other blackout periods or other trading restrictions imposed by Holdings or its subsidiaries except for the customary quarterly blackout periods associated with the release of financial information that end not later than the second trading day following the date Holdings’ and its subsidiaries’ financial results are publicly disclosed and any other blackout periods and trading restrictions applicable generally to independent members of the Board.

5.7            Lender Calls. Conduct quarterly conference calls with the management of the Borrower, the Agent and the Lenders to discuss the financial performance and operations of Holdings and its Subsidiaries for the most recently ended fiscal quarter.

5.8            Compliance with Laws. Comply with all applicable laws (including but not limited to the PATRIOT Act and the Food Safety Laws), and all other laws regarding the collection, payment and deposit of Taxes, and shall obtain and keep in full force and effect any and all governmental approvals necessary to the ownership of its properties or the conduct of its business and shall promptly report any non-compliance to the Agent, except, in each case, to the extent such non-compliance would not (if enforced in accordance with applicable law) reasonably be expected to result in a Material Adverse Effect.

5.9            Financial Covenants. Comply with all of the Financial Covenants.

5.10            Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to maintain, insurance (including, without limitation, business interruption insurance) with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which Holdings, the Borrower or such Subsidiary operates.

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5.11            Covenant to Guarantee Obligations and Give Security. In each case subject to the terms of the Closing Date Intercreditor Agreements, upon (x) the request of the Agent following the occurrence and during the continuance of an Event of Default, (y) the formation or acquisition of any new direct or indirect Subsidiaries by any Obligor or (z) the acquisition of any property by any Obligor, and such property, in the judgment of the Agent, shall not already be subject to a perfected security interest in favor of the Agent for the benefit of the Lenders, then in each case at the Obligors’ expense and in each case, to the extent required under the terms of the Security Documents:

(i)              in connection with the formation or acquisition of a Subsidiary, within thirty (30) days (or such later date as the Agent may agree in writing) after such formation or acquisition, cause each such Subsidiary, and cause each direct and indirect parent of such Subsidiary (if it has not already done so), to duly execute and deliver to the Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Agent, guaranteeing the other Obligor’s obligations under the Loan Documents,

(ii)             within thirty (30) days (or such later date as the Agent may agree in writing) after (A) such request, furnish to the Agent a description of the real and personal properties of the Obligors and their respective Subsidiaries in detail reasonably satisfactory to the Agent and (B) such formation or acquisition, furnish to the Agent a description of the real and personal properties of such Subsidiary or the real and personal properties so acquired, in each case in detail reasonably satisfactory to the Agent,

(iii)            within thirty (30) days (or such later date as the Agent may agree in writing) after (A) such request or acquisition of property by any Obligor, duly execute and deliver, and cause each Obligor to duly execute and deliver, to the Agent such additional mortgages, pledges, assignments, security agreement supplements, intellectual property security agreement supplements and other security agreements as specified by, and in form and substance reasonably satisfactory to the Agent, securing payment of all the Obligations of such Obligor under the Loan Documents and constituting Liens on all such properties and (B) such formation or acquisition of any new Subsidiary, duly execute and deliver and cause such Subsidiary and each Obligor acquiring Equity Interests in such Subsidiary to duly execute and deliver to the Agent mortgages, pledges, assignments, security agreement supplements, intellectual property security agreement supplements and other security agreements as specified by, and in form and substance reasonably satisfactory to, the Agent, securing payment of all of the obligations of such Subsidiary or Obligor, respectively, under the Loan Documents,

(iv)            within thirty (30) days (or such later date as the Agent may agree in writing) after such request, formation or acquisition, take, and cause each Obligor and each newly acquired or newly formed Subsidiary to take, whatever action (including, without limitation, the recording of mortgages, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the opinion of the Agent to vest in the Agent (or in any representative of the Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the mortgages, pledges, assignments, security agreement supplements, intellectual property security agreement supplements and security agreements delivered pursuant to this Section 5.11, enforceable against all third parties in accordance with their terms,

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(v)             upon the request of the Agent, within thirty (30) days (or such later date as the Agent may agree in writing) of such acquisition, formation or request, deliver to the Agent a signed copy of a favorable opinion, addressed to the Agent and the other Lenders, of counsel for the Obligors reasonably acceptable to the Agent as to (1) the matters contained in clauses (i), (iii) and (iv) above and (2) such other customary matters as the Agent may reasonably request;

(vi)            as promptly as practicable after such request, formation or acquisition, deliver, upon the request of the Agent in its sole discretion, to the Agent with respect to each parcel of real property owned or held by each Obligor and each newly acquired or newly formed Subsidiary, title reports, surveys and, to the extent available, engineering, soils and other reports, and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Agent, provided, however, that to the extent that any Obligor or any of its Subsidiaries shall have otherwise received any of the foregoing items with respect to such real property, such items shall, promptly after the receipt thereof, be delivered to the Agent, and

(vii)           at any time and from time to time, promptly execute and deliver, and cause each Obligor and each newly acquired or newly formed Subsidiary to execute and deliver, any and all further instruments and documents and take, and cause each Obligor and each newly acquired or newly formed Subsidiary to take, all such other action as the Agent may deem necessary or desirable in obtaining the full benefits of, or in perfecting and preserving the Liens of, such guaranties, mortgages, pledges, assignments, security agreement supplements, intellectual property security agreement supplements and security agreements.

5.12            Further Assurances. Take such further actions as the Agent shall reasonably request from time to time in connection herewith to evidence or give effect to this Agreement and the other Loan Documents and any of the transactions contemplated hereby. Promptly after the Agent’s request therefor, the Obligors shall execute or cause to be executed and delivered to the Agent such instruments, assignments, title certificates or other documents as are necessary under the UCC or other applicable law to perfect (or continue the perfection of) the Agent’s Liens upon the Collateral and shall take such other action as may be reasonably requested by the Agent to give effect to or carry out the intent and purposes of this Agreement.

5.13            Compliance with Environmental Laws. Comply, and cause each of its Subsidiaries and all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew, and cause each of its Subsidiaries to obtain and renew, all Environmental Permits necessary for its operations and properties; and conduct, and cause each of its Subsidiaries to conduct, any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws; provided, however, that neither any Obligor nor any of its Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances.

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5.14            Post-Closing Actions.

(a)            No later than thirty (30) days after the Closing Date (or such later date as the Agent shall agree in its sole discretion), deliver a Control Agreement (or an amendment or amendment and restatement of the Control Agreement to the extent a Control Agreement is already in place) for each Deposit Account (other than any Excluded Account (as such term is defined in the Security Agreement)) maintained by any Obligor as of the Closing Date.

(b)            No later than thirty (30) days after the Closing Date (or such later date as the Agent shall agree in its sole discretion), deliver a Collateral Access Agreement (or an amendment or amendment and restatement of the Collateral Access Agreement to the extent a Collateral Access Agreement is already in place) for each leased property or other location where Collateral is stored or located at any time.

(c)            No later than thirty (30) days after the Closing Date (or such later date as the Agent shall agree its sole discretion), deliver to the Agent insurance certificates and related endorsements for the applicable insurance policies, evidencing (i) the addition of the Agent and its successors and assigns, as additional insured and/or lender loss payee, as applicable, under the applicable insurance policies and (ii) that the Agent and its successors and assigns, will be given notice of any cancellation of each applicable insurance policy, in each case, in form and substance reasonably satisfactory to the Agent.

(d)            No later than ten (10) days after the Closing Date (or such later date as the Agent shall agree in its sole discretion), deliver to Silverview Credit Partners LP, as agent pursuant to the Silverview Term Loan original copies of the stock certificate representing 100% of the issued and outstanding Equity Interests of the Borrower held by Holdings and related stock power (the “Borrower Equity Collateral”), all in form and substance reasonably satisfactory to Silverview Credit Partners LP; provided, however, on and after the funding date of the Tranche 2 Term Loans, no later than ten (10) days after such funding date (or such later date as the Agent shall agree in its sole discretion), deliver the Borrower Equity Collateral to Agent in such form and substance acceptable to Agent.

(e)            No later than one (1) Business Day after the Closing Date (or such later date as the Agent shall agree in its sole discretion), deliver to Agent a certificate of Holdings and the Borrower, executed by its Secretary or Assistant Secretary or other appropriate officer, manager or director, which shall contain appropriate attachments with respect to Holdings and the Borrower effective on and after the consummation of the Business Combination, which shall (A) certify the resolutions of its board of directors, managers, members or other body authorizing the execution, delivery and performance of the Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the officers of such Obligor authorized to sign the Loan Documents to which it is a party, and (C) contain appropriate attachments, including (i) the certificate or articles of incorporation or organization of Holdings and Borrower certified by the relevant authority of the jurisdiction of organization of Holdings and Borrower and a true and correct copy of its by-laws, or other organizational or governing documents, and (ii) a good standing certificate for each of Holdings and Borrower from its jurisdiction of organization or the substantive equivalent available in the jurisdiction of organization for Holdings and Borrower from the appropriate governmental officer in such jurisdiction.

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5.15            Additional Warrants.

(a)            On the Closing Date, Holdings shall grant to Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, a Warrant to Purchase Common Stock, dated as of the funding date of the Tranche 1 Term Loan, executed by the Borrower in favor of Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, for 2,500,000 shares of common stock of Holdings, at an exercise price equal to $0.01 per share, in the form attached as Exhibit D hereto, provided, however, in the event that the volume-weighted average price per share of Holdings’ common stock during the period commencing on the 91^st day after Closing and ending 90 days thereafter is less than $8.00 per share, Holdings shall grant to Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies a Warrant to Purchase Common Stock, dated as of the 181st day after the Closing Date, executed by the Borrower in favor of Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, for 187,500 shares of common stock of Holdings, at an exercise price equal to $0.01 per share, in the form attached as Exhibit D hereto, provided, however, that if the volume-weighted average price per share of Holdings’ common stock during the period commencing on the 91^st day after Closing and ending 90 days thereafter is less than $6.00 per share, Holdings shall instead grant to Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, a Warrant to Purchase Common Stock, dated as of the 181st day after the Closing Date, executed by the Borrower in favor of Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, for 412,500 shares of common stock of Holdings, at an exercise price equal to $0.01 per share, in the form attached as Exhibit D hereto.

(b)            Upon the closing of the Tranche 2 Term Loan, Holdings shall grant to Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, a Warrant to Purchase Common Stock, dated as of the funding date of the Tranche 2 Term Loan, executed by the Borrower in favor of Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, for 1,750,000 shares of common stock of Holdings, at an exercise price equal to $0.01 per share, in the form attached as Exhibit D hereto, provided, however, that if the volume-weighted average price per share of Holdings’ common stock during the period commencing on the 91^st day after Closing and ending 90 days thereafter is less than $6.00 per share, upon the closing of the Tranche 2 Term Loan, Holdings shall instead grant to Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, a Warrant to Purchase Common Stock, dated as of the funding date of the Tranche 2 Term Loan, executed by the Borrower in favor of Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, for 1,900,000 shares of common stock of Holdings, at an exercise price equal to $0.01 per share, in the form attached as Exhibit D hereto.

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5.16            Holdings Public Listing. Holdings shall maintain the public listing of its common stock on NASDAQ or NYSE.

Section 6         NEGATIVE COVENANTS

At all times prior to the Termination Date and payment in full of the Obligations, Holdings shall not (solely with respect to Section 6.16), the Borrower shall not, and shall not permit any of its Subsidiaries to:

6.1            Fundamental Changes. Merge, reorganize, or consolidate with any Person, or liquidate, wind up its affairs or dissolve itself, in each case whether in a single transaction or in a series of related transactions (other than merger or consolidation of any Subsidiary of the Borrower with and into (a) the Borrower or (b) another subsidiary of Borrower that is an Obligor); change its federal employer identification number, organizational identification number or state of organization, its legal name or relocate its chief executive office or principal place of business without in each case having first provided thirty (30) days prior written notice to the Agent; amend, modify or otherwise change any of the terms or provisions in any of its Organizational Documents or the Organizational Documents of any of its Subsidiaries, except for changes that do not affect in any way such Obligor’s authority to enter into and perform the Loan Documents to which it is a party, the perfection of the Agent’s Liens on any of the Collateral, or its authority or obligation to perform and pay the Obligations; or create any Subsidiary other than in accordance with Section 5.11 or acquire all or substantially all of the assets or Equity Interests of another Person, except for Permitted Acquisitions.

6.2            Conduct of Business; Asset Transfers. Sell, lease, transfer or otherwise dispose of any of its assets (including any Collateral) other than a Permitted Asset Disposition; suspend or otherwise discontinue all or any material part of its business operations; or engage in any business other than the business engaged in by it on the Closing Date and any business that is a reasonable extension thereof, including any business that is supplemental, complementary, incidental, ancillary or otherwise related to the business engaged in by it on the Closing Date (collectively, the “Core Business”), without the prior written consent of the Agent.

6.3            Debt; Liens. Create, incur or suffer to exist (i) any Lien on any of its assets other than Permitted Liens, or (ii) any Debt, including any guaranties or other contingent obligations, other than the following:

(a)            the Obligations;

(b)            the Permitted Revolving Debt;

(c)            Debt for accrued payroll and Taxes incurred in the Ordinary Course of Business, in each case so long as payment thereof is not past due and payable unless, in the case of Taxes, such Taxes are being Properly Contested;

(d)            the Permitted Capital Lease Debt;

(e)            Debt under performance, surety, statutory, appeal bonds or other similar bonds in the Ordinary Course of Business;

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(f)            subordinated preferred equity financing, so long as (i) no Default or Event of Default has occurred or would result from the incurrence of such subordinated preferred equity, (ii) such subordinated preferred equity is subordinated to the Obligations, (iii) the documentation governing such subordinated preferred equity does not contain any restrictive covenants on any Obligor or any Subsidiary and is on terms otherwise satisfactory to the Lenders, (iv) such subordinated preferred equity matures no earlier than the ninety-first (91^st) day after the Stated Maturity Date, and (v) such Debt shall not require any payments (other than payment in kind) or be subject to any prepayment, redemption or repurchase (other than customary change of control provisions), and no Obligor or Subsidiary shall make any payments (other than payment in kind) in respect of such subordinated preferred equity, prior to the date that is ninety-one (91) days after the Stated Maturity Date;

(g)            [reserved];

(h)            [reserved];

(i)             Debt in respect of credit cards, credit card processing services, debit cards, store value cards, commercial cards (including purchase cards, procurement cards or p-cards) of the Borrower entered into in the Ordinary Course of Business or in respect of netting services and overdraft protections in connection with deposit and other bank accounts entered into in the Ordinary Course of Business;

(j)             Debt as a result of the existence of any worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance claims, guaranties or similar obligations incurred in the Ordinary Course of Business (in each case other than for or constituting an obligation for money borrowed);

(k)            obligations (including reimbursement obligations in respect of letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion guarantees and similar obligations incurred in the Ordinary Course of Business (in each case other than for or constituting an obligation for money borrowed);

(l)              Debt arising pursuant to appeal bonds or similar instruments required in connection with judgments that do not result in an Event of Default;

(m)            Debt consisting of the financing of insurance premiums incurred in the Ordinary Course of Business;

(n)            Debt and Liens existing on the Closing Date and listed on Schedule 6.3;

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(o)            Debt in respect to the Silverview Term Loan in an aggregate principal amount outstanding at any time not to exceed the amount specified in clauses (a) and (b) of the definition of First Lien Cap Amount as set forth in the Silverview Intercreditor Agreement; provided, however, in the event Lenders elect not to make the Tranche 2 Term Loan to Borrower on or prior to the expiration of the Tranche 2 Term Loan Availability Period, the Borrower shall be permitted, no earlier than 12 months prior to the Stated Maturity Date (as defined in the Silverview Term Loan as in effect on the Closing Date), so long as no Default or Event of Default has occurred and is continuing, to request consent from the Lenders to refinance the Silverview Term Loan with a Conforming Financing, and in connection therewith, the Lenders shall either (i) consent to such Conforming Financing, (ii) agree to provide to the Borrower financing on the same terms and conditions as such Conforming Financing or (iii) not consent to such Conforming Financing , in which case such Conforming Financing shall not be permitted under this Agreement; provided that, in the event the Lenders do not consent to such Conforming Financing (and, for the avoidance of doubt, do not agree to provide financing on the same terms and conditions as such Conforming Financing), the Borrower shall have the right, until the Stated Maturity Date (as defined in the Silverview Term Loan as in effect on the Closing Date), so long as no Default or Event of Default has occurred and is continuing, to repay all of the outstanding Obligations, plus the Modified Make-Whole Amount (provided, however, that the Borrower may not benefit from the Modified Make-Whole Amount in the event that an Insolvency Proceeding (i) is commenced against any Obligor or any of their respective Subsidiaries or (ii) is commenced by any Obligor or any of their respective Subsidiaries); and

(p)            Debt in respect to the Granite Creek Capital Lease Facility in an aggregate principal amount outstanding at any time not to exceed the amount specified in clauses (a) and (b) of the definition of First Lien Cap Amount as set forth in the Granite Creek Intercreditor Agreement.

6.4            Loans; Advances; Investments. Make any loans or advances or other transfers of property to any Person or make any capital contribution or other investment in any Person, except the following:

(a)             reimbursement of expenses to officers or employees in the Ordinary Course of Business;

(b)            transfers by a Subsidiary of the Borrower to the Borrower or to another Subsidiary of the Borrower that is an Obligor; and

(c)            transfers to the Lenders pursuant to the Loan Documents.

6.5            Distributions. Declare or make any Distribution, other than (a) Distributions by any Subsidiary of the Borrower to the Borrower and (b) Distributions by the Borrower to Holdings, the proceeds of which shall be used solely (i) to pay franchise Taxes, other similar Taxes (other than franchise or similar Taxes imposed in lieu of income Taxes) and other fees and expenses required to maintain its corporate existence or the corporate existence of the Borrower and the Subsidiaries of the Borrower and (ii) to pay Holdings’ operating costs and expenses incurred in the Ordinary Course of Business and other corporate overhead costs and expenses (including board member fees and administrative, legal, accounting and similar expenses provided by third parties), incurred in the Ordinary Course of Business and attributable to the ownership or operations of the Borrower and its Subsidiaries; provided that in the event that the proceeds of Distributions made in accordance with this clause (b)(ii) that are not applied by Holdings for the purposes permitted hereunder within 15 Business Days of initial Distribution exceed $500,000 in the aggregate, Holdings shall deposit all proceeds of Distributions under this clause(b)(ii) in a Deposit Account subject to a Control Agreement.

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6.6              ERISA. Withdraw from participation in, permit any full or partial termination of, or permit the occurrence of any other event with respect to any Plan maintained for the benefit of the Obligors’ employees under circumstances that could result in liability to the Pension Benefit Guaranty Corporation, or any of its successors or assigns, or to any entity which provides funds for such Plan; or withdraw from any Multiemployer Plan described in Section 4001(a)(3) of ERISA which covers the Obligors’ employees.

6.7              Tax and Accounting Matters. File or consent to the filing of any consolidated income tax return with any Person other than one of its Subsidiaries; make any significant change in accounting treatment or reporting practices, except as required by GAAP; or establish a fiscal year different than the Fiscal Year.

6.8              Restrictive Agreements. Enter into any agreement containing any provision which would be violated or breached by the performance of the Borrower’s or the other Obligors’ obligations under this Agreement or the other Loan Documents, other than as set forth on Schedule 6.8 hereto.

6.9              Transactions with Affiliates. Enter into, renew, extend or be a party to, or permit any of its Subsidiaries to enter into, renew, extend or be a party to, any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate, except in the Ordinary Course of Business and necessary or desirable for the prudent operation of its business, for fair consideration and on terms no less favorable to it or its Subsidiaries than would be obtainable in a comparable arm’s length transaction with a Person that is not an Affiliate thereof.

6.10            Amendments to Material Contracts. Directly or indirectly, amend, modify, waive, terminate or supplement (or permit the modification, amendment, waiver, termination or supplement of) any Material Contract in any manner materially adverse to such Obligor or such Subsidiary or in any manner materially adverse to the Agent or the Lenders hereunder.

6.11            Prepayment of Debt. At any time, directly or indirectly, voluntarily prepay any Debt (other than (i) the Obligations, (ii) the Silverview Term Loan solely with the proceeds of the Tranche 2 Term Loans, subject to the terms of the Silverview Intercreditor Agreement and (iii) the Granite Creek Capital Lease Facility, subject to the terms of the Granite Creek Intercreditor Agreement), or voluntarily repurchase, redeem, retire or otherwise acquire any Debt of any Obligor or any of its Subsidiaries, except (a) for any Obligor or any of its Subsidiaries may make any such prepayments by converting or exchanging any such Debt to Equity Interests (other than Disqualified Equity Interest) of the Borrower, and (b) to the extent permitted under the applicable intercreditor or subordination arrangement applicable thereto, if any, regularly scheduled principal and interest payments in respect of Debt permitted under Section 6.3.

6.12            Sale-Leasebacks. Directly or indirectly enter into a Sale-Leaseback Transaction.

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6.13            Restrictions on Transfer of Material Intellectual Property. Directly or indirectly convey, sell, lease, assign, dispose of or otherwise transfer (by investment or otherwise) any material Intellectual Property or the Equity Interests of any Subsidiary that owns any material Intellectual Property to any Person that is not an Obligor without the Agent’s prior written consent (it being understood that that any Intellectual Property owned by or used in the operation of the restaurant business of Holdings and its Subsidiaries and any franchisees, including, without limitation, trade secrets, recipes and brand names, shall be considered material Intellectual Property).

6.14            Amendments to Debt Documents. Enter into any amendment, waiver or modification of any of the Permitted Revolving Debt Documents or any documentation evidencing any Debt permitted pursuant to Sections 6.3(o) or 6.3(n) of this Agreement (x) to the extent such amendment, waiver or modification would be prohibited by the terms of the Closing Date Intercreditor Agreements or any other applicable intercreditor or subordination arrangements applicable thereto, (y) to the extent such amendment, waiver or modification would otherwise be materially adverse to the Agent and the Lenders and (z) without delivering a copy of such documentation to the Agent.

6.15            Liquor License Subsidiaries. No Liquor License Subsidiary shall own any material assets or property other than a liquor license.

6.16            Passive Holding Company.

In the case of Holdings, conduct, transact or otherwise engage in any business or operations other than (i) the ownership and/or acquisition of the Equity Interests of the Borrower, (ii) the maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such maintenance, (iii) participating in tax, accounting and other administrative matters as owner of the Equity Interests of the Borrower and reporting related to such matters, (iv) the performance of its obligations under and in connection with the Loan Documents and any documentation governing other Debt expressly permitted by this Agreement (except that Holdings shall not be a primary obligor (as distinguished from a guarantor) of any Debt), (v) any public filing or registration requirements in respect of its common stock, including the ability to incur costs, fees and expenses related thereto, (vi) incurring fees, costs and expenses relating to overhead and general operations including professional fees for legal, tax and accounting matters, (vii) activities incidental to the consummation of the Transactions and (viii) activities incidental to the businesses or activities described in clauses (i) through (vii) of this Section 6.16.

6.17            Cash Holding. Hold any cash or Cash Equivalents other than in Deposit Accounts at financial institutions approved by the Agent and the Lenders; provided that all such Deposit Accounts (other than any Excluded Account (as such term is defined in the Security Agreement)) shall be subject to a Control Agreement.

Section 7         EVENTS OF DEFAULTS; REMEDIES

7.1             Events of Default. The occurrence or existence of any one or more of the following events or conditions shall constitute an Event of Default under this Agreement and the Loan Documents:

(a)            The Borrower or any other Obligor shall fail to pay (i) when and as required to be paid herein, any amount of principal of any Term Loan or (ii) within three (3) Business Days after the same shall become due, interest on any Term Loan, any fee or any other Obligations payable hereunder or pursuant to any other Loan Document;

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(b)            Any Obligor fails or neglects to perform, discharge, keep or observe (i) any covenant contained in Sections 5.1, 5.6, 5.7, 5.9, 5.11, 5.12, 5.14, 5.16, 6, or Item 9 on the date that the Obligors are required to perform, keep or observe such covenant (subject to any applicable time period set forth in such Sections); or (ii) any other covenant contained in this Agreement or any covenant or undertaking by it in any other Loan Document if the breach of such other covenant is not cured to the Agent’s satisfaction within thirty (30) days after the sooner to occur of any Senior Officer’s receipt of notice of such breach from the Agent or the date on which such failure or neglect first becomes known to any Senior Officer, provided that such notice and opportunity to cure shall not apply in the case of any failure to perform, keep or observe any covenant that is not capable of being cured at all or within such thirty (30) day period or that is a willful and knowing breach by the Borrower or any other Obligor;

(c)            Any representation or warranty made by the Borrower or any other Obligor herein or in any other Loan Document, or which is contained in the any certificate, document or financial or other statement by the Borrower or any other Obligor, furnished at any time under this Agreement, or in or under any other Loan Document, shall prove to have been untrue in any material respect when made or deemed made;

(d)            An Insolvency Proceeding (i) is commenced against any Obligor or any of their respective Subsidiaries and is not dismissed within forty-five (45) days thereafter, or (ii) is commenced by any Obligor or any of their respective Subsidiaries;

(e)            There is entered against any Obligor or any of their respective Subsidiaries (i) one or more judgments or orders for the payment of money in an aggregate amount exceeding $500,000 (as such amount is reduced to the extent covered by insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary judgments that have, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, such judgments or orders remain unvacated and unpaid until either (A) enforcement proceedings are commenced by any creditor upon any such judgment or order or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of any such judgment or order, by reason of a pending appeal or otherwise, is not in effect;

(f)            Any Obligor or any of their respective Subsidiaries (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise, and after passage of any grace period) in respect of any Debt (other than the Obligations) having an aggregate principal amount of more than $500,000, or (B) fails to observe or perform any other agreement or condition relating to any such Debt or any other event occurs, and such event continues for more than the grace period, if any, therein specified, the effect of which is to cause, or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, such Debt to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), prior to its stated maturity (other than in respect of any such secured Debt that becomes due solely as a result of the sale, transfer or other disposition of the property or assets securing such Debt);

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(g)            Any Obligor or any of their respective Subsidiaries revokes or attempts to revoke the guaranty signed by any Guarantor; repudiates or disputes any Guarantor’s liability thereunder; is in default under the terms thereof; or fails to confirm in writing, promptly after receipt of the Agent’s written request therefor, any Guarantor’s ongoing liability under the guaranty in accordance with the terms thereof;

(h)            A Reportable Event (consisting of any of the events set forth in Section 4043(b) of ERISA) shall occur which the Agent, in its reasonable discretion, shall determine constitutes grounds for the termination by the Pension Benefit Guaranty Corporation of any Plan or the appointment by the appropriate United States district court of a trustee for any Plan, or if any Plan shall be terminated or any such trustee shall be requested or appointed, or if the Borrower or any other Obligor is in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan resulting from the Borrower’s, or such other Obligor’s complete or partial withdrawal from such Multiemployer Plan;

(i)             Any Obligor or any of their respective Subsidiaries shall challenge in any action, suit or other proceeding the validity or enforceability of any of the Loan Documents, the legality or enforceability of any of the Obligations or the perfection or priority of any Lien granted to the Agent, or any of the Loan Documents, or any Lien granted thereunder, ceases to be in full force or effect for any reason other than a full or partial waiver or release by the Agent in accordance with the terms thereof;

(j)             Any Obligor shall be required to register as an “investment company” under the Investment Company Act of 1940, as amended;

(k)            The Obligors, taken as a whole, shall cease to operate their business in the same manner as such Obligors’ business is conducted as of the Closing Date, except to the extent permitted by Section 6.1;

(l)            There occurs any uninsured loss to any material portion of the Collateral;

(m)            A Change of Control shall occur, or any other event or condition exists that has a Material Adverse Effect;

(n)            Any Obligor assigns, or purports to assign, all, or any portion, of its rights or obligations under any Loan Document, except to the extent such assignment shall be permitted by Section 6.1; or

(o)            The occurrence of any “Event of Default” under the Silverview Term Loan, any other “Loan Agreement” as defined in the Silverview Term Loan or any Replacement Senior Loan Documents.

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7.2            Remedies. Upon or after the occurrence of an Event of Default, the Agent may, in its discretion, without notice to or demand upon any Obligor, do any one or more of the following:

(a)            Declare all Obligations, whether arising pursuant to this Agreement or otherwise, due, whereupon the same shall become without further notice or demand (all of which notice and demand each Obligor expressly waives) immediately due and payable (other than with respect to Events of Default occurring under Section 7.1(d), in which case, for the avoidance of doubt, no notice or demand shall be required and all Obligations shall be automatically and immediately due and payable), and the Borrower shall pay to the Agent for the account of the Lenders the entire aggregate outstanding principal amount of and accrued and unpaid interest on the Term Loans and other Obligations, plus the Make-Whole Amount, plus attorneys’ fees and its court costs if such principal, interest and fees are collected by or through an attorney-at-law;

(b)            Cease advancing money or extending credit to or for the benefit of the Borrower under this Agreement or under any other agreement between the Borrower and the Lenders or terminate any Commitments of the Lenders hereunder;

(c)            Notify Account Debtors or lessees of the Obligors that the Accounts have been assigned to the Agent and that the Agent has a security interest therein, collect them directly, and charge the collection costs and expenses to the Loan Account;

(d)            Subject to the terms of the Closing Date Intercreditor Agreements, take immediate possession of any Collateral, wherever located; subject to the terms of the Closing Date Intercreditor Agreement, require the Obligors to assemble the Collateral, at the Obligors’ expense, and make it available to the Agent at a place designated by the Agent which is reasonably convenient to both parties; and enter any premises where any of the Collateral may be located and keep and store the Collateral on said premises until sold (and if said premises are the property of an Obligor, then such Obligor agrees not to charge the Agent for storage thereof);

(e)            Subject to the terms of the Closing Date Intercreditor Agreements, sell or otherwise dispose of all or any part of the Collateral in its then condition, or after any further manufacturing or processing thereof, at public or private sales, with such notice as may be required by applicable law, in lots or in bulk, for cash or on credit, all as the Agent in its discretion may deem advisable; and each Obligor agrees that any requirement of reasonable notice to such Obligor or any other Obligor of any proposed public or private sale or other disposition of Collateral by the Agent shall be deemed satisfied if such notice is given at least ten (10) days prior thereto, and such sale may be at such locations as the Agent may designate in said notice; and

(f)            Subject to the terms of the Closing Date Intercreditor Agreements, petition for and obtain the appointment of a receiver, without notice of any kind whatsoever, to take possession of any or all of the Collateral and business of the Borrower and to exercise such rights and powers as the court appointing such receiver shall confer upon such receiver.

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Subject to the terms of the Closing Date Intercreditor Agreements, solely in connection with the exercise of the such remedies, the Agent is hereby granted an irrevocable, non-exclusive license or other right to use, license or sub-license (exercisable without payment of compensation to any Obligor or any other Person) any or all of the Obligors’ patents, trademarks, trade names and copyrights and all of the Obligors’ computer hardware and software, trade secrets, brochures, customer lists, promotional and advertising materials, labels, and packaging materials, and any property of a similar nature, in advertising for sale, marketing, selling and collecting and in completing the manufacturing of any Collateral, and the Obligors’ rights under all licenses and franchise agreements shall inure to the Agent’s benefit. The proceeds realized from any sale or other disposition of any Collateral may be applied first to any expenses incurred by the Agent and the Lenders and then to the remainder of the Obligations, in such order of application as the Agent may elect in its discretion, with the Borrower and all other Obligors remaining liable for any deficiency. Interest shall continue to accrue for a period of two (2) Business Days after receipt of any proceeds of Collateral to allow for collection.

7.3            Cumulative Rights; No Waiver. All covenants, conditions, warranties, guaranties, indemnities and other undertakings of any Obligor in any of the Loan Documents shall be deemed cumulative, and the Agent and the Lenders shall have all other rights and remedies not inconsistent herewith as provided under the UCC, or other applicable law. No exercise by the Agent or the Lenders of one right or remedy shall be deemed an election, and no waiver by the Agent or the Lenders of any Default or Event of Default on one occasion shall be deemed to be a continuing waiver or applicable to any other occasion. No delay by the Agent or the Lenders shall constitute a waiver, election or acquiescence by the Agent or the Lenders in any failure by the Borrower to strictly to comply with its obligations under the Loan Documents.

7.4            Application of Payments. Except to the extent provided for in Sections 1.7 and 7.2 hereof, subject to the terms of the Closing Date Intercreditor Agreements, any amounts received by the Agent and the Lenders shall be applied by the Agent (and each Obligor hereby affirmatively consents to any such application) in connection with any enforcement action as follows:

(i)             first, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts then due and payable to the Agent;

(ii)            second, to payment of that portion of the Obligations constituting fees, expenses, indemnities and other amounts then due and payable to the Lenders arising under the Loan Documents, ratably among them in proportion to the respective amounts described in this clause (ii) payable to them;

(iii)            third, to payment of that portion of the Obligations constituting unpaid principal of the Term Loans then due and payable, ratably among the Lenders in proportion to the respective amounts described in this clause (iii) payable to them;

(iv)            fourth, to the payment in full of all other Obligations then due and payable, in each case ratably among the Agent and the Lenders based upon the respective aggregate amounts of all such Obligations then due and payable owing to them in accordance with the respective amounts thereof then due and payable; and

(v)            Lastly, to the Obligors or who may otherwise be legally entitled to same.

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Section 8     GENERAL PROVISIONS

8.1            Accounting Terms. Unless otherwise specified herein, all terms of an accounting character used in this Agreement shall be interpreted, all accounting determinations under this Agreement shall be made, and all financial statements required to be delivered under this Agreement shall be prepared in accordance with GAAP, applied on a basis consistent with the most recent audited financial statements of Holdings and its Subsidiaries delivered to the Agent prior to the Closing Date and using the same method for inventory valuation as used in such audited financial statements, except for any changes required by GAAP.

8.2            Certain Matters of Construction. The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. The section titles, table of contents and list of exhibits appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All references in this Agreement to statutes shall include all amendments of same and implementing regulations and any successor statutes and regulations; to any instrument or agreement (including any of the Loan Documents) shall include any and all modifications and supplements thereto and any and all restatements, extensions or renewals thereof to the extent such modifications, supplements, restatements, extensions or renewals of any such documents are permitted by the terms thereof; to any Person shall mean and include the successors and permitted assigns of such Person; to “including” shall be understood to mean “including, without limitation”; or to the time of day shall mean the time of day on the day in question in New York, New York, unless otherwise expressly provided in this Agreement. A Default or an Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided in this Agreement. Whenever the phrase “to the best of the Borrower’s knowledge” or words of similar import relating to the knowledge or the awareness of the Borrower are used in this Agreement or other Loan Documents, such phrase shall mean and refer to the actual knowledge of any Senior Officer of the Borrower.

8.3            Power of Attorney. Effective only during the continuance of any Event of Default, each Obligor hereby irrevocably makes, constitutes and appoints the Agent (and any of the Agent’s officers, employees or agents designated by the Agent), with full power of substitution, as such Obligor’s true and lawful attorney, in such Obligor’s or the Agent’s name: (a) to endorse such Obligor’s name on any checks, notes, acceptances, money orders, drafts or other forms of payment or security that may come into the Agent’s possession; (b) to sign such Obligor’s name on drafts against Account Debtors, on schedules and assignments of Accounts, on notices to Account Debtors and on any Account invoice or bill of lading; (c) to send requests for verification of Accounts, and to contact Account Debtors in any other manner to verify the Accounts; (d) to notify the post office authorities to change the address for delivery of such Obligor’s mail to any address designated by the Agent, to receive and open all mail addressed to such Obligor, and to retain all mail relating to the Collateral and forward, within two (2) Business Days of the Agent’s receipt thereof, all other mail to such Obligor; and (e) to do all other things necessary to carry out this Agreement. The foregoing power of attorney, being coupled with an interest, is irrevocable so long as any Obligations are outstanding. Each Obligor ratifies and approves all acts of the attorney. Neither the Agent nor its employees, officers, or agents shall be liable for any acts or omissions or for any error in judgment or mistake of fact or law except for gross negligence or willful misconduct.

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8.4            Notices and Communications. All notices, requests and other communications to or upon a party hereto shall be in writing (including facsimile transmission or similar writing) and shall be given to such party at the address, facsimile number or email address for such party in Item 10 of the Terms Schedule or at such other address or facsimile number as such party may hereafter specify for the purpose of notice to the Agent and the Obligors in accordance with the provisions of this Section. Each such notice, request or other communication shall be effective (i) if given by facsimile transmission, when transmitted to the facsimile number specified herein for the noticed party and confirmation of receipt is received, (ii) if given by mail, three (3) Business Days after such communication is deposited in the U.S. Mail, with first class postage pre-paid, addressed to the noticed party at the address specified herein, (iii) if sent by electronic mail, when sent to the address listed in Item 10 of the Terms Schedule, or (iv) if given by personal delivery, when duly delivered with receipt acknowledged in writing by the noticed party. Notwithstanding the foregoing, no notice to or upon the Agent pursuant to Section 5.1 shall be effective until actually received by the individual to whose attention at the Agent such notice is required to be sent. Any written notice, request or demand that is not sent in conformity with the provisions hereof shall nevertheless be effective on the date that such notice, request or demand is actually received by the individual to whose attention at the noticed party such notice, request or demand is required to be sent.

8.5            Performance of Obligors’ Obligations. If any Obligor shall fail to discharge any covenant, duty or obligation hereunder or under any of the other Loan Documents, the Agent may, in its discretion at any time concurrently with notice to such Obligor, for such Obligor’s account and at such Obligor’s expense, pay any amount or do any act required of such Obligor hereunder or under any of the other Loan Documents or otherwise lawfully requested by the Agent. All costs and expenses incurred by the Agent in connection with the taking of any such action shall be reimbursed to the Agent by such Obligor on demand with interest at the applicable interest rate from the date such payment is made or such costs or expenses are incurred to the date of payment thereof; provided that, to the extent such Obligor has not reimbursed the Agent within five (5) Business Days following such demand, interest shall accrue at the Default Rate until the date of payment thereof. Any payment made or other action taken by the Agent under this Section shall be without prejudice to any right to assert, and without waiver of, an Event of Default hereunder and without prejudice to the Agent’s right to proceed thereafter as provided herein or in any of the other Loan Documents.

8.6            Agent.

(a)            Authorization and Action. Each Lender (in its capacity as a Lender) hereby appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement or collection of the Obligations of the Obligors), the Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of all Lenders, and such instructions shall be binding upon all Lenders; provided, however, that the Agent shall not be required to take any action that exposes it to personal liability or that is contrary to this Agreement or applicable law.

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(b)            In furtherance of the foregoing, each Lender (in its capacities as a Lender) hereby appoints and authorizes the Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Obligors to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Agent (and any Supplemental Collateral Agents appointed by the Agent pursuant to Section 8.6(c) for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights or remedies thereunder at the direction of the Agent) shall be entitled to the benefits of this Section 8.6 (including, without limitation, Section 8.6(g)) as though the Agent (and any such Supplemental Collateral Agents) were an “Agent” under the Loan Documents, as if set forth in full herein with respect thereto.

(c)            The Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents or of exercising any rights and remedies thereunder at the direction of the Agent) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Agent may also from time to time, when the Agent deems it to be necessary or desirable, appoint one or more trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact (each, a “Supplemental Collateral Agent”) with respect to all or any part of the Collateral; provided, however, that no such Supplemental Collateral Agent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Agent. Should any instrument in writing from the Borrower or any other Obligor be required by any Supplemental Collateral Agent so appointed by the Agent to more fully or certainly vest in and confirm to such Supplemental Collateral Agent such rights, powers, privileges and duties, the Borrower shall, or shall cause such Obligor to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Agent. If any Supplemental Collateral Agent, or successor thereto, shall die, become incapable of acting, resign or be removed, all rights, powers, privileges and duties of such Supplemental Collateral Agent, to the extent permitted by law, shall automatically vest in and be exercised by the Agent until the appointment of a new Supplemental Collateral Agent. The Agent shall be not responsible for the negligence or misconduct of any agent, attorney-in-fact or Supplemental Collateral Agent that it selects in accordance with the foregoing provisions of this Section 8.6(c) in the absence of the Agent’s gross negligence or willful misconduct.

(d)            Agent’s Reliance, Etc. Neither the Agent nor any of its respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with the Loan Documents, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Agent: (a) may consult with legal counsel (including counsel for any Obligor), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (b) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with the Loan Documents; (c) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of any Loan Document on the part of any Obligor or the existence at any time of any Default under the Loan Documents or to inspect the property (including the books and records) of any Obligor; (d) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; and (e) shall incur no liability under or in respect of any Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telegram, telecopy or electronic communication) believed by it to be genuine and signed or sent by the proper party or parties.

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(e)            Oaktree Fund Administration, LLC and Affiliates. With respect to its Commitments, the Terms Loans made by it and any Notes issued to it, Oaktree Fund Administration, LLC shall have the same rights and powers under the Loan Documents as any other Lender and may exercise the same as though it were not the Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Oaktree Fund Administration, LLC in its individual capacity. Oaktree Fund Administration, LLC and its affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, any Obligor, any of its Subsidiaries and any Person that may do business with or own securities of any Obligor or any such Subsidiary, all as if Oaktree Fund Administration, LLC were not the Agent and without any duty to account therefor to the Lenders. The Agent shall not have any duty to disclose any information obtained or received by it or any of its Affiliates relating to any Obligor or any of its Subsidiaries to the extent such information was obtained or received in any capacity other than as the Agent.

(f)            Lender Party Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on the financial statements referred to in Section 3 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement

(g)            Indemnification. Each Lender severally agrees to indemnify the Agent (to the extent not promptly reimbursed by the Obligors) from and against such Lender’s ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out of the Loan Documents or any action taken or omitted by the Agent under the Loan Documents (collectively, the “Indemnified Costs”); provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent’s gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Obligors under Section 8.8, to the extent that the Agent is not promptly reimbursed for such costs and expenses by the Obligors. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 8.6(g) applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. For purposes of this Section 8.6(g), each Lender’s ratable share of any amount shall be determined, at any time, according to the sum of (i) the aggregate principal amount of the Term Loans outstanding at such time and owing to such Lender, and (ii) the aggregate unused portions of such Lender’s Commitments at such time. The failure of any Lender to reimburse the Agent promptly upon demand for its ratable share of any amount required to be paid by the Lenders to the Agent, as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse the Agent, for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse the Agent, for such other Lender’s ratable share of such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this Section 8.6 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the other Loan Documents.

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(h)            Erroneous Payments.

(i)            Each Lender hereby agrees that (i) if the Agent notifies such Lender that the Agent has determined that any funds received by such Lender from the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), and if such Lender fails to return the amount of any such Erroneous Payment (or portion thereof) to the Agent by such Business Day, such Lender shall also pay the Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to the Agent in same day funds at a rate determined by the Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of the Agent to any Lender under this clause (i) shall be conclusive, absent manifest error.

(j)            Without limiting immediately preceding clause (i), each Lender hereby further agrees that if it receives an Erroneous Payment from the Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one (1) Business Day of its actual knowledge of such error) notify the Agent of such occurrence (provided, that a failure by any Lender to notify the Agent of such occurrence shall neither constitute nor be deemed to constitute a breach by such Lender of any of its obligations under this Agreement unless and to the extent such failure resulted from such Lender’s gross negligence or willful misconduct) and, upon demand from the Agent, it shall promptly, but in all events no later than one (1) Business Day thereafter, return to the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), and if such Lender fails to return the amount of any such Erroneous Payment (or portion thereof) to the Agent by such Business Day, such Lender shall also pay the Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to the Agent in same day funds at a rate determined by the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.

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(k)            Each Obligor hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment that does not consist of the Borrower’s funds, or to the extent an Erroneous Payment consists of the Borrower’s funds and such Erroneous Payment has been returned to the Borrower, such Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by any Obligor.

(l)            Each party’s obligations under this Section 8.6 shall survive the resignation or replacement of the Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.

8.7            Successors and Assigns.

(a)            This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the parties, provided, that the Borrower may not assign this Agreement or any rights or obligations hereunder without the Agent’s prior written consent and any prohibited assignment shall be null and void ab initio. The Lenders may sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, or any right or remedy under, the Obligations and the Loan Documents. The parties to each assignment shall deliver to the Agent a document evidencing such assignment that includes the names and addresses of such parties and the amount of commitment or Loans being assigned pursuant to such document (“Assignment and Assumption”).

(b)            The Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

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(c)            The Borrower agrees that each Person to which any Lender sells participations (each such Person, a “Participant”) shall be entitled to the benefits of Section 1.9 (subject to the requirements and limitations therein, including the requirements under Section 1.9(g) (it being understood that the documentation required under Section 1.9(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 8.7(a). Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury regulations or Section 1.163-5(b) of the United States Proposed Treasury regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.

8.8            General Indemnity. Each Obligor shall jointly and severally indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all actual losses, claims, damages, liabilities and documented expenses, including the fees, charges and disbursements of any counsel for any Indemnitee (but limited, in the case of legal fees and expenses, to the reasonable fees, disbursements and other charges of counsel to the Indemnitees, and if necessary, local counsel in any relevant jurisdiction to all affected Indemnitees taken as a whole, and solely, in the event of a conflict of interest, additional counsel (and, if necessary, local counsel in each relevant jurisdiction) to each group of similarly situated affected Indemnitees, taken as a whole), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document, or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) the Term Loans or the use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by Holdings, the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to Holdings, the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation, arbitration or proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation, arbitration or proceeding is brought by the Borrower or any other Obligor or their respective equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee. Notwithstanding anything to the contrary in any of the Loan Documents, the obligations of the Borrower and each other Obligor with respect to each indemnity given by it in this Agreement or any of the other Loan Documents shall survive the termination of this Agreement and payment in full of the Obligations.

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8.9            Interpretation; Severability. Section headings and section numbers have been set forth herein for convenience only. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against the Agent, the Lenders or any Obligor, whether under any rule of construction or otherwise, as this Agreement has been reviewed and prepared by all parties hereto. Each provision of this Agreement shall be severable from every other provision of this Agreement for purposes of determining the legal enforceability of any specific provision.

8.10          Indulgences Not Waivers. The Agent’s or any Lender’s failure at any time or times to require strict performance by any Obligor of any provision of this Agreement or any of the other Loan Documents shall not waive, affect or otherwise diminish any right of the Agent or the Lenders thereafter to demand strict compliance and performance with such provision.

8.11          Modification; Counterparts; Electronic Signatures. This Agreement cannot be changed or terminated orally and any change or termination shall require the prior written consent of the Agent and the Required Lenders; provided that (x) the following changes shall require the consent of each Lender directly and adversely affected by such change, (i) extensions of the scheduled maturity of any Term Loan or Commitment, (ii) reductions of the principal amount of any Term Loan, (iii) increasing the Commitment of any Lender, (iv) waivers, reductions or postponement of any scheduled repayment (but not mandatory or voluntary prepayment) of the principal amount of the Term Loans, (v) reductions of the rate of interest, any fee or premium payable under any Loan Document and (vi) extensions of time for payment of any interest, fee or premium payable under any Loan Document and (y) the release of all or substantially all of the value of the Guaranty and/or the Collateral shall require the consent of each Lender; supersedes all prior agreements, understandings, negotiations and inducements regarding the same subject matter, and, together with the other Loan Documents, represents the entire understanding of the parties with respect to the subject matter hereof and thereof. This Agreement and any amendments hereto may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. Counterparts of each of the Loan Documents may be delivered by facsimile or electronic mail and the effectiveness of each such Loan Document and signatures thereon shall have the same force and effect as manually signed originals.

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8.12          Governing Law; Consent to Forum. This Agreement shall be deemed to have been made in New York, New York, and shall be governed by and construed in accordance with the internal laws of the State of New York. Each Obligor hereby consents to the non-exclusive jurisdiction of any United States federal court sitting in or with direct or indirect jurisdiction over the Southern District of New York or any state or superior court sitting in New York County, New York, in any action, suit or other proceeding arising out of or relating to this Agreement or any of the other Loan Documents; and each Obligor irrevocably agrees that all claims and demands in respect of any such action, suit or proceeding may be heard and determined in any such court and irrevocably waives any objection it may now or hereafter have as to the venue of any such action, suit or proceeding brought in any such court or that such court is an inconvenient forum. The Agent and each Lender reserves the right to bring proceedings against any Obligor in the courts of any other jurisdiction. Nothing in this Agreement shall be deemed or operate to affect the right of the Agent or any Lender to serve legal process in any other manner permitted by law or to preclude the enforcement by the Agent or such Lender of any judgment or order obtained in such forum or the taking of any action under this Agreement to enforce same in any other appropriate forum or jurisdiction.

8.13           Waiver of Certain Rights. To the fullest extent permitted by applicable law, each Obligor hereby knowingly, intentionally and intelligently waives (with the benefit of advice of legal counsel of its own choosing): (i) the right to trial by jury (which the Agent and each Lender hereby also waives) in any action, suit, proceeding or counterclaim of any kind arising out of, related to or based in any way upon any of the Loan Documents, the Obligations or the Collateral; (ii) notice prior to taking possession or control of any of the Collateral and the requirement to deposit or post any bond or other security which might otherwise be required by any court or applicable law prior to allowing the Agent or any Lender to exercise any of the Agent’s or any Lender’s self-help or judicial remedies to obtain possession of any of the Collateral; (iii) any claim against the Agent or any Lender on any theory of liability, for special, indirect, consequential, exemplary or punitive damages arising out of, in connection with, or as a result of any of the Loan Documents, any transaction thereunder, the enforcement of any remedies by the Agent or any Lender or the use of any proceeds of any Term Loans; and (iv) notice of acceptance of this Agreement by the Agent and the Lenders.

8.14          Confidentiality. Each of Agent and each Lender agrees to maintain (in a manner consistent with such Persons’ customary procedures for handling confidential information of such nature) to maintain as confidential, any information provided to it by any Obligor, except that Agent, and each Lender may disclose such information (a) to Affiliates of Agent or such Lender, (b) to Persons employed or engaged by Agent or any Lender for purposes of evaluating, approving, structuring or administering the other Obligations, (c) to any assignee or participant or investor or potential assignee or participant or investor that has agreed to keep such information confidential in accordance with this Section 8.14, (d) as required or requested by any federal or state regulatory authority or examiner, or any insurance industry association, or as reasonably believed by such Person to be compelled by any court decree, subpoena or legal or administrative order or process; provided, that Agent or such Lender, as applicable disclosing such information shall (to the extent legally permitted and reasonably practicable) use reasonable efforts to provide prompt prior written notice to the Borrower of such disclosure, (e) as, on the advice of such Person’s legal counsel, is required by law; provided, that Agent and such Lender, as applicable disclosing such information shall (to the extent legally permitted and reasonably practicable) use reasonable efforts to provide prompt prior written notice of such disclosure to the Borrower, (f) in connection with the exercise of any right or remedy under any Loan Document or in connection with any litigation or other proceeding to which such Person is a party, (g) to any nationally recognized rating agency or investor of such Person that requires access to information such Person’s investment portfolio in connection with ratings issued or investment decisions with respect to such Person, (h) with the Borrower’s consent or (i) to the extent such information presently is or hereafter becomes (x) publicly available other than as a result of a breach of this Section 8.14 or (y) available on a non-confidential basis to such Lender, or the Agent, as the case may be, from a source (other than any Obligor) not known by them to be subject to disclosure restrictions.

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8.15          Board Appointment and Observers. Each Obligor agrees that, until payment in full of all Obligations:

(a)            Holdings shall allow the Agent to appoint one director (whom the Board shall nominate for election at each annual meeting of stockholders of Holdings while the Term Loans remain outstanding) on the board of directors (the “Board”) of Holdings (“Board Appointee”), who shall (i) have the ability to serve on all committees of the Board and (ii) have no less favorable treatment than any other board member with respect to all matters, including, without limitation, indemnification, compensation, expense reimbursement, stock options or grants, benefits, and access to information and management and shall be subject to the same policies, codes and guidelines of Holdings as are generally appliable to independent members of the Board; provided that the director must qualify as an independent director under applicable stock exchange requirements (including, as applicable, for service on each of the committees of the Board) and the Board may determine not to allow the appointment of, or to nominate, any particular individual if the Board determines that the nomination, appointment or election of such individual would constitute a material breach of their fiduciary duties to stockholders; provided further that the Agent shall have replacement rights for the Board Appointee; and provided further that the Board Appointee shall agree to resign or be subject to removal if the Term Loans no longer remain outstanding.

(b)            If the Agent does not elect to have a Board Appointee, it shall have the right to designate one representative (each a “Board Observer”) to attend and observe in meetings, whether telephonic or in-person, of the Board, or any audit or compensation committees thereof, in each case with speaking rights, but in no event shall the Board Observer (i) be deemed to be a member of the Board or any committee thereof, (ii) except for the confidentiality obligations expressly set forth in this Section 8.15(b), have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to Holdings or its stockholders or subsidiaries, or (iii) have the right to propose, offer or vote on any motions or resolutions to the Board or any committee thereof or otherwise have power to cause Holdings to take, or not to take, any action. The Board (or officer of Holdings acting on its behalf) shall (i) give the Agent and each of the Lenders notice of all such meetings, at the same time as furnished to the attendees, directors, managers, officers, stockholders or members, as applicable, of the Board, (ii) provide to each Board Observer all notices, documents and information furnished to the members of the Board, whether at or in anticipation of a meeting, at the same time furnished to such directors, (iii) provide each Board Observer copies of the minutes of all such meetings at the time such minutes are furnished to the attendees of such meeting (if any), (iv) provide each Board Observer notice of the adoption of any material resolutions and other material actions taken by the Board, or any audit or compensation committees thereof, and (v) reimburse the Agent and each of the Lenders for all reasonable out of pocket expenses related to the foregoing for their respective Board Observer (including, without limitation, expenses relating to attending board meetings or other events pertaining to the Borrower that such Board Observer attends); provided, that the Borrower reserves the right to withhold information and to exclude the Board Observer from any meeting or portion thereof if the Board determines in good faith (and, with respect to attorney-client privilege and conflicts of interest, advice of counsel) that such exclusion is reasonably necessary (i) to preserve the attorney-client privilege, (ii) to avoid a potential conflict of interest (which, without limitation shall include discussions regarding this Agreement and the other Loan Documents) or (iii) that such information is highly confidential or represents a trade secret. The Board Observer shall keep and maintain all information, notices, minutes, consents and other materials obtained pursuant to this Section 8.15 confidential in accordance with Section 8.14. The Obligors agree that none of the Obligors, their Affiliates or any member of the Board or any committee thereof shall be entitled to rely on any statements or views expressed by the Board Observer in any Board or committee meeting. The Board Observer shall be entitled to indemnification and advancement of expenses from Holdings to the same extent provided by Holdings to its directors under its Organizational Documents as in effect upon consummation of the Business Combination. During the period of any Board Observer’s appointment hereunder, and thereafter for the duration of the applicable statute of limitations, Holdings shall cause to be maintained in effect a policy of liability insurance coverage for such Board Observer against liability that may be asserted against or incurred by them in their capacity as Board Observer (or any other alleged, purported or actual relationship with Holdings) which is equivalent in scope and amount to that provided to Holdings’ directors. Holdings acknowledges and agrees that the foregoing rights to indemnification, advancement of expenses and insurance constitute third-party rights extended to the Board Observer by Holdings and do not constitute rights to indemnification, advancement or insurance as a result of the Board Observer serving as a director, officer, employee, or agent of Holdings or its Affiliates.

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(c)            The Board shall meet no fewer than three times per year.

8.16          Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.

8.17          Division/Series Transactions. Any reference herein to a merger, transfer, consolidation, amalgamation, assignment or disposition, or similar term (including, for the avoidance of doubt, any restriction, condition or prohibition applicable thereto), shall be deemed to apply to a Division/Series Transaction, as if it were a merger, consolidation, amalgamation, assignment, investment or disposition, or similar term, as applicable, to, of, or with, a separate Person. Each Person that engages in a Division/Series Transaction and that, prior thereto, is a Subsidiary, a joint venture or any other like term hereunder shall also constitute such a Person or entity hereunder after giving effect to such Division/Series Transaction and any new Person resulting from such Division/Series Transaction shall remain subject to the same restrictions and corresponding exceptions applicable to its predecessor(s). If any Obligor or Subsidiary thereof shall consummate a Division/Series Transaction, such Obligor or such Subsidiary shall be required to (effective simultaneously with the effectiveness of such Division/Series Transaction regardless of any longer time periods otherwise provided for) comply with the applicable requirements of the Security Documents, including actions described in Sections 5.11 and 5.12, to the extent applicable.

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8.18          No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of the Borrower and Holdings acknowledges and agrees, and each of them acknowledges and agrees that it has informed its other Affiliates, that: (i) (A) no fiduciary, advisory or agency relationship between any of Holdings, the Borrower and its Subsidiaries and the Agent or any Lender is intended to be or has been created in respect of any of the transactions contemplated hereby and by the other Loan Documents, irrespective of whether the Agent or any Lender has advised or is advising Holdings, the Borrower and its Subsidiaries on other matters, (B) the arranging and other services regarding this Agreement provided by the Agent and the Lenders are arm’s-length commercial transactions between Holdings, the Borrower and its Subsidiaries, on the one hand, and the Agent and the Lenders, on the other hand, (C) the Borrower and Holdings has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (D) the Borrower and Holdings is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Agent and each Lender is and has been acting solely as a principal and, except as may otherwise be expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for Holdings or any of its Affiliates, or any other Person and (B) neither the Agent nor any Lender has any obligation to Holdings or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Agent and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Holdings and its Affiliates, and neither the Agent nor any Lender has any obligation to disclose any of such interests and transactions to Holdings or any of its Affiliates. To the fullest extent permitted by law, the Borrower and Holdings hereby waives and releases any claims that it may have against the Agent and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

8.19          PATRIOT Act. Each Lender that is subject to the PATRIOT Act and the Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies each Obligor, which information includes the name and address of each Obligor and other information that will allow such Lender or the Agent, as applicable, to identify each Obligor in accordance with the PATRIOT Act. The Borrower shall, promptly following a request by the Agent or any Lender, provide all documentation and other information that the Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation.

[Signatures commence on following page.]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first set forth above.

BORROWER:
PINSTRIPES, INC.
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer
HOLDINGS:
BANYAN ACQUISITION CORPORATION
By:	/s/ Keith Jaffee
Name:	Keith Jaffee
Title:	Chief Executive Officer

[Signatures continued on following page.]

AGENT:
OAKTREE FUND ADMINISTRATION, LLC
By:	/s/ Oaktree Capital Management, L.P.
Its:	Managing Member
By:	/s/ Evan Kramer
Name:	Evan Kramer
Title:	Vice President
By:	/s/ Patrick McCaney
Name:	Patrick McCaney
Title:	Managing Director and Portfolio Manager
LENDERS:
OAKTREE CAPITAL MANAGEMENT, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies
By:	/s/ Evan Kramer
Name:	Evan Kramer
Title:	Vice President
By:	/s/ Patrick McCaney
Name:	Patrick McCaney
Title:	Managing Director and Portfolio Manager

TERMS SCHEDULE

This Terms Schedule is a part of the Loan Agreement, dated as of December 29, 2023, among Pinstripes, Inc., a Delaware corporation, Banyan Acquisition Corporation, a Delaware corporation, Oaktree Fund Administration, LLC, as Agent for the Lenders from time to time party thereto, and the Lenders party thereto from time to time (as at any time amended, restated, amended and restated, modified or supplemented, the “Loan Agreement”). Capitalized terms used in this Terms Schedule, unless otherwise defined herein, shall have the meanings ascribed to them in the Definitions Schedule annexed to the Loan Agreement.

1. Authorized Officers (Definitions Schedule):

In addition to the Senior Officers, each of the following persons:

None.

2. Guarantors (Definitions Schedule):

Name:	Mailing Address:
Banyan Acquisition Corporation	1150 Willow Road Northbrook, IL 60062
Pinstripes Hillsdale LLC	1150 Willow Road Northbrook, IL 60062
Pinstripes at Prairiefire, Inc.	1150 Willow Road Northbrook, IL 60062
Pinstripes Illinois, LLC	1150 Willow Road Northbrook, IL 60062

3. [Reserved].

4. Interest Rates (§1.3):

The “Default Margin” is 2.00% per annum. 

5. Expenses (§1.4):

(a)            The Borrower shall pay a $24,500 per annum administrative fee to the Agent, to be fully earned and payable in advance on the Closing Date and on each anniversary thereof after the Closing Date.

(b)            The Obligors shall reimburse the Agent and the Lenders for all reasonable and documented out of pocket costs and expenses incurred by the Agent or the Lenders (including fees charged by any internal audit or appraisal departments of Lender) in connection with examinations and reviews of each Obligor’s Books and such other matters pertaining to the Obligors or any Collateral as the Agent and the Lenders shall deem appropriate.

6. [Reserved].

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7. Documents to be delivered at closing (§3.1(b)):

(i)            A certificate of each Obligor, dated the Closing Date and executed by its Secretary or Assistant Secretary or other appropriate officer, manager or director, which shall (A) certify the resolutions of its board of directors, managers, members or other body authorizing the execution, delivery and performance of the Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the officers of such Obligor authorized to sign the Loan Documents to which it is a party, and (C) contain appropriate attachments, including (i) the certificate or articles of incorporation or organization of each Obligor certified by the relevant authority of the jurisdiction of organization of such Obligor and a true and correct copy of its by-laws or operating, management or partnership agreement, or other organizational or governing documents, and (ii) a good standing certificate for each Obligor from its jurisdiction of organization or the substantive equivalent available in the jurisdiction of organization for each Obligor from the appropriate governmental officer in such jurisdiction;

(ii)            A favorable legal opinion of (i) Walter Haverfield, (ii) Katten Muchin Rosenman LLP, and (iii) Kirkland & Ellis LLP addressed to the Agent and the Lenders regarding such matters as the Agent and its counsel may request;

(iii)           A certificate, signed by a Senior Officer of the Borrower in such capacity, dated as of the Closing Date (i) stating that no Default or Event of Default has occurred and is continuing, (ii) stating that the representations and warranties contained in the Loan Documents are true and correct in all material respects (or if qualified by materiality, in all respects) as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all respects (or in all material respects for such representations and warranties that are not by their terms already qualified as to materiality) as of such earlier date, and (iii) confirming compliance with the conditions precedent set forth in clause (iv) of Item 8 of this Terms Schedule; 

(iv)           Evidence of insurance, including (a) standard forms of certificates of insurance addressed to the Agent, reasonably satisfactory to the Agent and otherwise confirming the Obligors’ satisfaction of the insurance requirements contained in the Loan Documents and (b) endorsements to such insurance policies naming the Agent as “lenders loss payable”, as their interest may appear, on all property damage policies and as an “additional insured” on all liability policies;

(v)            A solvency certificate signed by a Senior Officer of the Borrower in such capacity dated the Closing Date;

(vi)           Receipt of the consolidated financial statements (including a consolidated balance sheet) of Holdings and its Subsidiaries for the Fiscal Year ended April 30, 2023, for the fiscal quarters ended July 31, 2023 and October 31, 2023, and such other financial reports and information concerning any Obligor as the Agent shall request;

(vii)          All consents and approvals required by any Governmental Authority or any other third party, in each case that are necessary or advisable in connection with the Transactions, and each of the foregoing shall be in full force and effect;

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(viii)          At least five (5) days prior to the Closing Date, any Obligor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Obligor;

  

(ix)            UCC financing statements naming each Obligor as debtor, and the Agent, as secured party; and

(x)             A payment direction letter and flow of funds directing the Agent to disburse the Term Loans in accordance with the flow of funds.

8. Other Closing Conditions (§3.1(f)):

(i)              The Agent shall have received and found satisfactory the results of field examinations, audits, and such other reports, audits and certifications as the Agent shall request with respect to the Collateral;

(ii)             The Agent and the Lenders shall have received at least five (5) days prior to the Closing Date all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, for each Obligor;

(iii)            The Agent and the Lenders shall have received all fees required to be paid, and all expenses (including the reasonable fees and expenses of legal counsel) for which invoices have been presented at least one (1) Business Day prior to the Closing Date;

(iv)            All governmental and third-party approvals necessary in connection with the financing contemplated hereby and the continuing operations of Holdings and its Subsidiaries have been obtained and are in full force and effect; and

(v)             All other agreements, certificates and other documents required to be delivered on the Closing Date as set forth on the closing checklist attached as Exhibit B hereto, and all other actions required to be taken on the Closing Date as set forth on Exhibit B hereto shall have been taken.

9. Financial Covenants.

Each Obligor covenants that, from the Closing Date until the Termination Date and payment in full of the Obligations, the Obligors shall comply with the following covenants:

(i)              Total Net Leverage Ratio. At the end of any Measurement Period during the applicable period set forth in the table below, Holdings and its Subsidiaries shall maintain a Total Net Leverage Ratio of not more than the applicable Total Net Leverage Ratio for such period; provided that Holdings and its Subsidiaries shall not be required to maintain any such Total Net Leverage Ratio for any Measurement Period ending prior to January 6, 2025:

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Relevant Period:	Total Net Leverage Ratio:
Closing Date – January 6, 2025	6.00:1.00
January 7, 2025 – January 4, 2026	5.00:1.00
January 5, 2026 – January 3, 2027	4.50:1.00
January 4, 2027 – January 2, 2028	4.00:1.00
After January 2, 2028	3.75:1.00

10. Notices (§8.4)

If to the Borrower or any other Obligor:

  

Pinstripes, Inc.
1150 Willow Road
Northbrook, IL 60062
Attention: Dale Schwartz
Email: dale@pinstripes.com
Tel: (303) 887-5415

With a copy to (which copy shall not constitute notice) to:

Walter Haverfield LLP
1301 E. 9th St., Suite 3500
Cleveland, OH 44114
Attention: Jacob Derenthal
Email: jderenthal@walterhav.com
Tel: (216) 928-2933

If to Agent and the Lenders:

c/o Oaktree Fund Administration, LLC
333 South Grand Avenue

28^th Floor

Los Angeles, CA 90071
Attention: Evan Kramer; Patrick McCaney
Email: EKramer@oaktreecapital.com; Pmccaney@oaktreecapital.com

GLAS USA LLC

3 Second Street, Suite 206

Jersey City, NJ 07311

Fax:  212-202-6246

Email:  ClientServices.Americas@glas.agency; tmgus@glas.agency

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With a copy to (which copy shall not constitute notice) to:

White & Case LLP
1221 Avenue of the Americas
New York, NY 10020-1095
Attention: Eliza McDougall
Telephone No.: (212) 819-2590
Email: eliza.mcdougall@whitecase.com

[Signatures commence on following page.]

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The undersigned have executed this Terms Schedule on the 29th day of December, 2023.

BORROWER:
PINSTRIPES, INC.
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer
HOLDINGS:
BANYAN ACQUISITION CORPORATION
By:	/s/ Keith Jaffee
Name:	Keith Jaffee
Title:	Chief Executive Officer

[Signatures continued on following page.]

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AGENT:
OAKTREE FUND ADMINISTRATION, LLC
By:	/s/ Oaktree Capital Management, L.P.
Its:	Managing Member
By:	/s/ Evan Kramer
Name:	Evan Kramer
Title:	Vice President
By:	/s/ Patrick McCaney
Name:	Patrick McCaney
Title:	Managing Director and Portfolio Manager
LENDERS:
OAKTREE CAPITAL MANAGEMENT, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies
By:	/s/ Evan Kramer
Name:	Evan Kramer
Title:	Vice President
By:	/s/ Patrick McCaney
Name:	Patrick McCaney
Title:	Managing Director and Portfolio Manager

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DEFINITIONS SCHEDULE

This Definitions Schedule is a part of the Loan Agreement, dated as of December 29, 2023, among Pinstripes, Inc., a Delaware corporation, Banyan Acquisition Corporation, a Delaware corporation, Oaktree Fund Administration, LLC, as Agent for the Lenders from time to time party thereto, and the Lenders party thereto from time to time (as at any time amended, restated, amended and restated, modified or supplemented, the “Loan Agreement”). When used in the Loan Agreement or in any Schedule (including this Definitions Schedule) thereto, the following terms shall have the following meanings (terms defined in the singular to have the same meaning when used in the plural and vice versa):

“Account Debtor” means a Person obligated to pay an Account.

“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in the acquisition of (a) the Equity Interests in another Person causing such Person to become a Subsidiary of the Borrower or (b) assets of another Person which constitute all or substantially all of the assets of such Person or of a line or lines of business or division conducted by such Person.

“Affiliate” means a Person (i) which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, another Person; (ii) which beneficially owns or holds 10% or more of any class of the Equity Interests of a Person; (iii) 10% or more of the Equity Interests with power to vote of which is beneficially owned or held by another Person or a Subsidiary of another Person; or (iv) who is a natural person who is the spouse, former spouse, domestic partner, former domestic partner, or other immediate family member of another Person. For purposes hereof, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of any Equity Interest, by contract or otherwise. For purposes of Section 6.9, “Affiliate” shall include the Permitted Holders.

“Aggregate Commitments” means, as at any date of determination thereof, the sum of all Commitments of all Lenders at such date.

“Agreement” means the Loan Agreement, together with all Schedules (including the Terms Schedule and this Definitions Schedule), and Exhibits thereto (if any), in each case whether now or hereafter annexed thereto.

“AML Laws” means, as to any Obligor and its Subsidiaries, any applicable anti-money laundering laws including, without limitation, the Bank Secrecy Act of 1970, as amended, and the regulations and guidance thereunder.

“Authorized Officer” means each Senior Officer, each Person identified in Item 1 of the Terms Schedule, and each other person designated in writing by the Borrower to the Agent as an authorized officer to request the Term Loans under the Agreement.

“Bankruptcy Code” means title 11 of the United States Code, as in effect from time to time.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

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“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Board” has the meaning set forth in Section 8.15 of the Agreement.

“Board Observer” has the meaning set forth in Section 8.15 of the Agreement.

“Books” means all books and records of any Obligor relating to its existence, governance, financial condition or operations, or any of the Collateral, regardless of the medium in which any such information may be recorded.

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.

“Business Combination” means the transactions contemplated by that certain Business Combination Agreement, dated as of June 22, 2023 (as amended and restated on September 26, 2023, and on November 22, 2023), by and among Banyan Acquisition Corporation, a Delaware corporation, Panther Merger Sub Inc., a Delaware corporation and the Borrower.

“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases or financing leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Cash Equivalents” means, at any time, (a) any evidence of Debt with a maturity date of ninety (90) days or less issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof; provided, that, the full faith and credit of the United States is pledged in support thereof; (b) certificates of deposit or bankers’ acceptances with a maturity of ninety (90) days or less of any financial institution that is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $1,000,000,000; (c) commercial paper (including variable rate demand notes) with a maturity of ninety (90) days or less issued by a corporation (except an Affiliate of any Obligor) organized under the laws of any State of the United States or the District of Columbia and rated at least A-1 by S&P or at least P-1 by Moody’s; (d) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (a) above entered into with any financial institution having combined capital and surplus and undivided profits of not less than $1,000,000,000; (e) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States or issued by any governmental agency thereof and backed by the full faith and credit of the United States, in each case maturing within ninety (90) days or less from the date of acquisition; provided, that, the terms of such agreements comply with the guidelines set forth in the Federal Financial Agreements of Depository Institutions with Securities Dealers and Others, as adopted by the Comptroller of the Currency on October 31, 1985; (f) investments in money market funds and mutual funds which invest substantially all of their assets in securities of the types described in clauses (a) through (e) above; and (g) investments in bond and equity funds which funds have a Morningstar rating of four or higher and a term not in excess of twelve months. For the avoidance of doubt, auction rate securities shall not constitute “Cash Equivalents”.

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“Cash Interest Expense” means, for any period for Holdings and its Subsidiaries, the sum (without duplication) of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent expense with respect to such period under capital leases that is treated as interest in accordance with GAAP, in each case to the extent paid in cash during such period.

“Change of Control” means:

(i)              the lease, license, sale or other disposition of all or substantially all of the assets of the Obligors taken as a whole;

(ii)             the merger or consolidation of Holdings, the result of which the Permitted Holders will not Beneficially Own (as defined in the Director Designation Agreement as in effect on the Closing Date) a number of Shares, directly or indirectly, equal to at least 50% of the Key Individual Shares (as defined in the Director Designation Agreement as in effect on the Closing Date) (subject to adjustment for stock splits, stock dividends, recapitalizations and similar events after the Closing Date) in accordance with the terms of the Director Designation Agreement as in effect on the Closing Date;

(iii)            the Permitted Holders, collectively, ceasing to Beneficially Own (as defined in the Director Designation Agreement as in effect on the Closing Date), in the aggregate, a number of Shares, directly or indirectly, equal to at least 50% of the Key Individual Shares (as defined in the Director Designation Agreement as in effect on the Closing Date) (subject to adjustment for stock splits, stock dividends, recapitalizations and similar events after the Closing Date) in accordance with the terms of the Director Designation Agreement as in effect on the Closing Date;

(iv)            the Borrower shall fail to own and control, directly or indirectly, one hundred percent (100%) of the Equity Interests of its Subsidiaries;

(v)            Holdings shall fail to own and control, directly or indirectly, one hundred percent (100%) of the Equity Interests of the Borrower;

(vi)            any Person, entity, or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), other than the Permitted Holders, shall at any time have acquired direct or indirect beneficial ownership of a percentage of the voting power of the outstanding Equity Interests of Holdings that exceeds 50% thereof;

(vii)           (a) at any time, the Permitted Holders, collectively, ceasing to Beneficially Own (as defined in the Director Designation Agreement as in effect on the Closing Date), in the aggregate, a number of Shares, directly or indirectly, equal to at least 70% of the Key Individual Shares (as defined in the Director Designation Agreement as in effect on the Closing Date) (subject to adjustment for stock splits, stock dividends, recapitalizations and similar events after the Closing Date) in accordance with the terms of the Director Designation Agreement as in effect on the Closing Date and (b) any Person, entity, or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), other than the Permitted Holders, shall at any time have (x) acquired direct or indirect beneficial ownership of a percentage of the voting power of the outstanding Equity Interests of Holdings that exceeds 35% thereof or (y) been granted the right to designate three (3) or more Key Individual Designees (as defined in the Director Designation Agreement as in effect on the Closing Date) for election to the Board (as defined in the Director Designation Agreement as in effect on the Closing Date); and

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(viii)          a “Change of Control” (or similar event) shall have occurred under Silverview Term Loan, the Granite Creek Capital Lease Facility or any other documents evidencing the Debt of any of the Obligors, in an aggregate amount for any such Debt outstanding being in excess of $500,000.

“Change in Law” means the occurrence after the date of the Agreement or, with respect to any Lender, such later date on which such Lender becomes a party to the Agreement, of (a) the adoption of or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) compliance by any Lender with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of the Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted, issued or implemented.

“Closing Date” means December 29, 2023.

“Closing Date Intercreditor Agreements” means, collectively, the Silverview Intercreditor Agreement and the Granite Creek Intercreditor Agreement.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” means, collectively, all of the property and interests in property described in the Security Agreement; all property and interests in property of the Borrower or any other Obligor described in any of the other Security Documents as security for the payment or performance of any of the Obligations; and all other property and interests in property that now or hereafter secures the payment or performance of any of the Obligations, in each case whether real or personal, or tangible or intangible, and wherever located.

“Commitment” means, as to each Lender, its Tranche 1 Term Loan Commitment

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Compliance Certificate” means a Compliance Certificate, in the form required by Agent, to be submitted to the Agent by the Borrower pursuant to the Agreement and certified as true and correct by a Senior Officer.

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“Conforming Financing” means a financing that is provided by a financial institution satisfactory to the Lenders (a “Replacement Senior Lender”) subject to the satisfaction of the following conditions: (i) the aggregate principal amount of the replacement senior debt to be provided by such Replacement Senior Lender shall not exceed the lesser of (x) the amount needed to repay in full the outstanding principal balance due and owing by Borrower under the Silverview Term Loan, (y) the maximum amount of Debt permitted in accordance with this Section 6.3(o) and (z) $35,000,000 (the “Replacement Senior Debt”); (ii) the Lenders shall have received not less than thirty (30) days prior written notice of the closing of any Replacement Senior Debt (including final copies of all documents relating to such Replacement Senior Debt promptly upon such closing (the “Replacement Senior Loan Documents”); (iii) the Replacement Senior Loan Documents shall in all respects be satisfactory to the Lenders and shall contain terms and conditions that are satisfactory to the Lenders (and in any event (a) shall not contain financial covenants that are more restrictive than the Financial Covenants set forth in this Agreement, (b) shall not contain any make-whole obligations, prepayment premiums, exit fees or similar prepayment penalties, (c) shall have an all-in yield (whether in the form of interest rate, upfront fees or original issue discount, margin, interest rate floors or recurring periodic fees in substance equivalent to interest) no greater than 12.5% per annum and (d) shall mature no earlier than the ninety-first (91^st) day after the Stated Maturity Date); (iv) the Replacement Senior Debt shall be first priority secured obligations subject to an intercreditor agreement acceptable to the Agent in its sole discretion; provided that any intercreditor agreement between Replacement Senior Lender and Agent having terms substantially identical to those set forth in the Silverview Intercreditor Agreement shall be deemed acceptable to Agent; (v) the net cash proceeds received by Borrower and Obligors from the Replacement Senior Debt shall be used by the Borrower to repay in full the outstanding principal balance due and owing by Borrower under the Silverview Term Loan, which repayment shall be accompanied by a permanent termination of the Silverview Term Loan and a release of all related Liens; (vi) no Default or Event of Default shall have occurred and be continuing either immediately prior to or immediately after giving effect to the incurrence of such Replacement Senior Debt; and (vii) after giving pro forma effect to the incurrence of such Replacement Senior Debt (and use of proceeds thereof), the Obligors shall be in compliance on a pro forma basis with the Financial Covenants.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consolidated” refers to the consolidation of accounts in accordance with GAAP. “Consolidated Net Income” means, for any period, the net income of Holdings and its Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period determined in accordance with GAAP.

“Control Agreement” means a deposit account control agreement or securities account control agreement in form and substance reasonably satisfactory to the Agent and perfecting the Agent’s security interest in any deposit accounts or securities accounts.

“Convertible Notes” means that (i) that certain Convertible Note, dated as of June 4, 2021, as amended, executed by the Borrower in favor of URW US Services, Inc. in the principal sum of Two Million Five Hundred Thousand Dollars ($2,500,000) and (ii) that certain Convertible Note, dated as of June 4, 2021, as amended, executed by the Borrower in favor of Fashion Square Eco LP in the principal sum of Two Million Five Hundred Thousand Dollars ($2,500,000).

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“Core Business” means the term set forth in Section 6.2 of the Agreement.

“Debt” of any Person means, without duplication, (a) all obligations of such Person for borrowed money (including, without limitation, with respect to overdrafts), (b) all obligations of such Person evidenced by bonds, debentures, notes, Disqualified Equity Interest or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements (other than operating leases) relating to property acquired by such Person, (d) all obligations of such Person upon which interest charges are customarily paid (excluding trade accounts payable incurred in the Ordinary Course of Business and repayable in accordance with customary trade practices), (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding trade accounts payable incurred in the Ordinary Course of Business and repayable in accordance with customary trade practices), and any obligations with respect to earnouts and other similar contingent obligations incurred in connection with acquisitions or investments, (f) all Debt of others secured by any Lien on property owned or acquired by such Person, whether or not the Debt secured thereby has been assumed, (g) all Guarantees by such Person of Debt of others (excluding credit support for suppliers or customers in the Ordinary Course of Business), (h) all Capital Lease Obligations of such Person, (i) all reimbursement obligations of such Person with respect to letters of credit (other than letters of credit that are secured by cash), bankers’ acceptances or similar facilities and (j) all Off-Balance Sheet Liabilities. The Debt of any Person shall include the Debt of any other entity (including any partnership in which such Person is a general partner or joint venturer) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Debt provide that such Person is not liable therefor.

“Default” means an event or condition the occurrence of which would, with the lapse of time or the giving of notice, or both, become an Event of Default.

“Default Rate” means, with respect to any Obligations and during any time that an Event of Default exists, a per annum rate equal to the sum of the Default Margin (as specified in Item 4 of the Terms Schedule), plus the interest rate that otherwise would be in effect at such time under the Loan Documents with respect to such Obligations in the absence of such Event of Default.

"Director Designation Agreement” means the Director Designation Agreement, dated as of the Closing Date, by and among the Borrower and the Key Individual (as defined therein).

“Disqualified Equity Interest” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the payments of dividends or distributions which are mandatory or otherwise required at any time, or (d) is or becomes convertible into or exchangeable for Debt or any other Equity Interest that would constitute Disqualified Equity Interest, in each case, on or prior to the date that is six (6) months after the Termination Date.

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“Distribution” means, in respect of any entity, (i) any dividends or other distributions on Equity Interests of the entity (except distributions in common Equity Interests of such entity), and (ii) any purchase, redemption or other acquisition or retirement for value of any Equity Interests of the entity or an Affiliate of the entity unless made contemporaneously from the net proceeds of the sale of Equity Interests of such entity.

“EBITDA” means, for any Measurement Period, the sum (without duplication) of (A) the Consolidated Net Income of Holdings and its Subsidiaries, plus (B) to the extent deducted from the computation of Consolidated Net Income for such period, the sum of (i) Cash Interest Expense, (ii) the provision for taxes based on income, including federal, state and local income taxes, (iii) depreciation and amortization expense, (iv) Pre-Opening Expenses, (v) one-time, non-recurring fees, charges and other expenses; provided that the aggregate amount added back pursuant to this subclause (v) shall not exceed 10% of EBITDA (calculated before giving effect to all addbacks and adjustments under this definition, including pursuant to this subclause (v)) for any such period for any such period, (vi) to the extent not capitalized in accordance with GAAP, any fees, costs or other expenses in connection with a capital raise by the Borrower or Holdings, whether pursuant to a public or private sale or issuance of Equity Interests of the Borrower or Holdings or by a contribution of capital into the Borrower or Holdings, (vii) non-cash impairments of long lived assets, (viii) non-cash adjustments required in connection with fair value measurements of warrants issued by the Borrower and Holdings (including without limitation the Warrants as defined in this Agreement), (ix) non-cash compensation expenses arising from the grant of stock-based awards by Holdings not to exceed $2.0 million during the 2024 Fiscal Year and increasing by $200,000 for each Fiscal Year thereafter, (x) any and all costs, expenses, and fees related to and arising out of the that certain Business Combination Agreement by and among Banyan Acquisition Corporation, Panther Merger Sub Inc. and Pinstripes, Inc., dated June 22, 2023, and (xi) non-cash rent expenses incurred by Obligors prior to any Restaurant opening minus (C) to the extent included in revenue in computing Consolidated Net Income for such period, one-time, non-recurring gains for such period; provided that, for all purposes of the Agreement and any other Loan Documents, EBITDA shall be calculated without applying the benefit of ASC 842 and instead to reflect “cash rent” rather than “GAAP rent”

“Environmental Action” means any action, suit, demand, demand letter, claim, notice of non-compliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, any Environmental Permit or Hazardous Materials or arising from alleged injury or threat to health, safety or the environment, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.

“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to (i) the environment, (ii) preservation or reclamation of natural resources, (iii) the management, release or threatened release of any Hazardous Material or (iv) health and safety matters.

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“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of Holdings, the Borrower or any of its respective Subsidiaries, directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

“Equity Interest” means the interest of (i) a shareholder in a corporation, (ii) a partner (whether general or limited) in a partnership (whether general, limited or limited liability), (iii) a member in a limited liability company, or (iv) any other Person having any other form of equity security or ownership interest.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

“Erroneous Payment” has the meaning set forth in Section 8.6(h)(i) of the Agreement. “Erroneous Payment Notice” has the meaning set forth in Section 8.6(h)(ii) of the Agreement.

“Event of Default” means any event or condition described in Section 7 of the Agreement.

“Event of Loss” means, with respect to any property, any of the following: (a) any loss, destruction or damage of such property or (b) any condemnation, seizure, or taking, by exercise of the power of eminent domain or otherwise, of such property by any Governmental Authority, or confiscation of such property or the requisition of the use of such property by any Governmental Authority.

“Excess” has the meaning set forth in Section 1.5 of the Agreement.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 1.9, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 1.9(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.

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“Existing Indebtedness” means that Debt under (i) the Silverview Term Loan and (ii) Granite Creek Capital Lease Facility.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“FDA” means the United States Food and Drug Administration or its successor agency in the United States.

“Financial Covenants” has the meaning set forth in Section 8.16 of the Agreement.

“Fiscal Year” means the fiscal year of Holdings and its Subsidiaries for accounting and tax purposes, consisting of thirteen (13) four (4)-week periods which ends closest to April 30^th of each year.

“Fixed Assets” means property of the Obligors consisting of Equipment, Fixtures or real estate.

“Food Safety Laws” means, collectively, to the extent applicable to Holdings and its Subsidiaries, (i) the Federal Food, Drug, and Cosmetic Act, as amended; the Federal Meat Inspection Act, the Poultry Products Inspection Act, the Egg Products Inspection Act, the Organic Foods Production Act of 1990, the Food Safety Modernization Act, the Lanham Act, the Food Security Act, PASA and PACA, in each case, as amended; the Federal Trade Commission Act, as amended; and (ii) any other applicable federal, state and municipal, domestic and foreign law governing the import, export, procurement, holding, distribution, sale, manufacturing, processing, packing, packaging, safety, purity, taxation, labeling, and/or advertising of food (including state and local food codes) as amended and in effect from time to time or that are similar or analogous to any of the foregoing; and, in respect to all such laws, all rules, regulations, standards, guidelines, policies and orders administered by the FDA, USDA, FTC, and any other Governmental Authority.

“Foreign Lender” means any Lender that is not a U.S. Person.

“FTC” means the United States Federal Trade Commission or its successor agency in the United States.

“GAAP” means generally accepted accounting principles in the United States of America in effect from time to time.

“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether foreign, state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

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“Granite Creek Capital Lease Facility” means a furniture, fixtures and equipment loan dated April 19, 2023, as amended, provided by Granite Creek FlexCap II, L.P. (and/or its affiliates) with GCCP II Agent, LLC, as agent in an aggregate amount equal to $16,500,000 primarily to fund the purchase by the Borrower of certain furniture, fixtures and equipment to be used in the next six (6) new Restaurants of the Borrower and its Subsidiaries.

“Granite Creek Intercreditor Agreement” means the Intercreditor Agreement, dated as of the Closing Date, among the Agent, the agent under the Granite Creek Capital Lease Facility, and acknowledged by each Obligor in form and substance satisfactory to the Lenders.

“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Debt of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Debt of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Debt or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Debt; provided, that the term Guarantee shall not include (i) endorsements for collection or deposit in the Ordinary Course of Business, (ii) joint and several liability imposed by Environmental Laws, or (iii) credit support to suppliers or customers provided in the Ordinary Course of Business.

“Guarantor” means each Person listed on Item 2 of the Terms Schedule as a Guarantor and any other Person who may guarantee payment or collection of any of the Obligations.

“Guaranty” means each guaranty now or hereafter executed by a Guarantor with respect to any of the Obligations.

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Indemnitees” means the Agent, each Lender and each of their respective officers, directors, agents (including legal counsel) and Affiliates.

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“Insolvency Proceeding” means a bankruptcy, receivership, assignment for the benefit of creditors, debt adjustment, liquidation or any other insolvency case or proceeding under any applicable law.

“Intellectual Property” means any and all patents, copyrights, trademarks and software, including without limitation all patent rights, and inventions and discoveries and invention disclosures (whether or not patented), trade names, trade dress, logos, packaging design, slogans, Internet domain names, registered and unregistered trademarks and service marks and related registrations and applications for registration, copyrights in both published and unpublished works, know-how, trade secrets, confidential or proprietary information, research in progress, algorithms, data, designs, processes, formulae, drawings, schematics, blueprints, flow charts, models, strategies, prototypes, techniques, and goodwill, franchises, licenses, permits, consents, approvals, and claims of infringement against third parties

“Interest Payment Date” has the meaning set forth in Section 1.2(a)(ii) of the Agreement.

“IRS” means the United States Internal Revenue Service.

“Lender Expenses” means all of the following: (a) Taxes and insurance premiums required to be paid by the Obligors under the Loan Documents which are paid or advanced by the Agent or any Lender; (b) filing, recording, publication and search fees paid or incurred by the Agent or any Lender, including all recording taxes; and (c) the reasonable and documented out of pocket costs, fees (including reasonable attorneys’, paralegals’, auctioneers’, appraisers’ or other consultants fees) and expenses incurred by the Agent or any Lender (i) to inspect, copy, audit or examine or any of the Obligors’ Books or inspect, count or appraise any Collateral, (ii) to correct any default or enforce any provision of any of the Loan Documents, whether or not litigation is commenced, (iii) in gaining possession of, maintaining, handling, preserving, insuring, storing, shipping, preparing for sale, advertising for sale, selling or foreclosing a Lien upon any of the Collateral, whether or not a sale is consummated, (iv) in collecting the Accounts or recovering any of the Obligations, or (v) in structuring, drafting, reviewing or preparing any of the Loan Documents, or any amendment, modification or waiver of any of the Loan Documents or in defending the validity, priority or enforceability of Liens.

“Lien” means any interest in property (including for the avoidance of doubt securing an obligation owed to or a claim by a Person), whether such interest is based on common law, statute or contract.

“Lien Waiver” means the waiver or subordination of Liens reasonably satisfactory to the Agent from a lessor, mortgagee, warehouse operator, processor or other third party that may have a Lien upon any Collateral that is in such third party’s possession or is located or leased by such party to any Obligor, by which such Person shall waive or subordinate its Liens and claims with respect to any Collateral in favor of Lender and shall assure Lender’s access to any Collateral for the purpose of allowing Agent to enforce its rights and Liens with respect thereto.

“Liquor License Subsidiary” means, individually or collectively, as applicable, each of (i) Pinstripes Hillsdale LLC, a California limited liability company and (ii) Pinstripes at Prairiefire, Inc., a Kansas corporation.

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“Loan Account” has the meaning set forth in Section 1.6 of the Agreement.

“Loan Documents” means, collectively, the Agreement, each Note, the Security Documents, each Guaranty, the Closing Date Intercreditor Agreements, any other subordination or intercreditor agreement applicable to any Debt permitted to be incurred under the Agreement, each agreement evidencing or relating to any, and any other instruments or agreements executed by an Obligor in connection with the Agreement or any of the Obligations.

“Make-Whole Amount”: means, on any date of determination, an amount equal to the present value of the amount of interest that would have been paid on the principal amount of the Term Loans at the interest rates set forth in Section 1.3 that are so prepaid, repaid (or deemed repaid), redeemed, paid, refinanced or accelerated from the date of prepayment, repayment (or deemed repayment), redemption, payment, refinancing or acceleration through and including the Stated Maturity Date, discounted to the date of prepayment on a quarterly basis (assuming a 360-day year and actual days elapsed) at a rate equal to the sum of the Treasury Rate two Business Days prior to the date of prepayment, repayment (or deemed repayment), payment, refinancing, redemption or acceleration plus 0.50%.

“Material Adverse Effect” means the effect of any event, condition, action, omission or circumstance, which, alone or when taken together with other events, conditions, actions, omissions or circumstances occurring or existing concurrently therewith, (i) has, or with the passage of time is reasonably likely to have, a material adverse effect upon the business, operations, properties, or financial condition of any Obligors taken as a whole; (ii) has or could be reasonably expected to have any material adverse effect upon the validity or enforceability of the Agreement or any of the other Loan Documents; (iii) has any material adverse effect upon the title to or value of any material part of the Collateral, the Liens of Lender with respect to the Collateral or the priority of any such Liens; (iv) materially impairs the ability of the Obligors taken as a whole to perform their obligations under any of the Loan Documents, including repayment of any of the Obligations when due; or (v) materially impairs or delays Lender’s ability to enforce or collect the Obligations or realize upon any of the Collateral in accordance with the Loan Documents or applicable law.

“Material Contract” means all contracts, agreements or licenses, that the early termination, cancellation, loss, abandonment or other disposition of which, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.

“Measurement Period” means, at any date of determination, a period of four (4) consecutive, trailing fiscal quarters ending at the end of each prescribed fiscal quarter.

“Modified Make-Whole Amount” means, on any date of determination, an amount equal to the present value of the amount of interest that would have been paid on the principal amount of the Term Loans at the interest rates set forth in Section 1.3 that are so prepaid, repaid (or deemed repaid), redeemed, paid, refinanced or accelerated from the date of prepayment, repayment (or deemed repayment), redemption, payment, refinancing or acceleration through and including December 29, 2027, discounted to the date of prepayment on a quarterly basis (assuming a 360-day year and actual days elapsed) at a rate equal to the sum of the Treasury Rate two Business Days prior to the date of prepayment, repayment (or deemed repayment), payment, refinancing, redemption or acceleration plus 0.50%.

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“NASDAQ” means the National Association of Securities Dealers Automated Quotations.

“Net Proceeds” means,

(a)             with respect to any disposition by any Obligor, including, without limitation, a disposition in any Insolvency Proceeding, the excess of (i) the sum of cash and cash equivalents received by such Person from such disposition, over (ii) the reasonable and customary out-of-pocket expenses incurred by such Obligor in connection with such transaction (including, without limitation, appraisals, and brokerage, legal, title and recording or transfer tax expenses and commissions) paid by any Obligor to third parties (other than Affiliates);

(b)             with respect to any Event of Loss, the excess of (i) the sum of cash received by such Person from such Event of Loss, over (ii) the reasonable and customary out-of-pocket expenses incurred by such Obligor in connection with such Event of Loss paid by any Obligor to third parties (other than Affiliates); and

(c)             with respect to any incurrence of Debt by any Obligor, the excess of the gross proceeds received by such Person from such incurrence of Debt (net of fees, commissions, reasonable costs and expenses, including, but not limited to, reasonable attorneys’ fees and other professional fees, if any, incurred in connection therewith but excluding any expenses paid to another Obligor or any Affiliate thereof).

“Notes” means each promissory note executed by the Borrower at a Lender’s request to evidence any of the Obligations.

“Notice of Borrowing” means a notice of a Term Borrowing substantially in the form of Exhibit A.

“NYSE” means the New York Stock Exchange.

“Oaktree” means certain investment funds, separate accounts or other entities owned (in whole or in part), controlled, managed and/or advised by Oaktree Capital Management, L.P.

“Obligations” means all Debts, obligations, covenants, and duties now or at any time or times hereafter owing by the Obligors to the Agent and/or the Lenders of any kind and description, whether incurred pursuant to or evidenced by any of the Loan Documents or any other agreement and whether direct or indirect, absolute or contingent, due or to become due, or joint or several, including the principal of, interest on and Make-Whole Amount in respect of the Term Loans, all fees, all obligations of the Obligors in connection with any indemnification of the Agent or any Lender, all obligations of the Obligors to reimburse the Agent or any Lender in connection with any letters of credit or bankers acceptances, and all Lender Expenses. Notwithstanding the foregoing, the Obligations shall not include the Warrants nor any obligations, covenants and duties thereunder.

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“Obligors” means the Borrower, Holdings, each other Guarantor, and each other Person that is at any time liable for the payment of the whole or any part of the Obligations or that has granted in favor of the Agent for the benefit of the Lenders a Lien upon any of such Person’s assets to secure payment of any of the Obligations.

“OFAC” has the meaning set forth in the definition of “Sanctions”.

“Off-Balance Sheet Liabilities” means, with respect to any Person, (a) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (b) any liability under any so-called “synthetic lease” arrangement or transaction entered into by such Person, (c) any liability of such Person under any sale and leaseback transactions that do not create a liability on the balance sheet of such Person, or (d) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person.

“Ordinary Course of Business” means, with respect to any Person, the ordinary course of such Person’s business, as conducted by such Person in accordance with past practices and undertaken by such Person in good faith and not for the purpose of evading any covenant or restriction in any Loan Document.

“Organizational Documents” means, with respect to any Person, its charter, certificate or articles of incorporation, bylaws, articles of organization, limited liability agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust, or similar agreement or instrument governing the formation or operation of such Person.

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment pursuant to a request by the Borrower).

“Outstanding Amount” means with respect to Term Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, as the case may be, occurring on such date.

“PACA” means the Perishable Agricultural Commodities Act of 1930 and all regulations promulgated thereunder.

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“PASA” means the Packers and Stockyards Act of 1921 and all regulations promulgated thereunder.

“Perfection Certificate” means the Perfection Certificate dated as of the Closing Date and executed by each Obligor in favor of the Agent, as may be updated from time to time by the Obligors.

“Permitted Acquisition” means any Acquisition by an Obligor whether by purchase, merger or otherwise, of (i) substantially all of the assets of a Person, or of all or substantially all of any business or division of a Person or (ii) no less than 100% of the capital stock, partnership interests, membership interests or equity of any Person, so long as:

(a)             the Person to be (or whose assets are to be) acquired does not oppose such Acquisition and, if applicable, such Acquisition has been approved by such Person’s board of directors (or other appropriate governing body), and the line or lines of business of the Person to be acquired constitute Core Businesses (it being understood that Acquisitions of assets through sales under Article 9 of the UCC and pursuant to bankruptcy proceedings shall be permitted);

(b)             no Default or Event of Default shall have occurred and be continuing either immediately prior to or immediately after giving effect to such Acquisition;

(c)             after giving pro forma effect to such Acquisition (including the issuance of Equity Interests and other property given as consideration and all fees expenses and transaction costs incurred in connection therewith), the Obligors shall be in compliance on a pro forma basis with the Financial Covenants recomputed for the most recently ended fiscal quarter for which information is available regarding the business being acquired;

(d)             subject to the obligations of the Borrower and each other Obligor regarding material nonpublic information as set forth in the final paragraph of Section 5.6, the Borrower shall have furnished Agent and the Lenders with ten (10) Business Days’ (or such shorter period as may be agreed by Agent) prior written notice of such intended Acquisition and shall have furnished Agent with a current draft of the applicable acquisition documents (and final copies thereof as and when executed) and, (i) a due diligence package, which package shall consist of the following with regard to such Acquisition (to the extent made available in the context of such Acquisition and, if appropriate, subject to the entry into customary non-disclosure and non-reliance letters): (1) a pro forma balance sheet and pro forma financial projections (each, after giving effect to such Acquisition) for the Borrower and its Subsidiaries for the twelve (12) month period following such Acquisition (prepared on a monthly basis) and the subsequent two (2) Fiscal Years or through the remaining term of this Agreement; (2) appraisals (if existing); (3) historical financial statements of the Person to be (or whose assets are to be) acquired for the three (3) fiscal years prior to such Acquisition (or, if such Person has not been in existence for three (3) years, for each year such Person has existed); and (4) a description of the method of financing the Acquisition, including sources and uses, and (ii) to the extent a quality of earnings report is obtained by the Obligors in connection with such Acquisition, such quality of earnings report;

(e)             the Borrower shall have furnished to the Agent and the Lenders at least five (5) days prior to the date on which any such Acquisition is to be consummated (or such shorter time as the Agent may allow) a certificate of a Senior Officer of the Borrower, in form and substance reasonably satisfactory to the Agent, (i) certifying that all of the requirements for a Permitted Acquisition will be satisfied on or prior to the consummation of such Acquisition and (ii) a reasonably detailed calculation of item (d) above (and such certificate shall be updated as necessary to make it accurate in all material respects as of the date the Acquisition is consummated);

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(f)              at or prior to the closing of any such proposed Permitted Acquisition, such Person being acquired shall become an Obligor and Agent will be granted a perfected second priority Lien (subject to Permitted Liens subject to the terms of the Closing Date Intercreditor Agreements)) in substantially all assets acquired pursuant thereto or in the assets and Equity Interests of the Person being acquired, and the Obligors and such Person shall have executed such documents and taken such actions as may be reasonably required by Agent in connection therewith (including the delivery of (A) certified copies of the resolutions of the board of directors (or comparable governing board) of the Borrower and its Subsidiaries and such Person authorizing such Permitted Acquisition and the granting of Liens described herein, (B) legal opinions, in form and substance reasonably acceptable to the Agent, with respect to the transactions described herein, and (C) evidence of insurance of the business to be acquired consistent with the requirements of Section 5.10 of the Agreement); provided that if any Lien on any Collateral (including the creation or perfection of any Lien) is not or cannot reasonably be created and/or perfected on the closing date of such Acquisition after the Borrower’s use of commercially reasonable efforts to do so, without undue burden or expense (other than (x) the pledge of certificated Equity Interests of any Subsidiary, (y) the grant and perfection of security interests in other assets pursuant to which a Lien may be perfected solely by the filing of a financing statement under the Uniform Commercial Code, and (z) the filing of intellectual property security agreements with the U.S. Patent and Trademark Office or the U.S. Copyright Office, as applicable), then the creation and/or perfection of any such Lien on such Collateral shall not constitute a requirement to close such Permitted Acquisition and shall be required to be created and/or perfected within thirty (30) days (or such longer period as the Agent may agree) after the closing date of such Permitted Acquisition; and

(g)             the consideration for the proposed Permitted Acquisition shall solely consist of (or be financed with) the sale or issuance of Equity Interests of the Borrower (and any net cash proceeds thereof, or any cash capital contribution in lieu thereof).

“Permitted Asset Disposition” means a sale, lease, license, consignment or other transfer or disposition of assets (real or personal, tangible or intangible, but excluding any Equity Interests of the Borrower or any of its Subsidiaries) of an Obligor, including a disposition of property of an Obligor in connection with a sale-leaseback transaction or synthetic lease, (a) in each case if such disposition is a transfer of property to the Borrower by another Obligor (other than Holdings) or (b) other sales, leases, licenses, consignments or other transfers or dispositions of assets (real or personal, tangible or intangible, but excluding any Equity Interests of the Borrower or any of its Subsidiaries), with a fair market value not to exceed $500,000 in any Fiscal Year; provided, that (i) no Event of Default has occurred and is continuing at the time of such disposition or would immediately result therefrom, (ii) at least 75% of the consideration in respect of such disposition is cash or Cash Equivalents and is paid at the time of closing of such disposition, (iii) the consideration in respect of such disposition is at least equal to the fair market value (as determined in good faith by the Borrower) of the assets being disposed, and (iv) all proceeds thereof are remitted to the Agent for application to the obligations in accordance with Section 1.2(a)(iv)(C) of the Agreement if required thereby.

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“Permitted Capital Lease Debt” means, collectively, (i) all outstanding Debt of the Obligors as of the Closing Date set forth on Schedule 6.3 with respect to furniture fixtures and equipment financing incurred by the Borrower or any of its Subsidiaries in the Ordinary Course of Business, plus (ii) any Debt with respect to furniture fixtures and equipment financing incurred by the Borrower or any of its Subsidiaries in the Ordinary Course of Business after the Closing Date; provided that in no event shall the aggregate principal amount of such Debt incurred after the Closing Date, when taken together with the Granite Creek Capital Lease Facility and any financing provided by Brunswick Bowling Products, LLC, exceed 150% of EBITDA as of the most recently completed Measurement Period ending prior to the date of incurrence; provided that the terms of any Permitted Capital Lease Debt shall be no worse to the Borrower than the terms provided in respect of the Granite Creek Capital Lease Facility as in effect on the date hereof.

“Permitted Holders” means, collectively, Dale Schwartz and his spouse and descendants (whether natural or adopted), and any trust, limited partnership, limited liability company, corporation or other entity that is and remains majority owned or controlled, directly or indirectly, by him and/or his spouse and/or descendants or that is or remains for the majority benefit of him and/or his spouse and/or descendants and is controlled by him.

“Permitted Lien” means any of the following: (i) Liens granted in favor of the Agent for the benefit of the Lenders; (ii) Liens for Taxes (excluding any Lien imposed pursuant to the provisions of ERISA) not yet due or being Properly Contested; (iii) statutory Liens (other than Liens for Taxes or Liens securing bonding or other surety arrangements) arising in the Ordinary Course of Business of the Borrower or any of its Subsidiaries, but only if and for so long as payment in respect of such Liens is not at the time required or the Debt secured by any such Liens is being Properly Contested and such Liens do not materially detract from the value of the property of the Borrower or such Subsidiary and do not materially impair the use thereof in the operation of the Borrower’s or such Subsidiary’s business; (iv) Liens arising from the rendition, entry or issuance against the Borrower or any other Obligor of any judgment which do not constitute an Event of Default; (v) normal and customary rights of setoff upon deposits of cash in favor of banks and other depository institutions and Liens of a collecting bank arising under the UCC, on payment items in the course of collections; (vi) Liens granted to the agent and/or lender pursuant to the Silverview Term Loan and the documents governing the Granite Creek Capital Lease Facility, in each case, as in effect on the date hereof and subject to, and in accordance with, the applicable Closing Date Intercreditor Agreement in all respects; (vii) Liens securing Permitted Capital Lease Debt; provided that such Liens are confined to the property so acquired and secure only the Debt incurred to acquire such property; (viii) [reserved]; (ix) statutory Liens of landlords, banks, carriers, warehousemen, mechanics, repairmen, workmen or materialmen and other Liens imposed by law incurred in the Ordinary Course of Business and that do not secure Debt for borrowed money, which, if they secure obligations that are (i) due and remain unpaid for more than 60 days and (ii) in excess of $100,000 individually, are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings have the effect of preventing the forfeiture or sale of the Property subject to any such Lien; (x) Liens incurred in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, binds, leases, trade contracts, performance and return-of-money bonds and other similar obligations (in each case exclusive of obligations for the payment of Debt); (xi) [reserved]; (xii) Liens arising from precautionary UCC filings in respect of operating leases entered into in the Ordinary Course of Business; (xiii) deposits made in the Ordinary Course of Business to secure liability to insurance carriers and Liens arising by operation of law or contract on insurance policies and the proceeds thereof to secure premiums thereon and Liens in the Ordinary Course of Business securing liability for premiums or reimbursement or indemnification obligations of insurance carriers; and (xiv) such other Liens as may be consented to in writing by the Agent in its sole discretion.

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“Permitted Revolving Debt” means an unsecured revolving credit and/or letter of credit facility incurred by the Borrower and/or any other Obligor (other than Holdings and the Liquor License Subsidiaries) that satisfies all of the following conditions, as determined by the Agent in its sole discretion:

(a)             the aggregate principal amount of such Debt shall not exceed $5,000,000;

(b)             at the time of incurrence and for so long as such Permitted Revolving Debt or Commitments in respect thereof remain outstanding, all unrestricted cash and cash equivalents of the Obligors shall be held in a deposit account(s) that are pledged to and subject to a Control Agreement in favor of the Agent and/or the lenders under the Existing Indebtedness;

(c)             no Default or Event of Default has occurred and is continuing or would immediately thereafter result from the incurrence of such Debt;

(d)             such Debt shall not be subject to any guarantee by (i) any Person other than an Obligor and (ii) Holdings and the Liquor License Subsidiaries; and

(e)             the covenants and events of default contained in the Permitted Revolving Debt Documents shall not, taken as a whole, be more onerous in any material respect than those contained in the corresponding provisions in the Agreement

“Permitted Revolving Debt Documents” means the definitive documents governing the Permitted Revolving Debt.

“Person” means an individual, general partnership, limited partnership, corporation, limited liability company, limited liability partnership, joint stock company, land trust, business trust, or unincorporated organization, or a Governmental Authority, department, or other subdivision thereof.

“Plan” means an employee pension benefit plan that is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and that is either (i) maintained by any Obligor for employees, or (ii) maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which an Obligor is then making or accruing an obligation to make contributions or has within the preceding five (5) years made or accrued such contributions.

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“Pre-Opening Expenses” means all cash expenses incurred in preparation of a Restaurant opening, to the extent not capitalized and amortized in accordance with GAAP, including, without limitation, the cost of feasibility studies, staff training, recruiting, travel costs for employees engaged in such start-up activities, advertising and rent accrued prior to opening, in an amount not to exceed $750,000 per Restaurant.

“Properly Contested” means, in the case of any Debt of an Obligor (including any Taxes) that is not paid as and when due or payable by reason of such Obligor’s bona fide dispute concerning its liability to pay same or concerning the amount thereof, (i) such Debt is being properly contested in good faith by appropriate proceedings promptly instituted and diligently conducted; (ii) such Obligor has established appropriate reserves as shall be required in conformity with GAAP; (iii) the non-payment of such Debt will not have a Material Adverse Effect; (iv) no Lien is imposed upon any of such Obligor’s assets with respect to such Debt unless such Lien is at all times subordinate in priority to the Liens of the Agent for the benefit of the Lenders (except only with respect to property taxes that have priority as a matter of applicable state law) and enforcement of such Lien is stayed during the period prior to the final resolution or disposition of such dispute; (v) if the Debt results from, or is determined by the entry, rendition or issuance against an Obligor or any of its assets of a judgment, the enforcement of such judgment is stayed pending a timely appeal or other judicial review; and (vi) if such contest is abandoned, settled or determined adversely (in whole or in part) to such Obligor, such Obligor forthwith pays such Debt and all penalties, interest and other amounts due in connection therewith.

“Recall” has the meaning set forth in Section 4.19 of the Agreement

“Recipient” means the Agent or any Lender, as applicable.

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, managers, general partners, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

“Required Lenders” means, at any time, one or more Lenders having or holding Term Loans or unused Commitments representing more than 50% of the sum of the aggregate outstanding Term Loans and unused Commitments at such time; provided that notwithstanding anything to the contrary herein, “Required Lenders” shall at all times include Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, and any of its Affiliates who are Lenders at such time.

“Restaurant” means any restaurant owned or leased by the Borrower or any of its Subsidiaries.

“Sale-Leaseback Transaction” means any arrangements with any Person providing for the leasing by the Borrower or any of its Subsidiaries of real or personal property which has been or is to be sold or transferred by the Borrower or such Subsidiary to such Person or to any other Person to whom funds have been or are to be advanced by such Person in connection therewith.

“Sanctioned Jurisdiction” means, at any time, a country, territory or geographical region which is itself the subject or target of any Sanctions.

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“Sanctions” means economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by U.S. Governmental Authorities (including, but not limited to, the Office of Foreign Assets Control (“OFAC”), the U.S. Department of State and the U.S. Department of Commerce), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or any other relevant Governmental Authority.

“Sanctions Target” means any Person: (a) that is the subject or target of any Sanctions; (b) named in any Sanctions-related list maintained by OFAC, the U.S. Department of State, the U.S. Department of Commerce or the U.S. Department of the Treasury, including the OFAC list of “Specially Designated Nationals and Blocked Persons;” (c) operating, organized or resident in a Sanctioned Jurisdiction; or (d) owned or controlled by any such Person or Persons described in the foregoing clauses (a)-(c).

“Security Agreement” means the Pledge and Security Agreement between the Obligors and the Agent dated or to be dated on or about the date hereof.

“Security Documents” means each instrument, mortgage or agreement at any time securing or assuring payment of any of the Obligations, including, but not limited to, the Security Agreement, each Guaranty, any Lien Waiver and any Control Agreements.

“Senior Officer” means, with respect to any Person, on any date, any person occupying any of the following positions of such Person on such date: the chair of the board of directors, president, chief executive officer, chief financial officer, chief accounting officer, treasurer, managing member or managing partner.

“Silverview Intercreditor Agreement” means the Intercreditor Agreement, dated as of the Closing Date, among the Agent, the agent under the Silverview Term Loan, and acknowledged by each Obligor in form and substance satisfactory to the Lenders.

“Silverview Term Loan” means that certain Loan Agreement, dated March 7, 2023, as amended, among the Borrower, as borrower, the financial institutions from time to time party thereto as lenders and Silverview Credit Partners LP, as agent.

“Solvent” means, as to any Person: (a) the fair value of the assets of such Person, at a fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of such Person will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) such Person will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (d) such Person will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted after the Closing Date; and (e) Holdings and its Subsidiaries are “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and applicable laws relating to fraudulent transfers and conveyances.

“Stated Maturity Date” means December 29, 2028.

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“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held by the parent and/or one or more subsidiaries of the parent.

“Subsidiary” means, with respect to any Obligor, any direct or indirect subsidiary thereof.

“Supplemental Collateral Agent” means the term set forth in Section 8.6(c) of the Agreement.

“Taxes” means any present or future taxes, levies, imposts, duties, fees, assessments, deductions, withholdings or other charges of whatever nature, including income, receipts, excise, property, sales, use, transfer, license, payroll, withholding, social security and franchise taxes now or hereafter imposed or levied by the United States or any other Governmental Authority and all interest, penalties, additions to tax and similar liabilities with respect thereto.

“Term Borrowing” means a Tranche 1 Term Borrowing and/or a Tranche 2 Term Borrowing, as applicable.

“Term Loans” means, collectively, the Tranche 1 Term Loans and the Tranche 2 Term Loans made to the Borrower pursuant to Section 1.1(a) of the Agreement.

“Termination Date” means the earlier to occur of (i) the Stated Maturity Date and (ii) the date on which all Loans shall become due and payable in full, whether by acceleration or otherwise, in accordance with the terms of the Agreement.

“Terms Schedule” means the Terms Schedule annexed to the Agreement.

“Total Debt” means, as of any date of determination, for Holdings and its Subsidiaries on a Consolidated basis, (a) the total of (i) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including the Obligations) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (ii) all purchase money Debt and all Capital Lease Obligations, (iii) all direct obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments solely to the extent not reimbursed within five (5 Business Days of when such obligations become due and payable, (iv) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the Ordinary Course of Business), and (v) without duplication, all Guarantees with respect to outstanding Debt of the types specified in clauses (i) through (iv) above of Persons other than the Borrower or any of its Subsidiaries.

“Total Net Debt” means, as of any date of determination, for Holdings and its Subsidiaries on a Consolidated basis, (a) Total Debt of Holdings and its Subsidiaries as of such date of determination, less (b) unrestricted cash and Cash Equivalents on the balance sheet of Holdings and its Subsidiaries, to the extent deposited in or credited to deposit accounts and/or securities account, subject to Control Agreements for the benefit of the agent under the Silverview Term Loan and/or the Agent.

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“Total Net Leverage Ratio” means, as of any date of determination, the ratio of Total Net Debt of Holdings and its Subsidiaries at such date, to EBITDA of Holdings and its Subsidiaries for the most recently completed Measurement Period.

“Total Outstandings” means, without duplication, the aggregate Outstanding Amount of all Term Loans at such time.

“Tranche 1 Term Borrowing” means a borrowing consisting of Tranche 1 Term Loans made by each of the Tranche 1 Term Lenders pursuant to Section 1.1(a) of the Agreement.

“Tranche 1 Term Lender” means each Lender that has a Tranche 1 Term Loan Commitment or, following termination of the Tranche 1 Term Loan Commitments, has Tranche 1 Term Loans outstanding.

“Tranche 1 Term Loan” means a Term Loan made to the Borrower on the Closing Date pursuant to Section 1.1(a)(i) of the Agreement.

“Tranche 1 Term Loan Commitment” means, as to each Tranche 1 Term Lender, its obligation to make Tranche 1 Term Loans to the Borrower on the Closing Date pursuant to Section 1.1(a)(i) of the Agreement in an aggregate original principal amount equal to the amount set forth opposite such Tranche 1 Term Lender’s name on Schedule 1.1 hereto. On the Closing Date, the aggregate amount of Tranche 1 Term Loan Commitments is $50,000,000.

“Tranche 2 Term Borrowing” means a borrowing consisting of Tranche 2 Term Loans made by each of the Tranche 2 Term Lenders pursuant to Section 1.1(a)(ii) of the Agreement.

“Tranche 2 Term Lender” means each Lender that makes a Tranche 2 Term Loan.

“Tranche 2 Term Loan” means a Term Loan made to the Borrower pursuant to Section 1.1(a)(ii) of the Agreement.

“Tranche 2 Term Loan Availability Period” means the period commencing on the earlier of (a) the date that is nine months following the Closing Date and (b) upon the occurrence of a Default and ending on the Tranche 2 Term Loan Commitment Termination Date.

“Tranche 2 Term Loan Commitment Termination Date” means the earlier to occur of (i) twelve months following the Closing Date and (ii) the date on which the Obligations shall become due and payable in full, whether by acceleration or otherwise, in accordance with the terms of the Agreement.

“Treasury Rate”: as of any date of determination, the rate (expressed as a percentage per annum and rounded up to the next nearest 1/1000 of 1%) that appears on the Federal Reserve Statistical Release H. 15 (519) under the heading “U.S. Government Securities – Treasury Constant Maturities” (or the successor thereto) as of 11:00 a.m., New York City time, on such date, for the constant maturity most nearly equal to the period from the Settlement Date to the second anniversary of the Closing Date (or, if greater, a constant maturity of one year).

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“TTB” means the United States Alcohol and Tobacco Tax and Trade Bureau or its successor agency in the United States.

“UCC” means the Uniform Commercial Code (or any successor statute) as adopted and in force in the State of New York or, when the laws of any other state govern the method or manner of the perfection or enforcement of any security interest in any of the Collateral, the Uniform Commercial Code (or any successor statute) of such state.

“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” has the meaning specified in Section 1.9(g).

“USDA” means the United States Department of Agriculture or its successor agency in the United States.

“Warrant” means, collectively, (i) the Warrant to Purchase Common Stock, dated as of the Closing Date, executed by the Borrower in favor of Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, (ii) the Warrant to Purchase Common Stock, dated as of the 181^st day after the Closing Date, executed by the Borrower in favor of Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, and (iii) the Warrant to Purchase Common Stock, dated as of the closing date for the Tranche 2 Term Loan, executed by the Borrower in favor of Oaktree Capital Management, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies, in each case as amended, modified, supplemented, extended or restated from time to time.

“Withholding Agent” means the Borrower and the Agent.

All other capitalized terms contained in the Agreement and not otherwise defined therein shall have, when the context so indicates, the meanings provided for by the UCC. Without limiting the generality of the foregoing, the following terms shall have the meaning ascribed to them in the UCC: Account, Chattel Paper, Commercial Tort Claim, Deposit Account, Document, Electronic Chattel Paper, Equipment, Fixtures, Goods, General Intangible, Instrument, Inventory, Investment Property, Letter-of-Credit Right, Payment Intangible, Security, Securities Account, and Software.

[Signatures commence on following page.]

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The undersigned have executed this Definitions Schedule on the   29th   day of December, 2023.

BORROWER:
PINSTRIPES, INC.
By:	/s/ Dale Schwartz
Name: Dale Schwartz
Title: Chief Executive Officer

HOLDINGS:

BANYAN ACQUISITION CORPORATION

By:	/s/ Keith Jaffee
Name: Keith Jaffee
Title: Chief Executive Officer

AGENT: 

OAKTREE FUND ADMINISTRATION, LLC

By: Oaktree Capital Management, L.P. 

Its: Managing Member 

By:	/s/ Evan Kramer
Name: Evan Kramer
Title: Vice President

LENDERS:

OAKTREE CAPITAL MANAGEMENT, L.P. as investment manager on behalf of certain funds and accounts within the Value Equities, Global Opportunities and Special Situations strategies

By:	/s/ Evan Kramer
Name: Evan Kramer
Title: Vice President
By:	/s/ Patrick McCaney
Name: Patrick McCaney
Title: Managing Director and Portfolio Manager

Exhibit A

[FORM OF] NOTICE OF BORROWING

Date: [           ], 202[__]

To: Oaktree Fund Administration, LLC, as

Agent Ladies and Gentlemen:

Reference is made to that certain Loan Agreement, dated as of December 29, 2023 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Loan Agreement”; the terms defined therein being used herein as therein defined), among Pinstripes, Inc., a Delaware corporation (the “Borrower”), Banyan Acquisition Corporation (“Holdings”), the Lenders from time to time party thereto, and Oaktree Fund Administration, LLC as Agent for the Lenders.

The Borrower requests:

A Borrowing of a [Tranche 1][Tranche 2] Term Loan:

1. On_________________(a Business Day) (the “Funding Date”).

2. In the amount of $_________________.

3. Please remit funds to: [INSERT ACCOUNT DETAILS / in accordance with letter of direction to be delivered by the Borrower to the Agent].

In connection with any Borrowing requested hereunder, the Borrower hereby represents and warrants that all applicable conditions specified in Section 3.1[(a)][(b)] [and] [(c)] of the Loan Agreement have been or will be satisfied on and as of Funding Date.

PINSTRIPES, INC.

By

Name

Title

1

Exhibit B

EXHIBIT C-1

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE 

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of December 29, 2023 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Pinstripes, Inc., a Delaware corporation, Banyan Acquisition Corporation, a Delaware corporation, Oaktree Fund Administration, LLC, as Agent for the Lenders from time to time party thereto, and the Lenders party thereto from time to time.

Pursuant to the provisions of Section 1.9 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]

By:

Name:

Title:

Date: ________ __, 20[●]

2

EXHIBIT C-2

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE 

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of December 29, 2023 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Pinstripes, Inc., a Delaware corporation, Banyan Acquisition Corporation, a Delaware corporation, Oaktree Fund Administration, LLC, as Agent for the Lenders from time to time party thereto, and the Lenders party thereto from time to time.

Pursuant to the provisions of Section 1.9 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform such Lender, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]

By:

Name:

Title:

Date: ________ __, 20[●]

3

EXHIBIT C-3

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of December 29, 2023 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Pinstripes, Inc., a Delaware corporation, Banyan Acquisition Corporation, a Delaware corporation, Oaktree Fund Administration, LLC, as Agent for the Lenders from time to time party thereto, and the Lenders party thereto from time to time.

Pursuant to the provisions of Section 1.9 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]

By:

Name: 

Title:

Date: ________ __, 20[●]

4

EXHIBIT C-4

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of December 29, 2023 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Pinstripes, Inc., a Delaware corporation, Banyan Acquisition Corporation, a Delaware corporation, Oaktree Fund Administration, LLC, as Agent for the Lenders from time to time party thereto, and the Lenders party thereto from time to time.

Pursuant to the provisions of Section 1.9 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]

By:

Name:

Title:

Date: ________ __, 20[●]

5

EXHIBIT D

FORM OF WARRANT

[See attached]

6

EX-10.2

Exhibit 10.2

CONTINUING GUARANTY AGREEMENT

THIS CONTINUING GUARANTY AGREEMENT (this “Guaranty”) is made December 29, 2023, by each of the Persons listed on the signature pages hereto (each a “Guarantor” and, together with any other entity that becomes a guarantor hereunder, collectively, the “Guarantors”), in favor of GCCP II AGENT, LLC, as Agent for the Lenders (in such capacity, the “Agent”).

Recitals:

Agent, the Lenders from time to time party thereto, and Pinstripes, Inc., a Delaware corporation (the “Borrower”) are parties to a certain Term Loan and Security Agreement, dated as April 19, 2023 (together with all schedules and exhibits thereto and all amendments, restatements, modifications or supplements with respect thereto prior to the date hereof, the “Loan Agreement”). Pursuant to the Loan Agreement, the Lenders have agreed, subject to all the terms and conditions thereof, to make loans and other extensions of credit to the Borrower.

Borrower, Agent and the Lenders are entering into that certain Amendment No. 2 to Term Loan and Security Agreement, dated as of the date hereof (the "Second Amendment"), which amends the Existing Loan Agreement as requested by Borrower (the Existing Loan Agreement as amended by the Second Amendment, and all amendments, restatements, modifications or supplements with respect thereto after the date hereof, the "Loan Agreement").

A condition to Lenders’ obligation to enter into the Second Amendment is the Guarantors’ execution and delivery to the Agent of this Guaranty.

To induce Agent and the Lenders to enter into the Second Amendment and to continue to make loans or otherwise extend credit or other financial accommodations from time to time to the Borrower, and in recognition of the direct or indirect benefits to be received by each Guarantor from the incurrence of Loans by the Borrower under the Loan Agreement, each Guarantor is willing to execute this Guaranty.

Agreement:

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, Guarantor hereby agrees as follows:

1.            Definitions; Rules of Construction. Capitalized terms used herein, unless otherwise defined, shall have the meanings ascribed to them in the Loan Agreement. As used herein, the words “herein,” “hereof,” “hereunder,” and “hereon” shall have reference to this Guaranty taken as a whole and not to any particular provision hereof; and the word “including” shall mean “including, without limitation.” The phrase “payment in full of the Guaranteed Obligations” shall mean full and final payment of the Guaranteed Obligations (and, in the case of contingent obligations, such as those arising from letters of credit, the cash collateralization of such contingent obligations as required by the Loan Documents) and the termination of all financing commitments under the Loan Agreement.

2.            Guaranty. (a)  Each Guarantor hereby unconditionally and absolutely guarantees to the Agent and the Lenders, the due and punctual payment, performance and discharge (whether upon stated maturity, demand, acceleration or otherwise in accordance with the terms thereof) of (i) all of the Obligations, (ii) all terms, conditions, agreements, representations and warranties at any time made by the Borrower to the Agent and the Lenders pursuant to the Loan Agreement and the other Loan Documents, and (iii) all other debts, obligations and liabilities of the Borrower to the Agent and the Lenders incurred pursuant to the Loan Agreement and the other Loan Documents, whether direct or indirect, absolute or contingent, secured or unsecured, due or to become due, joint or several, primary or secondary, liquidated or unliquidated, now existing or hereafter incurred, created or arising, howsoever evidenced, whether created directly to or acquired by assignment or otherwise by the Agent and the Lenders, and whether the Borrower may be liable individually or jointly with others, and regardless of whether recovery upon any of such other debts, obligations or liabilities becomes barred by any statute of limitations, is void or voidable under any law relating to fraudulent obligations or otherwise or is or becomes invalid or unenforceable for any other reason (the Obligations and all such other debts, liabilities and obligations being jointly referred to as the “Guaranteed Obligations”). Without limiting the generality of the foregoing, the term “Guaranteed Obligations” as used herein shall include all debts, liabilities and obligations incurred by the Borrower to the Agent and the Lenders in any bankruptcy case of the Borrower and any interest, fees or other charges accrued in any such bankruptcy, whether or not any such interest, fees or other charges are recoverable from the Borrower or the Borrower’s estate under 11 U.S.C. § 506.

(b)            Agent shall be under no obligation to marshal any assets in favor of any Guarantor or in payment of any of the Guaranteed Obligations. If and to the extent Agent receives any payment on account of any of the Guaranteed Obligations (whether from the Borrower, any Guarantor, any other guarantor of the Guaranteed Obligations or a third party obligor or from the sale or other disposition of any collateral) and such payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other Person under any bankruptcy act, state or federal law, common law or equitable cause, then the part of the Guaranteed Obligations intended to be satisfied shall be revived and continued in full force and effect as if said payment had not been made. The provisions of this paragraph shall survive the termination of this Guaranty.

(c)            Agent shall have the right to seek recourse against any Guarantor to the full extent provided for herein and against the Borrower to the full extent provided for in any of the Loan Documents. No election to proceed in one form of action or proceeding, or against any Person, or on any obligation, shall constitute a waiver of the Agent’s or any Lender’s right to proceed in any other form of action or proceeding or against any other Person unless Agent has expressly waived such right in writing. Specifically, but without limiting the generality of the foregoing, no action or proceeding by Agent against the Borrower under the Loan Documents or any other instrument or agreement evidencing or securing Guaranteed Obligations shall serve to diminish the liability of any Guarantor for the balance of the Guaranteed Obligations.

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(d)            Each Guarantor, and by its acceptance of this Guaranty, the Agent and each Lender, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Agent, the Lenders and each Guarantor hereby irrevocably agree that the Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance. For purposes hereof, “Bankruptcy Law” means any proceeding of the type referred to in Section 7.1(d) of the Loan Agreement or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.

(e)            Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to the Agent or any Lender under this Guaranty or any other guaranty, such Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Agent and the Lenders under or in respect of the Loan Documents.

3.            Nature of Guaranty. This Guaranty is a primary, immediate and original obligation of each Guarantor; is an absolute, unconditional, continuing and irrevocable guaranty of payment of the Guaranteed Obligations and not of collectability only; is not contingent upon the exercise or enforcement by Agent of whatever rights or remedies Agent may have against the Borrower or others, or the enforcement of any Lien or realization upon any collateral or other security that Agent may at any time possess; and shall remain in full force and effect without regard to future changes in conditions, including change of law or any invalidity or unenforceability of any of the Guaranteed Obligations or agreements evidencing same. This Guaranty shall be in addition to any other present or future guaranty or other security for any of the Guaranteed Obligations, shall not be prejudiced or unenforceable by the invalidity of any such other guaranty or security, and is not conditioned upon or subject to the execution by any other Person of this Guaranty or any other guaranty or suretyship agreement.

4.            Payment of Guaranteed Obligations. (a)  If any Guarantor should dissolve or become insolvent (within the meaning of the UCC), or if a petition for an order for relief with respect to any Guarantor should be filed by or against such Guarantor under any chapter of the Bankruptcy Code, or if a receiver, trustee or conservator should be appointed for any Guarantor or any of any Guarantor’s property, or if an Event of Default shall occur and be continuing, then, in any such event and whether or not any of the Guaranteed Obligations is then due and payable or the maturity thereof has been accelerated or demand for payment thereof has been made, Agent may, without notice to any Guarantor, make the Guaranteed Obligations immediately due and payable hereunder as to such Guarantor and Agent shall be entitled to enforce the obligations of such Guarantor hereunder as if the Guaranteed Obligations were then due and payable in full. If any of the Guaranteed Obligations are collected by or through an attorney at law, each Guarantor shall pay to Agent reasonable attorneys’ fees and court costs.

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(b)            Each Guarantor’s payment of the Guaranteed Obligations shall be without setoff or other deductions, irrespective of any counterclaim, defense or other claim that such Guarantor may have or assert at any time. If for any reason the Borrower has no legal existence or is under no legal obligation to discharge any of the Guaranteed Obligations, or if any of the Guaranteed Obligations become unrecoverable from the Borrower by reason of the Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any other reason, this Guaranty shall nevertheless be binding on each Guarantor to the same extent as if such Guarantor had at all times been the principal obligor on all such Guaranteed Obligations. If acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of debt or for any other reason, all such amounts otherwise subject to acceleration under the terms of any Loan Documents or other instrument or agreement evidencing or securing the payment of the Guaranteed Obligations shall be immediately due and payable by Guarantor.

(c)            The books and records of Agent showing the account between Agent and the Borrower shall be admissible in evidence in any action or proceeding against or involving any Guarantor as prima facie proof of the items therein set forth, and the monthly statements of Agent rendered to the Borrower, to the extent no written objection thereto is made within 30 days from the date of sending thereof to the Borrower, shall be deemed conclusively correct and shall constitute an account stated between Agent and the Borrower and shall be binding on each Guarantor.

5.            Specific Waivers of each Guarantor. To the fullest extent permitted by applicable law:

(a)            Each Guarantor waives any right (except as shall be required by applicable statute and cannot be waived) to require Agent or any Lender to (i) proceed against any other Person, (ii) proceed against or exhaust any security held from any other Person, (iii) protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Person, or any collateral, or (iv) pursue any other remedy in the Agent’s or any Lender’s power whatsoever. Each Guarantor waives any defense based on or arising out of any defense of any other Person, other than payment of the Guaranteed Obligations to the extent of such payment, based on or arising out of the disability of any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Person other than payment of the Obligations to the extent of such payment. Agent may, at the election of the Lenders, foreclose upon any collateral held by Agent by one or more judicial or nonjudicial sales or other dispositions, whether or not every aspect of any such sale is commercially reasonable or otherwise fails to comply with applicable law or may exercise any other right or remedy Agent or any Lender may have against any other Person, or any security, in each case, without affecting or impairing in any way the liability of each Guarantor hereunder except to the extent the Guaranteed Obligations have been paid.

(b)            Each Guarantor waives all presentments, demands for performance, protests and notices, including notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, and notices of the existence, creation, or incurring of new or additional Obligations or other financial accommodations. Each Guarantor waives notice of any Default or Event of Default under any of the Loan Documents. Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope, and extent of the risks which such Guarantor assumes and incurs hereunder, and agrees that neither Agent nor any other Lender shall have any duty to advise such Guarantor of information known to them regarding such circumstances or risks.

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(c)            Each Guarantor hereby waives: (A) any right to assert against the Agent or any Lender any defense (legal or equitable), set-off, counterclaim, or claim which such Guarantor may now or at any time hereafter have against the Borrower or any other party liable to the Agent or any Lender (other than payment in full of the Guaranteed Obligations); (B) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Guaranteed Obligations or any security therefor; (C) any right or defense arising by reason of any claim or defense based upon an election of remedies by the Agent or any Lender including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against the Borrower or other guarantors or sureties; and (D) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement thereof, and any act (including any payment by such Guarantor) which shall defer or delay the operation of any statute of limitations applicable to the Guaranteed Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to such Guarantor’s liability hereunder.

(d)            Each Guarantor will not exercise any rights that it may now or hereafter acquire against the Borrower or any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Guaranty, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Agent or any Lender against the Borrower or any other guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from the Borrower any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence, such amount shall be held in trust for the benefit of Agent and the Lenders, and shall forthwith be paid to Agent to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Agreement, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Guaranty, no Guarantor may exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse against or with respect to any property or asset of, the Borrower (the “Foreclosed Grantor”), including after payment in full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Equity Interests of such Foreclosed Grantor whether pursuant to this Guaranty or otherwise.

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6.            Guarantors’ Consents and Acknowledgments. (a)  Each Guarantor consents and agrees that, without notice to or by such Guarantor and without reducing, releasing, diminishing, impairing or otherwise affecting the liability or obligations of such Guarantor hereunder, Agent may (with or without consideration) compromise or settle any of the Guaranteed Obligations; accelerate the time for payment of any of the Guaranteed Obligations; extend the period of duration or the time for the payment, discharge or performance of any of the Guaranteed Obligations; increase the amount of the Guaranteed Obligations; refuse to enforce, or release all or any Persons liable for the payment of, any of the Guaranteed Obligations; increase, decrease or otherwise alter the rate of interest payable with respect to the principal amount of any of the Guaranteed Obligations or grant other indulgences to the Borrower in respect thereof; amend, modify, terminate, release, or waive any Loan Documents or any other documents or agreements evidencing, securing or otherwise relating to the Guaranteed Obligations (other than this Guaranty); release, surrender, exchange, modify or impair, or consent to the sale, transfer or other disposition of, any collateral or other property at any time securing (directly or indirectly) any of the Guaranteed Obligations or on which Agent may at any time have a Lien; fail or refuse to perfect (or to continue the perfection of) any Lien granted or conveyed to Agent with respect to any collateral, or to preserve rights to any collateral, or to exercise care with respect to any collateral in Agent’s possession; extend the time of payment of any collateral consisting of accounts, notes, chattel paper or other rights to the payment of money; refuse to enforce or forbear from enforcing its rights or remedies with respect to any collateral or any Person liable for any of the Guaranteed Obligations or make any compromise or settlement or agreement therefor in respect of any collateral or with any party to the Guaranteed Obligations; or release or substitute any one or more of the endorsers or guarantors of the Guaranteed Obligations, whether parties to this Guaranty or not.

(b)            Each Guarantor is fully aware of the financial condition of the Borrower and delivers this Guaranty based solely upon such Guarantor’s own independent investigation and in no part upon any representation or statement of Agent with respect thereto. Each Guarantor is in a position to and hereby assumes full responsibility for obtaining any additional information concerning the Borrower’s financial condition as such Guarantor may deem material to such Guarantor’s obligations hereunder and such Guarantor is not relying upon, nor expecting Agent to furnish such Guarantor any information in Agent’s possession concerning, the Borrower’s financial condition. If Agent, in its sole discretion, undertakes at any time or from time to time to provide any information to any Guarantor regarding the Borrower, any of the collateral or any transaction or occurrence in respect of any of the Loan Documents, Agent shall be under no obligation to update any such information or to provide any such information to such Guarantor on any subsequent occasion. Each Guarantor hereby knowingly accepts the full range of risks encompassed within a contract of “Guaranty,” which risks include, without limitation, the possibility that the Borrower will contract additional Guaranteed Obligations for which such Guarantor may be liable hereunder after the Borrower’s financial condition or ability to pay its lawful debts when they fall due has deteriorated.

(c)            Each Guarantor makes each of the representations and warranties made by the Borrower in Section 5 of the Loan Agreement, to the extent such representation or warranty is applicable to such Guarantor. Such representations and warranties are incorporated herein by this reference as if fully set forth herein. Each Guarantor covenants that it will and, if necessary, will cause or enable the Borrower to, fully comply with each of the covenants and other agreements set forth in the Loan Agreement. Each Guarantor hereby agrees to perform all obligations of such Guarantor that are set forth in the Loan Agreement.

7.            Continuing Nature of Guaranty. (a) This Guaranty shall continue in full force and effect until payment in full of the Guaranteed Obligations. Each Guarantor acknowledges that there may be future advances by Agent to the Borrower and that the number and amount of the Guaranteed Obligations are unlimited and may fluctuate from time to time hereafter, and this Guaranty shall remain in force at all times hereafter, whether there are any Guaranteed Obligations outstanding from time to time or not.

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(b)            To the fullest extent permitted by applicable law, each Guarantor waives any right that such Guarantor may have to terminate or revoke this Guaranty. If, notwithstanding the foregoing waiver, any Guarantor shall nevertheless have any right under applicable law to terminate or revoke this Guaranty, which right cannot be waived by any Guarantor, such termination or revocation shall not be effective until a written notice of such termination or revocation, specifically referring to this Guaranty and signed by such Guarantor, is actually received by an officer of Agent who is familiar with the Borrower’s account with Agent and this Guaranty; but any such termination or revocation shall not affect the obligation of each Guarantor or such Guarantor’s successors or assigns with respect to any of the Guaranteed Obligations owing to Agent and existing at the time of the receipt by Agent of such revocation or to arise out of or in connection with any transactions theretofore entered into by Agent with or for the account of the Borrower. If the Lenders grant loans or other extensions of credit to or for the benefit of the Borrower or takes other action after the termination or revocation by any Guarantor but prior to Agent’s receipt of such written notice of termination or revocation, then the rights of Agent hereunder with respect thereto shall be the same as if such termination or revocation had not occurred.

8.            [Reserved].

9.            Subordination; Postponement of Subrogation Rights. (a) Any and all present and future debts and obligations of the Borrower to each Guarantor are hereby waived and postponed in favor of and subordinated to the payment in full of the Guaranteed Obligations. If any payment shall be made to any Guarantor on account of any indebtedness owing by the Borrower to such Guarantor during any time that any Guaranteed Obligations are outstanding, such Guarantor shall hold such payment in trust for the benefit of Agent and shall make such payments to Agent to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the discretion of Agent. The provisions of this Guaranty shall be supplemental to and not in derogation of any rights and remedies or the Agent or any Lender or any affiliate of Agent or such Lender under any separate subordination agreement that Agent, such Lender or such affiliate may at any time or from time to time enter into with any Guarantor.

(b)            Until the payment in full of the Guaranteed Obligations, no Guarantor shall have any claim, right or remedy (whether or not arising in equity, by contract or applicable law) against the Borrower or any other Person by reason of such Guarantor’s payment or other performance hereunder. Without limiting the generality of the foregoing, each Guarantor hereby subordinates to the payment in full of the Guaranteed Obligations any and all legal or equitable rights or claims that such Guarantor may have to reimbursement, subrogation, indemnity and exoneration and agrees that until the payment in full of the Guaranteed Obligations, such Guarantor shall have no recourse to any assets or property of the Borrower (including any collateral) and no right of recourse against or contribution from any other Person in any way directly or contingently liable for any of the Guaranteed Obligations, whether any of such rights arise under contract, in equity or under applicable law.

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10.            Other Guaranties. If on the date of any Guarantor’s execution of this Guaranty or at any time thereafter Agent receives any other guaranty from such Guarantor or from any other Person of any of the Guaranteed Obligations, the execution and delivery to Agent and Agent’s acceptance of any such additional guaranty shall not be deemed in lieu of or to supersede, terminate or diminish this Guaranty, but shall be construed as an additional or supplementary guaranty unless otherwise expressly provided in such additional or supplementary guaranty; and if, prior to the date hereof, any Guarantor or any other Person has given to Agent a previous guaranty or guaranties, this Guaranty shall be construed to be an additional or supplementary guaranty and not to be in lieu thereof or to supersede, terminate or diminish such previous guaranty or guaranties.

11.            Application of Payments. Unless otherwise required by law or a specific agreement to the contrary, all payments received by Agent from the Borrower, any Guarantor or any other Person with respect to the Guaranteed Obligations or from proceeds of the collateral may be applied (or reversed and reapplied) by Agent to the Guaranteed Obligations in such manner and order as Agent desires, in its sole discretion, without affecting in any manner any Guarantor’s liability hereunder.

12.            Limitation on Guaranty. To the extent any performance of this Guaranty would violate any applicable usury statute or other applicable law, the obligation to be fulfilled shall be reduced to the limit legally permitted, so that this Guaranty shall not require any performance in excess of the limit legally permitted, but such obligation shall be fulfilled to the limit of legal validity. Nothing in this Guaranty shall be construed to authorize Agent to collect from any Guarantor any interest that has not yet accrued, is unearned or subject to rebate or is otherwise not entitled to be collected by Agent under applicable law. The provisions of this paragraph shall control every other provision of this Guaranty.

13.            Financial Information; Credit Reports. Each Guarantor warrants that such Guarantor is meeting such Guarantor’s current liabilities as they mature; there are not now pending against such Guarantor any material court or administrative proceedings nor has there been filed (or threatened to be filed) against such Guarantor any undischarged judgments or federal or state tax liens; and such Guarantor is not in default or claimed default under any agreement to which such Guarantor is a party for borrowed money. Each Guarantor shall promptly notify Agent in writing if any of the foregoing warranties cease to be correct and accurate after the date hereof. Each Guarantor shall provide to Agent such information regarding such Guarantor’s assets, liabilities and financial condition generally as Agent may from time to time request (including, without limitation, if Agent elects to assign or sell participations in any of the Guaranteed Obligations or Loan Documents, including this Guaranty), including copies of such Guarantor’s tax returns and financial statements signed by such Guarantor. Lender may forward to each assignee or participant and each prospective assignee or participant all documents and information relating to this Guaranty or to any Guarantor, whether furnished by the Borrower, such Guarantor or any other Person.

14.            Insurance. Each Guarantor shall maintain with its current insurers or with other financially sound and reputable insurers, insurance with respect to its properties and business against such casualties and contingencies of such type (including product liability, workers’ compensation, larceny, embezzlement or other criminal misappropriation insurance) and in such amounts and with such coverages, limits and deductibles as is customary in the business of such Guarantor.

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15.            Notices. All notices, demands, requests, consents, approvals and other communications required or permitted hereunder must be in writing and shall be effective upon receipt by the noticed party. Acceptable methods for giving notices hereunder shall include first-class U.S. mail, facsimile transmission and commercial courier service. Regardless of the manner in which notice is provided, notices may be sent to the addresses for Agent and each Guarantor as set forth above or to such other address as either party may give to the other for such purpose in accordance with this Section.

16.            Taxes. Any payments made by Guarantor to Agent or the Lenders shall be free and clear of, and without deduction or withholding for, any taxes; provided, however, that if Guarantor shall be required by law to deduct or withhold any taxes from any sums payable to the Agent or the Lenders, then Guarantor shall (i) make such deductions or withholdings and pay such amounts to the relevant authority in accordance with applicable law, (ii) pay to the Agent or the Lenders the sum that would have been payable had such deduction or withholding not been made, and (iii) at the time such payment is made, pay to the Agent or the Lenders all additional amounts as specified by the Agent or the Lenders to preserve the after-tax yield the Agent or the Lenders would have received if such tax had not been imposed. This provision does not apply to income taxes payable by the Agent or the Lenders on its taxable income.

17.            Successors and Assigns. All the rights, benefits and privileges of Agent under this Guaranty shall vest in and be enforceable by Agent and its successors and assigns. Agent may, without notice to any Guarantor, assign this Guaranty, in whole or in part. This Guaranty shall be binding upon each Guarantor and each Guarantor’s successors and assigns.

18.            Miscellaneous. This Guaranty expresses the entire understanding of the parties with respect to the subject matter hereof; may not be changed orally, and no obligation of any Guarantor can be released or waived by Agent or any officer or agent of Agent, except by a writing signed by a duly authorized officer of Agent; is intended to take effect as a sealed instrument under the laws of the State of Illinois; and may be executed in multiple counterparts, all of which taken together shall constitute one and the same Guaranty and the signature page of any counterpart may be removed therefrom and attached to any other counterpart. If any part of this Guaranty is determined to be invalid, the remaining provisions of this Guaranty shall be unaffected and shall remain in full force and effect. No delay or omission on Agent’s part to exercise any right or power arising hereunder will impair any such right or power or be considered a waiver of any such right or power, nor will Lender’s action or inaction impair any such right or power, and all of Agent’s rights and remedies hereunder are cumulative and not exclusive of any other rights or remedies that Lender may have under other agreements, at law or in equity. Time is of the essence of this Guaranty and of each provision hereof. The section headings in this Guaranty are inserted for convenience of reference only and shall in no way alter, modify or define, or be used in construing, the text of this Guaranty.

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19.            CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION.

(a)            THIS GUARANTY SHALL BE DEEMED TO HAVE BEEN MADE IN ILLINOIS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS. EACH GUARANTOR HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL COURT SITTING IN OR WITH DIRECT OR INDIRECT JURISDICTION OVER THE NORTHERN DISTRICT OF ILLINOIS OR ANY STATE OR SUPERIOR COURT SITTING IN COOK COUNTY, ILLINOIS, IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS; AND EACH GUARANTOR IRREVOCABLY AGREES THAT ALL CLAIMS AND DEMANDS IN RESPECT OF ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. THE AGENT AND EACH LENDER RESERVES THE RIGHT TO BRING PROCEEDINGS AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO PRECLUDE THE ENFORCEMENT BY THE AGENT OR SUCH LENDER OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS GUARANTY TO ENFORCE SAME IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.

(b)            TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY KNOWINGLY, INTENTIONALLY AND INTELLIGENTLY WAIVES (WITH THE BENEFIT OF ADVICE OF LEGAL COUNSEL OF ITS OWN CHOOSING): (I) THE RIGHT TO TRIAL BY JURY (WHICH THE AGENT AND EACH LENDER HEREBY ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF, RELATED TO OR BASED IN ANY WAY UPON THIS GUARANTY, ANY OF THE LOAN DOCUMENTS, THE OBLIGATIONS OR THE COLLATERAL; (II) ANY CLAIM AGAINST THE AGENT OR ANY LENDER ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF THIS GUARANTY OR ANY OF THE LOAN DOCUMENTS, ANY TRANSACTION THEREUNDER, THE ENFORCEMENT OF ANY REMEDIES BY THE AGENT OR ANY LENDER OR THE USE OF ANY PROCEEDS OF ANY LOANS; AND (III) NOTICE OF ACCEPTANCE OF THIS GUARANTY BY THE AGENT AND THE LENDERS.

(c)            NO CLAIM MAY BE MADE BY ANY GUARANTOR AGAINST AGENT, ANY OTHER LENDER, OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, COUNSEL, REPRESENTATIVE, AGENT, OR ATTORNEY-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY, OR ANY ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION HEREWITH, AND EACH GUARANTOR HEREBY WAIVES, RELEASES, AND AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be signed, sealed and delivered by its duly authorized officers, on the day and year first written above.

PINSTRIPES HOLDINGS, INC. as a Guarantor
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer

[Signature Page to Continuing Guaranty Agreement]

Accepted and Agreed:
GCCP II AGENT, LLC, as Agent
By:	/s/ Brian Boorstein
Name:	Brian Boorstein
Title:	Member

[Signature Page to Continuing Guaranty Agreement]

EX-10.3

Exhibit 10.3

Execution Version

Notwithstanding anything herein to the contrary, the lien and security interest granted to the Agent pursuant to or in connection with this Security Agreement, the terms of this Security Agreement and the exercise of any right or remedy by the Agent hereunder are subject to (i) the provisions of the Intercreditor Agreement dated as of December 29, 2023 (as amended, restated, modified or supplemented from time to time, the “Silverview Intercreditor Agreement”), among Silverview Credit Partners LP, as Agent for the First Priority Secured Parties (as defined therein), Oaktree Fund Administration, LLC, as Agent for the Second Priority Secured Parties (as defined therein) and (ii) the provisions of the Intercreditor Agreement dated as of December 29, 2023 (as amended, restated, modified or supplemented from time to time, the “Granite Creek Intercreditor Agreement”), among GCCP II Agent, LLC, as Agent for the First Priority Secured Parties (as defined therein), Oaktree Fund Administration, LLC, as Agent for the Second Priority Secured Parties (as defined therein) (the Granite Creek Intercreditor Agreement, and together with the Silverview Intercreditor Agreement, collectively, “Closing Date Intercreditor Agreements”). In the event of any conflict between the terms of the Closing Date Intercreditor Agreements and this Security Agreement, the terms of the Closing Date Intercreditor Agreements shall control.

PLEDGE AND SECURITY AGREEMENT

THIS PLEDGE AND SECURITY AGREEMENT (this “Security Agreement”) is entered into as of December 29, 2023, among Pinstripes, Inc., a Delaware corporation (the “Borrower”), Banyan Acquisition Corporation, a Delaware corporation, upon consummation of the Business Combination and concurrent with the Business Combination shall amend its name to be Pinstripes Holdings, Inc. as holdings (“Holdings”), each Subsidiary of the Borrower listed on the signature pages hereto and each Subsidiary of the Borrower that, after the date hereof, executes a supplement hereto (such Subsidiaries, together with the Borrower and Holdings, each a “Grantor” and, collectively, the “Grantors”), and Oaktree Fund Administration, LLC, in its capacity as agent (together with any successor agent and any Supplemental Collateral Agent, collectively and individually, the “Agent”) for the Lenders (as defined in the Loan Agreement referred to below).

PRELIMINARY STATEMENT

The Borrower, Holdings, the Agent and the Lenders are entering into a Loan Agreement dated as of the date hereof (as it may be amended, restated, amended and restated, supplemented or modified from time to time, the “Loan Agreement”). Each Grantor is entering into this Security Agreement in order to induce the Lenders to enter into and extend credit to the Borrower under the Loan Agreement and to secure the Obligations.

ACCORDINGLY, the Grantors and the Agent, on behalf of the Lenders, hereby agree as follows:

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ARTICLEI.
DEFINITIONS

1.1            Terms Defined in Loan Agreement. All capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Loan Agreement.

1.2            Terms Defined in UCC. Terms defined in the UCC which are not otherwise defined in this Security Agreement are used herein as defined in the UCC.

1.3            Definitions of Certain Terms Used Herein. As used in this Security Agreement, in addition to the terms defined in the Preliminary Statement, the following terms shall have the following meanings:

“Accounts” shall have the meaning set forth in Article 9 of the UCC.

“Article” means a numbered article of this Security Agreement, unless another document is specifically referenced.

“Assigned Contracts” means, collectively, all of the Grantors’ rights and remedies under, and all moneys and claims for money due or to become due to any Grantor under all contracts and other agreements between any Grantor and any party other than the Agent or any Lender and all amendments, supplements, extensions, and renewals thereof including all rights and claims of the Grantors now or hereafter existing: (a) under any insurance, indemnities, warranties, and guarantees provided for or arising out of or in connection with any of the foregoing agreements;

for any damages arising out of or for breach or default under or in connection with any of the foregoing contracts; (c) to all other amounts from time to time paid or payable under or in connection with any of the foregoing agreements; or (d) to exercise or enforce any and all covenants, remedies, powers and privileges thereunder.

“Chattel Paper” shall have the meaning set forth in Article 9 of the UCC.

“Closing Date” means the date of the Loan Agreement.

“Collateral” shall have the meaning set forth in Article II of this Security Agreement.

“Collateral Access Agreement” means any landlord waiver or other agreement, in form and substance reasonably satisfactory to the Agent, between, inter alios, the Agent and any landlord of any Grantor for any real property where any Collateral is located, as such landlord waiver or other agreement may be amended, restated, or otherwise modified from time to time.

“Collateral Report” means any certificate (including any Perfection Certificate), report or other document delivered by any Grantor to the Agent or any Lender with respect to the Collateral pursuant to any Loan Document.

“Commercial Tort Claims” means “commercial tort claims” as set forth in Article 9 of the UCC and shall include, without limitation, the existing commercial tort claims of each Grantor set forth in Exhibit C attached hereto.

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“Control” shall have the meaning set forth in Article 8 or, if applicable, in Section 9-104, 9-105, 9-106 or 9-107 of Article 9 of the UCC.

“Copyrights” means, with respect to any Person, all of such Person’s right, title, and interest in and to the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright, copyright registrations, and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past or future infringements for any of the foregoing; (d) the right to sue for past, present, and future infringements of any of the foregoing; and (e) all rights corresponding to any of the foregoing throughout the world.

“Deposit Accounts” shall have the meaning set forth in Article 9 of the UCC.

“Designs” means, with respect to any Person, all such Person’s right, title and interest in and to the following: (a) all industrial designs and intangibles of like nature (whether registered or unregistered), all registrations and recordings thereof, and all applications in connection therewith, and (b) all reissues, extensions or renewals thereof.

“Documents” shall have the meaning set forth in Article 9 of the UCC.

“Equipment” shall have the meaning set forth in Article 9 of the UCC.

“Excluded Account” means (i) any Deposit Account which is used solely and exclusively (A) to fund payroll, 401(k) and other employee benefit plans, (B) as a withholding tax account, (C) as a trust or fiduciary account exclusively holding funds for the benefit of third parties in an amount equal to the amount required to be paid to such third party, and (ii) any Deposit Account used solely as a zero balance account.

“Excluded Collateral” means (a) any Grantor’s rights or interests in or under, any lease, license, contract or agreement to which such Grantor is a party to the extent, but only to the extent that such a grant would, under the terms of such lease, license, contract or agreement constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Grantor therein or (ii) a breach or termination pursuant to the terms of, or a default under such lease, license, contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including any bankruptcy or insolvency laws) or principles of equity), provided, that (x) immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Grantor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect and (y) to the extent that any such lease, license, contract or agreement would otherwise constitute Collateral (but for the provisions of this paragraph), all proceeds resulting from the sale or disposition by any Grantor of any rights of such Grantor under such lease, license, contract or agreement shall constitute Collateral; (b) any Excluded Account; (c) any application for registration for a Trademark filed with the United States Patent and Trademark Office on an intent-to-use basis until such time (if any) as a statement of use or amendment to allege use is filed, at which time such Trademark shall automatically become part of the Collateral and subject to the security interest pledged; and (d) the “Collateral” (as defined in that certain FF&E Security Agreement, dated as of August 18, 2014 (as amended by that certain Second Amendment to Note and Security Agreements, dated on or about May 31, 2021), by and between the Borrower and AH-River East LLC, an Illinois limited liability company, as in effect on the date hereof, which security agreement was entered into in connection with that certain Retail Space Lease, dated as of November 22, 2013 (as amended after the date thereof), by and between the Borrower and AH-River East LLC, an Illinois limited liability company) (the “AH-River East Agreements”); provided, that immediately upon the ineffectiveness, lapse or termination of the AH-River East Agreements, Collateral shall include, and such Grantor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect; provided, further that Excluded Collateral shall not include any proceeds, substitutions or replacements of any Excluded Assets (unless such proceeds, substitutions or replacements would otherwise independently constitute Excluded Collateral); provided that Excluded Collateral shall not include any proceeds, substitutions or replacements of any Excluded Assets (unless such proceeds, substitutions or replacements would otherwise independently constitute Excluded Collateral).

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“Exhibit” refers to a specific exhibit to this Security Agreement, unless another document is specifically referenced.

“Fixtures” shall have the meaning set forth in Article 9 of the UCC.

“General Intangibles” shall have the meaning set forth in Article 9 of the UCC.

“Goods” shall have the meaning set forth in Article 9 of the UCC.

“Instruments” shall have the meaning set forth in Article 9 of the UCC.

“Inventory” shall have the meaning set forth in Article 9 of the UCC.

“Investment Property” shall have the meaning set forth in Article 9 of the UCC.

“Lenders” means the lenders party to the Loan Agreement and their successors and assigns.

“Letter-of-Credit Rights” shall have the meaning set forth in Article 9 of the UCC.

“Licenses” means, with respect to any Person, all of such Person’s right, title, and interest in and to (a) any and all licensing agreements or similar arrangements in and to its Patents, Designs, Copyrights, or Trademarks, (b) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future breaches thereof, and (c) all rights to sue for past, present, and future breaches thereof.

“Patents” means, with respect to any Person, all of such Person’s right, title, and interest in and to: (a) any and all patents and patent applications; (b) all inventions and improvements described and claimed therein; (c) all reissues, divisions, continuations, renewals, extensions, and continuations-in-part thereof; (d) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future infringements thereof; (e) all rights to sue for past, present, and future infringements thereof; and (f) all rights corresponding to any of the foregoing throughout the world.

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“Pledged Collateral” means all Instruments, Securities and other Investment Property of the Grantors, whether or not physically delivered to the Agent pursuant to this Security Agreement.

“Receivables” means, with respect to any Grantor, all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered, including, without limitation, all such rights constituting or evidenced by an Account, Chattel Paper, Document, Investment Property, Instrument, or any other right or claim to receive money which is a General Intangible or which is otherwise included as Collateral.

“Section” means a numbered section of this Security Agreement, unless another document is specifically referenced.

“Secured Parties” means, collectively, the Agent and the Lenders.

“Security” has the meaning set forth in Article 8 of the UCC.

“Securities Account” has the meaning set forth in Article 8 of the UCC.

“Stock Rights” means all dividends, instruments or other distributions and any other right or property which the Grantors shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any Equity Interest constituting Collateral, any right to receive an Equity Interest and any right to receive earnings, in which the Grantors now have or hereafter acquire any right, issued by an issuer of such Equity Interest.

“Supporting Obligations” shall have the meaning set forth in Article 9 of the UCC.

“Trademarks” means, with respect to any Person, all of such Person’s right, title, and interest in and to the following: (a) all trademarks (including service marks), trade names, trade dress, and trade styles and the registrations and applications for registration thereof and the goodwill of the business symbolized by the foregoing; (b) all licenses of the foregoing, whether as licensee or licensor; (c) all renewals of the foregoing; (d) all income, royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims, and payments for past and future infringements thereof; (e) all rights to sue for past, present, and future infringements of the foregoing, including the right to settle suits involving claims and demands for royalties owing; and (f) all rights corresponding to any of the foregoing throughout the world.

“UCC” means the Uniform Commercial Code, as in effect from time to time, of the State of New York or of any other state the laws of which are required as a result thereof to be applied in connection with the attachment, perfection or priority of, or remedies with respect to, Agent’s or any Lender’s Lien on any Collateral.

“Vehicles” means all vehicles covered by a certificate of title law of any state.

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The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.

ARTICLEII.
GRANT OF SECURITY INTEREST

To secure the prompt and complete payment and performance of the Obligations, each Grantor (subject to the proviso below with respect to Holdings) hereby pledges, assigns and grants to the Agent, on behalf of and for the ratable benefit of the Lenders, a security interest in all of its right, title and interest in, to and under all personal property and other assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of such Grantor (including under any trade name or derivations thereof), and whether owned or consigned by or to, or leased from or to, such Grantor, as applicable, and regardless of where located (all of which, other than the Excluded Collateral (as defined below) will be collectively referred to as the “Collateral”), including, without limitation:

(i)            all Accounts;

(ii)           all Chattel Paper (whether tangible or electronic);

(iii)          all Copyrights, Designs, Patents and Trademarks;

(iv)          all Documents;

(v)           all Equipment;

(vi)          all Fixtures;

(vii)         all General Intangibles;

(viii)        all Goods;

(ix)           all Instruments;

(x)            all Inventory;

(xi)           all Investment Property;

(xii)            all cash or cash equivalents;

(xiii)            all letters of credit, Letter-of-Credit Rights and Supporting Obligations;

(xiv)            all Deposit Accounts and Securities Accounts;

(xv)            all Commercial Tort Claims;

(xvi)            all Assigned Contracts; and

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(xvii)            all accessions to, substitutions for and replacements, proceeds (including Stock Rights), insurance proceeds and products of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing;

provided, that, notwithstanding the foregoing, “Collateral” with respect to Holdings, shall be limited to (i) the Equity Interests of the Borrower held by Holdings and the certificates representing such Equity Interest and any interest of Holdings in the entries on the books of the Borrower or any financial intermediary pertaining to the Equity Interests and (ii) all dividends, cash, warrants, rights, instruments and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Equity Interests.

ARTICLEIII.
REPRESENTATIONS AND WARRANTIES

As of any date on which all of the representations and warranties set forth in the Loan Agreement are required to be made by the Borrower, each Grantor represents and warrants to the Agent and the Lenders, that:

3.1            Title, Perfection and Priority. Such Grantor has good and valid rights in or the power to transfer the Collateral and title to the Collateral with respect to which it has purported to grant a security interest hereunder, free and clear of all Liens except for Permitted Liens, and has full power and authority to grant to the Agent the security interest in such Collateral pursuant hereto. When financing statements have been duly filed in the appropriate offices against such Grantor in the locations listed on Exhibit G, the Agent will have a fully perfected second priority security interest in that Collateral of the Grantor in which a security interest may be perfected by filing.

3.2            Type and Jurisdiction of Organization, Organizational and Identification Numbers. The type of entity of such Grantor, its state or province of organization, incorporation or amalgamation, the organizational number (if any) issued to it by its state or province of organization, incorporation or amalgamation and its federal employer identification number are set forth on Exhibit A.

3.3            Principal Location. Such Grantor’s mailing address and the location of its place of business (if it has only one) or its chief executive office (if it has more than one place of business), is disclosed in Exhibit A; such Grantor has no other places of business except those set forth in Exhibit A.

3.4            Collateral Locations. All of such Grantor’s locations where Collateral is located are listed on Exhibit A. All of said locations are owned by such Grantor except for locations (i) which are leased by the Grantor as lessee and designated in Part VII(b) of Exhibit A and (ii) at which Inventory is held in a public warehouse or is otherwise held by a bailee or on consignment as designated in Part VII(c) of Exhibit A.

3.5            Deposit Accounts and Securities Account. All of such Grantor’s Deposit Accounts and Securities Accounts are listed on Exhibit B.

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3.6            Exact Names. Such Grantor’s name in which it has executed this Security Agreement is the exact name as it appears in such Grantor’s organizational documents, as amended, as filed with such Grantor’s jurisdiction of organization, incorporation or amalgamation. Such Grantor has not, during the past five years, been known by or used any other corporate or fictitious name, or been a party to any merger or consolidation, amalgamation or been a party to any acquisition.

3.7            Letter-of-Credit Rights and Chattel Paper. Exhibit C lists all Letter-of-Credit Rights and Chattel Paper of such Grantor. The Agent will have a fully perfected second priority security interest in the Collateral listed on Exhibit C.

3.8            Accounts and Chattel Paper.

(a)            The names of the obligors, amounts owing, due dates and other information with respect to its Accounts and Chattel Paper are and will be correctly stated in all records of such Grantor relating thereto and in all invoices and Collateral Reports with respect thereto furnished to the Agent by such Grantor from time to time. As of the time when each Account or each item of Chattel Paper arises, such Grantor shall be deemed to have represented and warranted that such Account or Chattel Paper, as the case may be, and all records relating thereto, are genuine and in all respects what they purport to be.

(b)            With respect to its Accounts, except as disclosed on the most recent Collateral Report, (i) all Accounts represent bona fide sales of Inventory or rendering of services to Account Debtors in the ordinary course of such Grantor’s business and are not evidenced by a judgment, Instrument or Chattel Paper; (ii) there are no setoffs, claims or disputes existing or asserted with respect thereto and such Grantor has not made any agreement with any Account Debtor for any extension of time for the payment thereof, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except any extensions, compromises, settlements, discounts or allowances allowed by such Grantor in the ordinary course of its business and consistent with past practices; (iii) to such Grantor’s knowledge, there are no facts, events or occurrences which impair the validity or enforceability thereof or could reasonably be expected to reduce in any material respect the amount payable thereunder as shown on such Grantor’s books and records and any invoices, statements and Collateral Reports with respect thereto; (iv) such Grantor has not received any notice of proceedings or actions which are threatened or pending against any Account Debtor which might result in any adverse change in such Account Debtor’s financial condition; and (v) such Grantor has no knowledge that any Account Debtor is unable generally to pay its debts as they become due.

(c)            In addition, with respect to all of its Accounts, the amounts shown on all invoices, statements and Collateral Reports with respect thereto are actually and absolutely owing to such Grantor as indicated thereon and are not in any way contingent.

3.9            Inventory. With respect to any of its Inventory, (a) such Inventory (other than Inventory in transit, out for repair or refurbishment or in the possession of an employee of such Grantor in the ordinary course of business) is located at one of such Grantor’s locations set forth on Exhibit A, (b) no Inventory (other than Inventory in transit, out for repair or refurbishment or in the possession of an employee of such Grantor in the ordinary course of business) is now, or shall at any time or times hereafter be stored at any other location except as permitted by Section 4.1(g), (c) such Grantor has good and merchantable title to such Inventory and such Inventory is not subject to any Lien or security interest or document whatsoever except for the Lien granted to the Agent, for the benefit of the Agent and Lenders, and except for Permitted Liens, (d) such Inventory is of good and merchantable quality, free from any defects, (e) such Inventory is not subject to any licensing, patent, royalty, trademark, trade name or copyright agreements with any third parties which would require any consent of any third party upon sale or disposition of that Inventory or the payment of any monies to any third party upon such sale or other disposition, (f) such Inventory has been produced in accordance in all material respects with the Federal Fair Labor Standards Act of 1938, as amended, and all rules, regulations and orders thereunder and (h) the completion of sale or other disposition of such Inventory by the Agent following an Event of Default shall not require the consent of any Person and shall not constitute a breach or default under any contract or agreement to which such Grantor is a party or to which such property is subject.

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3.10            Intellectual Property. Such Grantor does not have any interest in, or title to, any Patent, Trademark or Copyright except as set forth in Exhibit D. This Security Agreement is effective to create a valid and continuing Lien and, upon filing of appropriate financing statements in the offices listed on Exhibit G and this Security Agreement (or an applicable short form intellectual property security agreement) with the United States Copyright Office and the United States Patent and Trademark Office, fully perfected second priority security interests in favor of the Agent on such Grantor’s registered Patents, Designs, Trademarks and Copyrights, such perfected security interests are enforceable as such as against any and all creditors of and purchasers from such Grantor; and all action reasonably necessary or desirable to perfect the Agent’s Lien on such Grantor’s Patents, Designs, Trademarks or Copyrights shall have been duly taken.

3.11            Filing Requirements. None of such Grantor’s Equipment is covered by any certificate of title. None of the Collateral owned by it is of a type for which security interests or liens may be perfected by filing under any federal statute except for Patents, Trademarks and Copyrights held by such Grantor and described in Exhibit D. The legal description, county and street address of each property on which any Fixtures are located is set forth in Exhibit E together with the name and address of the record owner of each such property.

3.12            No Financing Statements, Security Agreements. No financing statement or security agreement describing all or any portion of the Collateral which has not lapsed or been terminated naming such Grantor as debtor has been filed or is of record in any jurisdiction except for financing statements or security agreements naming the Agent on behalf of the Lenders as the secured party.

3.13            Pledged Collateral.

(a)            Exhibit F sets forth a complete and accurate list of all Pledged Collateral owned by such Grantor. Such Grantor is the direct, sole beneficial owner and sole holder of record of the Pledged Collateral listed on Exhibit F as being owned by it, free and clear of any Liens (other than Permitted Liens). Such Grantor further represents and warrants that (i) all Pledged Collateral owned by it constituting an Equity Interest has been (to the extent such concepts are relevant with respect to such Pledged Collateral) duly authorized, validly issued, are fully paid and non-assessable, (ii) with respect to any certificates delivered to the Agent (or the First Priority Representative as defined in the Silverview Intercreditor Agreement) representing an Equity Interest, either such certificates are Securities as defined in Article 8 of the UCC as a result of actions by the issuer or otherwise, or, if such certificates are not Securities, such Grantor has so informed the Agent so that the Agent may take steps to perfect its security interest therein as a General Intangible and (iii) all such Pledged Collateral held by a securities intermediary is covered by a control agreement among such Grantor, the securities intermediary and the Agent pursuant to which the Agent has Control.

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(b)            In addition, (i) to the knowledge of such Grantor, none of the Pledged Collateral owned by it has been issued or transferred in violation of the securities registration, securities disclosure or similar laws of any jurisdiction to which such issuance or transfer may be subject, (ii) there are existing no options, warrants, calls or commitments of any character whatsoever relating to such Pledged Collateral or which obligate the issuer of any Equity Interest included in the Pledged Collateral to issue additional Equity Interests, and (iii) no consent, approval, authorization, or other action by, and no giving of notice, filing with, any governmental authority or any other Person is required for the pledge by such Grantor of such Pledged Collateral pursuant to this Security Agreement or for the execution, delivery and performance of this Security Agreement by such Grantor, or for the exercise by the Agent of the voting or other rights provided for in this Security Agreement or for the remedies in respect of the Pledged Collateral pursuant to this Security Agreement, except as may be required in connection with such disposition by laws affecting the offering and sale of securities generally.

(c)            Except as set forth in Exhibit F, such Grantor owns 100% of the issued and outstanding Equity Interests which constitute Pledged Collateral owned by it.

ARTICLEIV.
COVENANTS

From the date of this Security Agreement, and thereafter until this Security Agreement is terminated, each Grantor agrees that:

4.1            General.

(a)            Collateral Records. Such Grantor will maintain complete and accurate books and records with respect to the Collateral owned by it, and furnish to the Agent, updates with respect to Exhibits A, B, C, D, E, F and G hereto in accordance with Section 4.1(c) and such customary reports generated by the Grantors relating to such Collateral as the Agent shall from time to time reasonably request.

(b)            Authorization to File Financing Statements; Ratification. Such Grantor hereby authorizes the Agent to file, and if requested will deliver to the Agent, all financing statements and other documents and take such other actions as may from time to time reasonably be requested by the Agent in order to maintain a perfected security interest in and, if applicable, Control of, the Collateral owned by such Grantor. Any financing statement filed by the Agent may be filed in any filing office in any UCC jurisdiction or other applicable filing jurisdiction and may (i) indicate such Grantor’s Collateral (1) as all assets of the Grantor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (2) by any other description which reasonably approximates the description contained in this Security Agreement, and (ii) contain any other information required by part 5 of Article 9 of the UCC or other applicable filing jurisdiction for the sufficiency or filing office acceptance of any financing statement or amendment, including (A) whether such Grantor is an organization, the type of organization and any organization identification number issued to such Grantor, and (B) in the case of a financing statement filed as a fixture filing or indicating such Grantor’s Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Such Grantor also agrees to furnish any such information to the Agent promptly upon request. Such Grantor also ratifies its authorization for the Agent to have filed in any UCC jurisdiction or other applicable filing jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof.

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(c)            Further Assurances. Such Grantor will, if so reasonably requested by the Agent, furnish to the Agent, as often as the Agent reasonably requests, statements and schedules generated by the Grantors further identifying and describing in reasonable detail the Collateral owned by it and such other reports and information in connection with its Collateral as the Agent may reasonably request, all in such detail as the Agent may reasonably request. Such Grantor also agrees to take any and all actions necessary to defend title to the Collateral against all persons and to defend the security interest of the Agent in its Collateral and the priority thereof against any Lien not expressly permitted hereunder. For purposes of this Security Agreement, all references to Exhibits A, B, C, D, E, F and G hereto shall be deemed to refer to each such exhibit as updated from time to time pursuant to supplements and amendments delivered by any Grantor to the Agent.

(d)            Disposition of Collateral. Such Grantor will not sell, lease or otherwise dispose of the Collateral owned by it except for dispositions specifically permitted pursuant to Section 6.2 of the Loan Agreement.

(e)            Liens. Such Grantor will not create, incur, or suffer to exist any Lien on the Collateral owned by it except Permitted Liens.

(f)            Other Financing Statements. Such Grantor will not authorize the filing of any financing statement naming it as debtor covering all or any portion of the Collateral owned by it, except as permitted by Section 4.1(e). Such Grantor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement naming the Agent as secured party without the prior written consent of the Agent, subject to such Grantor’s rights under Section 9-509(d)(2) of the UCC.

(g)            Locations. Such Grantor will not (i) maintain any Collateral owned by it at any location other than those locations listed on Exhibit A, (ii) otherwise change, or add to, such locations without (x) providing notice to the Agent of such change or addition as required by the Loan Agreement and (y) obtaining a Collateral Access Agreement for such location to the extent required by this Security Agreement or the Loan Agreement), or (iii) change its principal place of business or chief executive office from the location identified on Exhibit A, other than as permitted by the Loan Agreement.

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(h)            Compliance with Terms. Such Grantor will perform and comply with all obligations in respect of the Collateral owned by it and all agreements to which it is a party or by which it is bound relating to such Collateral, in each case except for any non-compliance which, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect.

4.2            Receivables.

(a)            Certain Agreements on Receivables. Such Grantor will not make or agree to make any discount, credit, rebate or other reduction in the original amount owing on a Receivable or accept in satisfaction of a Receivable less than the original amount thereof, except that, prior to the occurrence of an Event of Default, such Grantor may reduce the amount of Accounts arising from the sale of Inventory in accordance with its present policies and in the ordinary course of business.

(b)            Collection of Receivables. Except as otherwise provided in this Security Agreement (including clause (a) above), such Grantor will collect and enforce, at such Grantor’s sole expense, all amounts due or hereafter due to such Grantor under the Receivables owned by it.

(c)            [Reserved].

(d)            Electronic Chattel Paper. Such Grantor shall take all steps reasonably necessary to grant the Agent Control of all electronic chattel paper in accordance with the UCC and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.

4.3            Inventory and Equipment.

(a)            Maintenance of Goods. Such Grantor will do all things necessary to maintain, preserve, protect and keep its Inventory and the Equipment in good repair and working and saleable condition, except for damaged or defective goods arising in the ordinary course of such Grantor’s business, except for casualty and condemnation and except for ordinary wear and tear in respect of the Equipment.

(b)            Returned Inventory. In the event any Account Debtor returns Inventory to such Grantor when an Event of Default exists, such Grantor, upon the request of the Agent, shall: (i) hold the returned Inventory in trust for the Agent; (ii) segregate all returned Inventory from all of its other property; (iii) dispose of the returned Inventory solely according to the Agent’s written instructions; and (iv) not issue any credits or allowances with respect thereto without the Agent’s prior written consent. All returned Inventory shall be subject to the Agent’s Liens thereon.

(c)            Equipment. Such Grantor shall not permit any Equipment to become a fixture with respect to real property or to become an accession with respect to other personal property with respect to which real or personal property the Agent does not have a Lien. Such Grantor will not, without the Agent’s prior written consent, alter or remove any identifying symbol or number on any of such Grantor’s material Equipment constituting Collateral.

4.4            Delivery of Instruments, Securities, Chattel Paper and Documents. Subject to the final paragraph to Section 5.2, such Grantor will (a) deliver to the Agent immediately upon execution of this Security Agreement the originals of all Chattel Paper, Securities and Instruments constituting Collateral owned by it (if any then exist) duly endorsed to, or accompanied by an instrument of transfer in favor of, the Agent or its nominee or in blank, (b) hold in trust for the Agent upon receipt and immediately thereafter deliver to the Agent any such Chattel Paper, Securities and Instruments constituting Collateral, (c) upon the Agent’s request, deliver to the Agent (and thereafter hold in trust for the Agent upon receipt and immediately deliver to the Agent) any Document evidencing or constituting Collateral and (d) upon the Agent’s request, deliver to the Agent a duly executed amendment to this Security Agreement, in the form of Exhibit H hereto (the “Amendment”), pursuant to which such Grantor will pledge such additional Collateral. Such Grantor hereby authorizes the Agent to attach each Amendment to this Security Agreement and agrees that all additional Collateral owned by it set forth in such Amendments shall be considered to be part of the Collateral.

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4.5            Uncertificated Pledged Collateral. Such Grantor will permit and authorize the Agent as its attorney-in-fact from time to time to cause the appropriate issuers (and, if held with a securities intermediary, such securities intermediary) of uncertificated securities or other types of Pledged Collateral owned by it not represented by certificates to mark their books and records with the numbers and face amounts of all such uncertificated securities or other types of Pledged Collateral not represented by certificates and all rollovers and replacements therefor to reflect the Lien of the Agent granted pursuant to this Security Agreement. With respect to any Pledged Collateral owned by it, such Grantor will take any actions reasonably necessary to cause (a) the issuers of uncertificated securities which are Pledged Collateral and (b) any securities intermediary which is the holder of any such Pledged Collateral, to cause the Agent to have and retain Control over such Pledged Collateral. Without limiting the foregoing, such Grantor will, with respect to any such Pledged Collateral held with a securities intermediary, cause such securities intermediary to enter into a control agreement with the Agent, in form and substance reasonably satisfactory to the Agent, giving the Agent Control.

4.6            Pledged Collateral.

(a)            Changes in Capital Structure of Issuers. Such Grantor will not (i) permit or suffer any issuer of an Equity Interest in any Subsidiary of the Borrower constituting Pledged Collateral owned by it to dissolve, merge, liquidate, retire any of its Equity Interests or other Instruments or Securities evidencing ownership, reduce its capital, sell or encumber all or substantially all of its assets (except for Permitted Liens and sales of assets permitted pursuant to Section 4.1(d)) or merge or consolidate with any other entity, or (ii) vote any such Pledged Collateral in favor of any of the foregoing, in each case, except as permitted by the Loan Agreement.

(b)            Issuance of Additional Securities. Such Grantor will not permit or suffer the issuer of an Equity Interest constituting Pledged Collateral owned by it to issue additional Equity Interests, any right to receive the same or any right to receive earnings, except to such Grantor.

(c)            Registration of Pledged Collateral. Such Grantor will permit any registerable Pledged Collateral owned by it to be registered in the name of the Agent or its nominee at any time at the option of the Secured Parties.

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(d)            Exercise of Rights in Pledged Collateral.

(i)            Without in any way limiting the foregoing and subject to clause (ii) below, such Grantor shall have the right to exercise all voting rights or other rights relating to the Pledged Collateral owned by it for all purposes not inconsistent with this Security Agreement, the Loan Agreement or any other Loan Document; provided however, that no vote or other right shall be exercised or action taken which would have the effect of impairing the rights of the Agent in any material respect in respect of such Pledged Collateral.

(ii)            Such Grantor will permit the Agent or its nominee at any time after the occurrence and during the continuance of an Event of Default, subject to the terms of the Closing Date Intercreditor Agreements, without notice, to exercise all voting rights or other rights relating to the Pledged Collateral owned by it, including, without limitation, exchange, subscription or any other rights, privileges, or options pertaining to any Equity Interest or Investment Property constituting such Pledged Collateral as if it were the absolute owner thereof.

(iii)            Such Grantor shall be entitled to collect and receive for its own use all cash dividends and interest paid in respect of the Pledged Collateral owned by it to the extent not in violation of the Loan Agreement other than any of the following distributions and payments (collectively referred to as the “Excluded Payments”): (A) dividends and interest paid or payable other than in cash in respect of such Pledged Collateral, and instruments and other property received, receivable or otherwise distributed in respect of, or in exchange for, any Pledged Collateral; and (B) dividends and other distributions paid or payable in cash in respect of such Pledged Collateral in connection with a partial or total liquidation or dissolution during the continuance of an Event of Default and as a result of any action by the Agent to exercise remedies against the Pledged Collateral; provided however, that until actually paid, all rights to such distributions shall remain subject to the Lien created by this Security Agreement.

(iv)            All Excluded Payments and all other distributions in respect of any of the Pledged Collateral owned by such Grantor, whenever paid or made, shall, subject to the terms of the Closing Date Intercreditor Agreements, be delivered to the Agent to hold as Pledged Collateral and shall, if received by such Grantor, be received in trust for the benefit of the Agent, be segregated from the other property or funds of such Grantor, and be forthwith delivered to the Agent as Pledged Collateral in the same form as so received (with any necessary endorsement).

4.7            Intellectual Property.

(a)            Such Grantor will use its commercially reasonable efforts to secure all consents and approvals necessary or appropriate for the assignment to or benefit of the Agent of any material License held by such Grantor and to enforce the security interests granted hereunder.

(b)            Such Grantor shall notify the Agent immediately if it knows or has reason to know that any application or registration relating to any material Patent, Trademark or Copyright (now or hereafter existing) may become abandoned or dedicated, or of any adverse determination (including the institution of, or any such determination in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any court) regarding such Grantor’s ownership of any material Patent, Design, Trademark or Copyright, its right to register the same, or to keep and maintain the same.

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(c)            In no event shall such Grantor, either directly or through any agent, employee, licensee or designee, file an application for the registration of any Patent, Design, Trademark or Copyright with the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency without giving the Agent prior written notice thereof, and, upon request of the Agent, such Grantor shall execute and deliver any and all security agreements as the Agent may request to evidence the Agent’s second priority security interest on such Patent, Design, Trademark or Copyright, and the General Intangibles of such Grantor relating thereto or represented thereby.

(d)            Such Grantor shall take all actions it deems commercially reasonable to maintain and pursue each application, to obtain the relevant registration and to maintain the registration of each of its Patents, Designs, Trademarks and Copyrights (now or hereafter existing), including the filing of applications for renewal, affidavits of use, affidavits of noncontestability and opposition and interference and cancellation proceedings.

(e)            Such Grantor shall promptly sue for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution to protect such Patent, Design, Trademark or Copyright unless such Grantor determines it is not commercially reasonable to do so. In the event that such Grantor institutes suit because any of its Patents, Designs, Trademarks or Copyrights constituting Collateral is infringed upon, or misappropriated or diluted by a third party, such Grantor shall comply with Section 4.8.

4.8            Commercial Tort Claims. Such Grantor shall promptly, and in any event within five (5) Business Days after the same is acquired by it, notify the Agent of any commercial tort claim (as defined in the UCC) acquired by it and, unless the Agent otherwise consents, such Grantor shall enter into an amendment to this Security Agreement, in the form of Exhibit H hereto, granting to Agent a second priority security interest in such commercial tort claim.

4.9            Letter-of-Credit Rights. If such Grantor is or becomes the beneficiary of a letter of credit, it shall promptly, and in any event within five (5) Business Days after becoming a beneficiary, notify the Agent thereof and cause the issuer and/or confirmation bank to (i) consent to the assignment of any Letter-of-Credit Rights to the Agent and (ii) agree to direct all payments thereunder to a Deposit Account at the Agent or subject to a Control Agreement for application to the Obligations, all in form and substance reasonably satisfactory to the Agent.

4.10            Federal, State, Provincial or Municipal Claims. Such Grantor will promptly notify the Agent of any Collateral which constitutes a material claim against the United States government or any state, provincial or local government or any instrumentality or agency thereof, the assignment of which claim is restricted by federal, state, provincial or municipal law.

4.11            No Interference. Such Grantor agrees that it will not interfere with the exercise or beginning of the exercise by the Agent of any one or more of the rights, powers or remedies of the Agent provided for in this Security Agreement or now or hereafter existing at law or in equity or by statute or otherwise.

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4.12            Insurance. (a)  In the event any Collateral is located in any area that has been designated by the Federal Emergency Management Agency as a “Special Flood Hazard Area”, such Grantor shall purchase and maintain flood insurance on such Collateral (including any personal property which is located on any real property leased by such Grantor within a “Special Flood Hazard Area”). The amount of flood insurance required by this Section shall be in an amount equal to the lesser of the total Commitment or the total replacement cost value of the improvements.

(b)            All insurance policies required hereunder and under Section 5.10 of the Loan Agreement shall name the Agent (for the benefit of the Agent and the Lenders) as an additional insured or as lender loss payee, as applicable, and shall contain loss payable clauses or mortgagee clauses, through endorsements in form and substance reasonably satisfactory to the Agent, which provide that: (i) all proceeds thereunder with respect to any Collateral shall be payable to the Agent (subject to any exceptions expressly set forth in the Loan Agreement); (ii) no such insurance shall be affected by any act or neglect of the insured or owner of the property described in such policy; and (iii) such policy and loss payable or mortgagee clauses may be canceled, amended, or terminated only upon at least thirty (30) days prior written notice given to the Agent.

(c)            All premiums on any such insurance shall be paid when due by such Grantor, and copies of the policies delivered to the Agent. If such Grantor fails to obtain any insurance as required by this Section, the Agent may obtain such insurance at the Borrower’s expense. By purchasing such insurance, the Agent shall not be deemed to have waived any Default arising from the Grantor’s failure to maintain such insurance or pay any premiums therefor.

4.13            Collateral Access Agreements. Such Grantor shall use commercially reasonable efforts to obtain a Collateral Access Agreement (or an amendment to any existing Collateral Access Agreements) from the lessor of each leased property or other location where Collateral is stored or located at any time (each, an “Inventory Location”) (which agreement or letter shall provide access rights, contain a waiver or subordination of all Liens or claims that the landlord may assert against the Collateral at the applicable Inventory Location, and shall otherwise be reasonably satisfactory in form and substance to the Agent); provided that the Grantors shall not be obligated to use commercially reasonable efforts to obtain a Collateral Access Agreement with respect to any Inventory Location (i) in existence on the Closing Date, or (ii)1 if the aggregate value of Collateral stored or located at such Inventory Location does not exceed $10,000 at any time. Each Grantor shall timely and fully pay and perform its obligations under all applicable leases and other agreements with respect to each Inventory Location, except to the extent any failure to so pay and perform such an obligation would not reasonably be expected to have a Material Adverse Effect.

4.14            Control Agreements. Such Grantor will provide to the Agent a Control Agreement (or an amendment to any existing Control Agreements) duly executed on behalf of each financial institution, securities broker and securities intermediary at which such Grantor maintains a Deposit Account (other than an Excluded Account) or Securities Account.

1 Subject to diligence.

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4.15            Change of Name or Location; Change of Fiscal Year. Such Grantor shall not (a) change its name as it appears in official filings in the state or jurisdiction of its incorporation, amalgamation or organization, (b) change its chief executive office, principal place of business, mailing address, corporate headquarters or warehouses or locations at which Collateral is held or stored, or the location of its records concerning the Collateral as set forth in this Security Agreement, (c) change the type of entity that it is, (d) change its organization identification number, if any, issued by its state of incorporation or other organization, or (e) change its state or jurisdiction of incorporation, amalgamation or organization, in each case, unless (1) the Agent shall have received at least thirty (30) days’ prior written notice of such change and (2) any reasonable action requested by the Agent in connection therewith has been completed or taken (including any action to continue the perfection of any Liens in favor of the Agent, on behalf of Lenders, in any Collateral), provided that, any new location shall be in the continental United States. Such Grantor shall not change its Fiscal Year.

4.16            Assigned Contracts. Such Grantor will use commercially reasonable efforts to secure all consents and approvals necessary or appropriate for the assignment to or for the benefit of the Agent of any material Assigned Contract held by such Grantor and to enforce the security interests granted hereunder. Such Grantor shall fully perform in all material respects all of its obligations under each of its Assigned Contracts, and shall enforce all of its rights and remedies thereunder, in each case, as it deems appropriate in its business judgment; provided however, that such Grantor shall not take any action or fail to take any action which would cause the termination of any Assigned Contract if such termination would reasonably be expected to have a Material Adverse Effect. Such Grantor shall notify the Agent and the Lenders in writing, promptly after such Grantor becomes aware thereof, of any event or fact which could give rise to a material claim by such Grantor for indemnification under any of such Grantor’s material Assigned Contracts, and shall, to the extent commercially reasonable in the Borrower’s good faith business judgment, diligently pursue such right and report to the Agent on all further material developments with respect thereto. Upon the occurrence of and during the continuance of an Event of Default, the Agent may, and at the direction of the Secured Parties shall, subject to the terms of the Closing Date Intercreditor Agreements, directly enforce such right in its own or such Grantor’s name and may enter into such settlements or other agreements with respect thereto as the Agent or the Secured Parties, as applicable, shall determine. In any suit, proceeding or action brought by the Agent for the benefit of the Lenders under any Assigned Contract for any sum owing thereunder or to enforce any provision thereof, such Grantor shall indemnify and hold the Agent and Lenders harmless from and against all expense, loss or damage suffered by reason of any defense, setoff, counterclaims, recoupment, or reduction of liability whatsoever of the obligor thereunder arising out of a breach by such Grantor of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing from such Grantor to or in favor of such obligor or its successors. All such obligations of such Grantor shall be and remain enforceable only against such Grantor and shall not be enforceable against the Agent or the Lenders. Notwithstanding any provision hereof to the contrary, such Grantor shall at all times remain liable to observe and perform all of its duties and obligations under its Assigned Contracts, and the Agent’s or any Lender’s exercise of any of their respective rights with respect to the Collateral shall not release such Grantor from any of such duties and obligations. Neither the Agent nor any Lender shall be obligated to perform or fulfill any of such Grantor’s duties or obligations under its Assigned Contracts or to make any payment thereunder, or to make any inquiry as to the nature or sufficiency of any payment or property received by it thereunder or the sufficiency of performance by any party thereunder, or to present or file any claim, or to take any action to collect or enforce any performance, any payment of any amounts, or any delivery of any property

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4.17            Vehicles. Such Grantor shall arrange for Agent’s second priority security interest to be noted on the certificate of title of each Vehicle with a fair market value in excess of $10,000 and shall file any other necessary documentation in each jurisdiction that Agent shall deem advisable to perfect its security interests in any Vehicle.

ARTICLEV.
EVENTS OF DEFAULT AND REMEDIES

5.1            Events of Default; Remedies. (a)  The occurrence of any Event of Default under the Loan Agreement shall constitute an Event of Default hereunder. Upon the occurrence and during the continuance of an Event of Default, the Agent may, subject to the terms of the Closing Date Intercreditor Agreements, with the concurrence or at the direction of the Secured Parties, exercise any or all of the following rights and remedies:

(i)            those rights and remedies provided in this Security Agreement, the Loan Agreement, or any other Loan Document; provided that, this Section 5.1(a) shall not be understood to limit any rights or remedies available to the Agent and the Lenders prior to an Event of Default;

(ii)            those rights and remedies available to a secured party under the UCC (whether or not the UCC applies to the affected Collateral) or under any other applicable law (including, without limitation, any law governing the exercise of a bank’s right of setoff or bankers’ lien) when a debtor is in default under a security agreement;

(iii)            give notice of sole control or any other instruction under any Control Agreement and take any action therein with respect to such Collateral;

(iv)            without notice (except as specifically provided in Section 8.1 or elsewhere herein), demand or advertisement of any kind to any Grantor or any other Person, enter the premises of any Grantor where any Collateral is located (through self-help and without judicial process) to collect, receive, assemble, process, appropriate, sell, lease, assign, grant an option or options to purchase or otherwise dispose of, deliver, or realize upon, the Collateral or any part thereof in one or more parcels at public or private sale or sales (which sales may be adjourned or continued from time to time with or without notice and may take place at any Grantor’s premises or elsewhere), for cash, on credit or for future delivery without assumption of any credit risk, and upon such other terms as the Agent may deem commercially reasonable; and

(v)            concurrently with written notice to the applicable Grantor, transfer and register in its name or in the name of its nominee the whole or any part of the Pledged Collateral, to exchange certificates or instruments representing or evidencing Pledged Collateral for certificates or instruments of smaller or larger denominations, to exercise the voting and all other rights as a holder with respect thereto, to collect and receive all cash dividends, interest, principal and other distributions made thereon and to otherwise act with respect to the Pledged Collateral as though the Agent was the outright owner thereof.

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(b)            The Agent, on behalf of the Lenders, may comply with any applicable state, provincial, territorial or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.

(c)            The Agent, subject to the terms of the Closing Date Intercreditor Agreements, shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent and the Lenders, the whole or any part of the Collateral so sold, free of any right of equity redemption, which equity redemption the Grantor hereby expressly releases.

(d)            Until the Agent is able to effect a sale, lease, or other disposition of Collateral, the Agent, subject to the terms of the Closing Date Intercreditor Agreements, shall have the right to hold or use Collateral, or any part thereof, to the extent that it reasonably deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Agent. The Agent may, if it so elects, seek the appointment of a receiver, interim manager, receiver-manager or other similar person or keeper to take possession of Collateral and to enforce any of the Agent’s remedies (for the benefit of the Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment.

(e)            [Reserved].

(f)            Notwithstanding the foregoing, neither the Agent nor the Lenders shall be required to (i) make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof, (ii) marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, or (iii) effect a public sale of any Collateral.

(g)            Each Grantor recognizes that the Agent may be unable to effect a public sale of any or all the Pledged Collateral and may be compelled to resort to one or more private sales thereof in accordance with clause (a) above. Each Grantor also acknowledges that any private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private. The Agent shall be under no obligation to delay a sale of any of the Pledged Collateral for the period of time necessary to permit any Grantor or the issuer of the Pledged Collateral to register such securities for public sale under the Securities Act of 1933, as amended, or under applicable state securities laws, even if the applicable Grantor and the issuer would agree to do so.

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5.2            Grantor’s Obligations Upon an Event of Default. Upon the request of the Agent, subject to the terms of the Closing Date Intercreditor Agreements, after the occurrence and during the continuance of an Event of Default, each Grantor will:

(a)            assemble and make available to the Agent, the Collateral and all books and records relating thereto at any place or places specified by the Agent, whether at a Grantor’s premises or elsewhere;

(b)            permit the Agent, by the Agent’s representatives and agents, to enter, occupy and use any premises where all or any part of the Collateral, or the books and records relating thereto, or both, are located, to take possession of all or any part of the Collateral or the books and records relating thereto, or both, to remove all or any part of the Collateral or the books and records relating thereto, or both, and to conduct sales of the Collateral, without any obligation to pay the Grantor for such use and occupancy;

(c)            prepare and file, or cause an issuer of Pledged Collateral to prepare and file, with the Securities and Exchange Commission or any other applicable government agency, registration statements, a prospectus and such other documentation in connection with the Pledged Collateral as the Agent may reasonably request, all in form and substance reasonably satisfactory to the Agent, and furnish to the Agent, or cause an issuer of Pledged Collateral to furnish to the Agent, any information regarding the Pledged Collateral in such detail as the Agent may specify;

(d)            take, or cause an issuer of Pledged Collateral to take, any and all actions necessary to register or qualify the Pledged Collateral to enable the Agent to consummate a public sale or other disposition of the Pledged Collateral; and

(e)            at its own expense, cause the independent certified public accountants then engaged by each Grantor to prepare and deliver to the Agent and each Lender, at any time, and from time to time, promptly upon the Agent’s request, the following reports with respect to the applicable Grantor: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) a test verification of such Accounts.

Notwithstanding any provision herein to the contrary, prior to the discharge of First Priority Obligations (as defined in the Silverview Intercreditor Agreement) representations, covenants and other requirements in this Pledge and Security Agreement relating to the endorsement, assignment or delivery of Pledged Collateral, or relating to actions to vest control thereof in, to the Agent, shall be deemed satisfied by the endorsement, assignment or delivery of such Pledged Collateral to the First Priority Representative (as defined in the Silverview Intercreditor Agreement), which shall be deemed an endorsement, assignment or delivery to, or the taking of such actions to vest control in, the Agent for all purposes hereunder.

5.3            Grant of Intellectual Property License. For the purpose of enabling the Agent to exercise the rights and remedies under this Article V at such time as the Agent shall be lawfully entitled to exercise such rights and remedies and during the continuance of an Event of Default, each Grantor hereby (a) grants to the Agent, for the benefit of the Agent and the Lenders, , subject to the terms of the Closing Date Intercreditor Agreements, an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to any Grantor) to use, license or sublicense any intellectual property rights now owned or hereafter acquired by such Grantor, and wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof and (b) irrevocably agrees that the Agent, subject to the terms of the Closing Date Intercreditor Agreements, may sell any of such Grantor’s Inventory directly to any person, including without limitation persons who have previously purchased the Grantor’s Inventory from such Grantor and in connection with any such sale or other enforcement of the Agent’s rights under this Security Agreement, may sell Inventory which bears any Trademark owned by or licensed to such Grantor and any Inventory that is covered by any Copyright owned by or licensed to such Grantor and the Agent may finish any work in process and affix any Trademark owned by or licensed to such Grantor and sell such Inventory as provided herein.

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ARTICLEVI.
ACCOUNT VERIFICATION; ATTORNEY IN FACT; PROXY

6.1            Account Verification. Subject to the terms of the Closing Date Intercreditor Agreements, Agent may at any time, in the Agent’s own name, in the name of a nominee of the Agent, or in the name of any Grantor communicate (by mail, telephone, facsimile or otherwise) with the Account Debtors of any such Grantor, parties to contracts with any such Grantor and obligors in respect of Instruments of any such Grantor to verify with such Persons, to the Agent’s reasonable satisfaction, the existence, amount, terms of, and any other matter relating to, Accounts, Instruments, Chattel Paper, payment intangibles and/or other Receivables.

6.2            Authorization for Secured Party to Take Certain Action.

(a)            Each Grantor irrevocably authorizes the Agent at any time and from time to time in the sole discretion of the Agent and appoints the Agent as its attorney in fact (i) to execute on behalf of such Grantor as debtor and to file financing statements necessary or desirable in the Agent’s sole discretion to perfect and to maintain the perfection and priority of the Agent’s security interest in the Collateral, (ii) to endorse and collect any cash proceeds of the Collateral, (iii) to file a carbon, photographic or other reproduction of this Security Agreement or any financing statement with respect to the Collateral as a financing statement and to file any other financing statement or amendment of a financing statement (which does not add new collateral or add a debtor) in such offices as the Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the Agent’s security interest in the Collateral, (iv) to contact and enter into one or more agreements with the issuers of uncertificated securities which are Pledged Collateral or with securities intermediaries holding Pledged Collateral as may be necessary or advisable to give the Agent Control over such Pledged Collateral, (v) to apply the proceeds of any Collateral received by the Agent as provided in Section 7.3, (vi) to discharge past due taxes, assessments, charges, fees or Liens on the Collateral (except for such Liens as are specifically permitted hereunder), (vii) to contact Account Debtors for any reason, (viii) to demand payment or enforce payment of the Receivables in the name of the Agent or such Grantor and to endorse any and all checks, drafts, and other instruments for the payment of money relating to the Receivables, (ix) to sign such Grantor’s name on any invoice or bill of lading relating to the Receivables, drafts against any Account Debtor of the Grantor, assignments and verifications of Receivables, (x) to exercise all of such Grantor’s rights and remedies with respect to the collection of the Receivables and any other Collateral, (xi) to settle, adjust, compromise, extend or renew the Receivables, (xii) to settle, adjust or compromise any legal proceedings brought to collect Receivables, (xiii) to prepare, file and sign such Grantor’s name on a proof of claim in bankruptcy or similar document against any Account Debtor of such Grantor, (xiv) to prepare, file and sign such Grantor’s name on any notice of Lien, assignment or satisfaction of Lien or similar document in connection with the Receivables, (xv) to change the address for delivery of mail addressed to such Grantor to such address as the Agent may designate and to receive, open and dispose of all mail addressed to such Grantor, and (xvi) to do all other acts and things necessary to carry out this Security Agreement; and such Grantor agrees to reimburse the Agent on demand for any documented payment made or any reasonable and documented out-of-pocket expense incurred by the Agent in connection with any of the foregoing; provided that, this authorization shall not relieve such Grantor of any of its obligations under this Security Agreement or under the Loan Agreement.

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(b)            All acts of said attorney or designee are hereby ratified and approved. The powers conferred on the Agent, for the benefit of the Agent and Lenders, under this Section 6.2 are solely to protect the Agent’s interests in the Collateral and shall not impose any duty upon the Agent or any Lender to exercise any such powers.

(c)            Notwithstanding anything to the contrary set forth herein, the Agent agrees that, except for the powers granted in clauses (i) – (v) of Section 6.2(a), the Agent shall not exercise any power or authority granted under Section 6.2(a) or 6.3 unless an Event of Default shall have occurred and be continuing.

6.3            Proxy. EACH GRANTOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS THE AGENT AS ITS PROXY AND ATTORNEY-IN-FACT (AS SET FORTH IN SECTION 6.2 ABOVE) OF SUCH GRANTOR WITH RESPECT TO ITS PLEDGED COLLATERAL, INCLUDING THE RIGHT TO VOTE SUCH PLEDGED COLLATERAL, WITH FULL POWER OF SUBSTITUTION TO DO SO. IN ADDITION TO THE RIGHT TO VOTE ANY SUCH PLEDGED COLLATERAL, THE APPOINTMENT OF THE AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF SUCH PLEDGED COLLATERAL WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY SUCH PLEDGED COLLATERAL ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF SUCH PLEDGED COLLATERAL OR ANY OFFICER OR AGENT THEREOF), UPON THE OCCURRENCE AND DURING THE CONTINUATION OF AN EVENT OF DEFAULT

6.4            Nature of Appointment; Limitation of Duty. THE APPOINTMENT OF THE AGENT AS PROXY AND ATTORNEY-IN-FACT IN THIS ARTICLE VI IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE DATE ON WHICH THIS SECURITY AGREEMENT IS TERMINATED IN ACCORDANCE WITH SECTION 8.14. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, NEITHER THE AGENT, NOR ANY LENDER, NOR ANY OF THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL HAVE ANY DUTY TO EXERCISE ANY RIGHT OR POWER GRANTED HEREUNDER OR OTHERWISE OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO, EXCEPT IN RESPECT OF DAMAGES DIRECTLY ATTRIBUTABLE TO THE BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PARTY OR ITS AFFILIATES OR THEIR RESPECTIVE RELATED PARTIES AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION; PROVIDED THAT, IN NO EVENT SHALL THEY BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES.

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ARTICLEVII.
COLLECTION AND APPLICATION OF COLLATERAL PROCEEDS; DEPOSIT ACCOUNTS

7.1            Deposit Accounts. Within thirty (30) days after the Closing Date (or such later date as the Agent may agree in writing), each Grantor shall execute and deliver to the Agent, a Control Agreement (or amendment to any existing Control Agreement) for each Deposit Account maintained by such Grantor (other than Excluded Accounts). Before opening or replacing any Deposit Account after the Closing Date, each Grantor shall (a) obtain the Agent’s consent in writing to the opening of such Deposit Account and (b) cause each bank or financial institution at which it seeks to open a Deposit Account (other than an Excluded Account) to enter into a Control Agreement with the Agent in order to give the Agent “Control” over such Deposit Account.

7.2            [Reserved].

7.3            Application of Proceeds; Deficiency.

(a)            [Reserved].

(b)            Notwithstanding anything to the contrary set forth herein, if an Event of Default shall have occurred and be continuing, the Agent, subject to the terms of the Closing Date Intercreditor Agreements, shall have, in addition to all other rights and remedies provided herein and in the other Loan Documents, the rights to direct each banking institution, securities broker or securities intermediary at which any Grantor maintains a Deposit Account (other than an Excluded Account) or a Securities Account, to follow all instructions given to such banking institution, securities broker or securities intermediary by the Agent, including, without limitation, instructions regarding the liquidation of securities and the transfer of funds held in such accounts.

ARTICLEVIII.
GENERAL PROVISIONS

8.1            Waivers. Each Grantor hereby waives notice of the time and place of any public sale or the time after which any private sale or other disposition of all or any part of the Collateral may be made. To the extent such notice may not be waived under applicable law, any notice made shall be deemed reasonable if sent to the Grantors, addressed as set forth in Article IX, at least ten (10) Business Days prior to (i) the date of any such public sale or (ii) the time after which any such private sale or other disposition may be made. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against the Agent or any Lender arising out of the repossession, retention or sale of the Collateral, except such as are directly attributable to the bad faith, gross negligence or willful misconduct of the Agent or such Lender (or its Affiliates or their respective Related Persons) as finally determined by a court of competent jurisdiction. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Agent or any Lender, any valuation, stay, appraisal, extension, moratorium, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise. Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.

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8.2            Limitation on Agent’s and Lenders’ Duty with Respect to the Collateral. The Agent shall have no obligation to clean-up or otherwise prepare the Collateral for sale. The Agent and each Lender shall use reasonable care with respect to the Collateral in its possession or under its control. Neither the Agent nor any Lender shall have any other duty as to any Collateral in its possession or control or in the possession or control of any agent or nominee of the Agent or such Lender, or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. To the extent that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is commercially reasonable for the Agent (i) to fail to incur expenses deemed significant by the Agent to prepare Collateral for disposition or otherwise to transform raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 8.2 is to provide non-exhaustive indications of what actions or omissions by the Agent would be commercially reasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8.2. Without limitation upon the foregoing, nothing contained in this Section 8.2 shall be construed to grant any rights to any Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 8.2.

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8.3            Compromises and Collection of Collateral. The Grantors and the Agent recognize that setoffs, counterclaims, defenses and other claims may be asserted by obligors with respect to certain of the Receivables, that certain of the Receivables may be or become uncollectible in whole or in part and that the expense and probability of success in litigating a disputed Receivable may exceed the amount that reasonably may be expected to be recovered with respect to a Receivable. In view of the foregoing, each Grantor agrees that the Agent may at any time and from time to time, subject to to the terms of the Closing Date Intercreditor Agreements, if an Event of Default has occurred and is continuing, compromise with the obligor on any Receivable, accept in full payment of any Receivable such amount as the Agent in its sole discretion shall determine or abandon any Receivable, and any such action by the Agent shall be commercially reasonable so long as the Agent acts in good faith based on information known to it at the time it takes any such action.

8.4            Secured Party Performance of Debtor Obligations. Without having any obligation to do so, during the existence of an Event of Default, the Agent may perform or pay any obligation which any Grantor has agreed to perform or pay in this Security Agreement and the Grantors shall reimburse the Agent for any amounts paid by the Agent pursuant to this Section 8.4. The Grantors’ obligation to reimburse the Agent pursuant to the preceding sentence shall be an Obligation payable on demand.

8.5            Specific Performance of Certain Covenants. Each Grantor acknowledges and agrees that a breach of any of the covenants contained in Sections 4.1(d), 4.1(e), 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 5.2, or 8.7 or in Article VII will cause irreparable injury to the Agent and the Lenders, that the Agent and Lenders have no adequate remedy at law in respect of such breaches and therefore agrees, without limiting the right of the Agent or the Lenders to seek and obtain specific performance of other obligations of the Grantors contained in this Security Agreement, that the covenants of the Grantors contained in the Sections referred to in this Section 8.5 shall be specifically enforceable against the Grantors.

8.6            Dispositions Not Authorized. No Grantor is authorized to sell or otherwise dispose of the Collateral except as set forth in Section 4.1(d) and notwithstanding any course of dealing between any Grantor and the Agent or other conduct of the Agent, no authorization to sell or otherwise dispose of the Collateral (except as set forth in Section 4.1(d)) shall be binding upon the Agent or the Lenders unless such authorization is in writing signed by the Agent with the consent or at the direction of the Secured Parties.

8.7            No Waiver; Amendments; Cumulative Remedies. No delay or omission of the Agent or any Lender to exercise any right or remedy granted under this Security Agreement shall impair such right or remedy or be construed to be a waiver of any Default or an acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude any other or further exercise thereof or the exercise of any other right or remedy. No waiver, amendment or other variation of the terms, conditions or provisions of this Security Agreement whatsoever shall be valid unless in writing signed by the Agent with the concurrence or at the direction of the Lenders required under Section 8.11 of the Loan Agreement and then only to the extent in such writing specifically set forth. All rights and remedies contained in this Security Agreement or by law afforded shall be cumulative and all shall be available to the Agent and the Lenders until the Obligations have been paid in full.

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8.8            Limitation by Law; Severability of Provisions. All rights, remedies and powers provided in this Security Agreement may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law, and all the provisions of this Security Agreement are intended to be subject to all applicable mandatory provisions of law that may be controlling and to be limited to the extent necessary so that they shall not render this Security Agreement invalid, unenforceable or not entitled to be recorded or registered, in whole or in part. Any provision in any this Security Agreement that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Security Agreement are declared to be severable.

8.9            Reinstatement. This Security Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against any Grantor for liquidation or reorganization, should any Grantor become insolvent or make an assignment for the benefit of any creditor or creditors or should a receiver or trustee be appointed for all or any significant part of any Grantor’s assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

8.10            Benefit of Agreement. The terms and provisions of this Security Agreement shall be binding upon and inure to the benefit of the Grantors, the Agent and the Lenders and their respective successors and assigns (including all persons who become bound as a debtor to this Security Agreement), except that no Grantor shall have the right to assign its rights or delegate its obligations under this Security Agreement or any interest herein, without the prior written consent of the Agent. No sales of participations, assignments, transfers, or other dispositions of any agreement governing the Obligations or any portion thereof or interest therein shall in any manner impair the Lien granted to the Agent, for the benefit of the Agent and the Lenders, hereunder.

8.11            Survival of Representations. All representations and warranties of the Grantors contained in this Security Agreement shall survive the execution and delivery of this Security Agreement.

8.12            Taxes and Expenses. Any Taxes payable or ruled payable by federal, state or provincial authority in respect of this Security Agreement shall be paid by the Grantors, together with interest and penalties, if any. The Grantors shall reimburse the Agent for any and all reasonable out-of-pocket expenses and internal charges (including reasonable attorneys’, auditors’ and accountants’ fees and reasonable time charges of attorneys, paralegals, auditors and accountants who may be employees of the Agent) paid or incurred by the Agent in connection with the preparation, execution, delivery, administration, collection and enforcement of this Security Agreement and in the audit, analysis, administration, collection, preservation or sale of the Collateral (including the expenses and charges associated with any periodic or special audit of the Collateral). Any and all costs and expenses incurred by the Grantors in the performance of actions required pursuant to the terms hereof shall be borne solely by the Grantors.

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8.13            Headings. The title of and section headings in this Security Agreement are for convenience of reference only, and shall not govern the interpretation of any of the terms and provisions of this Security Agreement.

8.14            Termination. This Security Agreement shall continue in effect until (i) the Loan Agreement has terminated pursuant to its express terms and (ii) all of the Obligations (other than contingent indemnity obligations) have been paid and performed in full and no commitments of the Agent or the Lenders which would give rise to any Obligations are outstanding, at which time the security interest granted hereby shall automatically terminate and all rights to the Collateral shall automatically revert to the applicable Grantors. Upon any such termination, the Agent shall, at the Grantors’ expense, promptly execute and deliver to any Grantor all UCC termination statements and other documents and instruments, as such Grantor shall reasonably request to evidence such termination.

8.15            Entire Agreement. This Security Agreement embodies the entire agreement and understanding between the Grantors and the Agent relating to the Collateral and supersedes all prior agreements and understandings between the Grantors and the Agent relating to the Collateral.

8.16            GOVERNING LAW; CONSENT TO FORUM. THIS SECURITY AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN NEW YORK, NEW YORK, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH GRANTOR HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL COURT SITTING IN OR WITH DIRECT OR INDIRECT JURISDICTION OVER THE SOUTHERN DISTRICT OF NEW YORK OR ANY STATE OR SUPERIOR COURT SITTING IN NEW YORK COUNTY, NEW YORK, IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; AND EACH GRANTOR IRREVOCABLY AGREES THAT ALL CLAIMS AND DEMANDS IN RESPECT OF ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. THE AGENT AND EACH LENDER RESERVES THE RIGHT TO BRING PROCEEDINGS AGAINST ANY GRANTOR IN THE COURTS OF ANY OTHER JURISDICTION. NOTHING IN THIS SECURITY AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO PRECLUDE THE ENFORCEMENT BY THE AGENT OR SUCH LENDER OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS SECURITY AGREEMENT TO ENFORCE SAME IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.

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8.17            [Reserved].

8.18            WAIVER OF JURY TRIAL. EACH GRANTOR, THE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.

8.19            Indemnity. Each Grantor hereby agrees to indemnify the Agent and the Lenders, and their respective successors, assigns, agents and employees, from and against any and all liabilities, damages, penalties, suits, costs, and expenses of any kind and nature (including, without limitation, all expenses of litigation or preparation therefor whether or not the Agent or any Lender is a party thereto) imposed on, incurred by or asserted against the Agent or the Lenders, or their respective successors, assigns, agents and employees, in any way relating to or arising out of this Security Agreement, or the manufacture, purchase, acceptance, rejection, ownership, delivery, lease, possession, use, operation, condition, sale, return or other disposition of any Collateral, except for liabilities, claims and damages directly attributable to the gross negligence or willful misconduct of the Agent or such Lender.

8.20            Counterparts. This Security Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Security Agreement by signing any such counterpart

ARTICLEIX.
NOTICES

9.1            Sending Notices. Any notice required or permitted to be given under this Security Agreement shall be sent in accordance with the terms and conditions of Section 8.4 of the Loan Agreement, which are incorporated herein by reference, mutatis mutandi.

9.2            Change in Address for Notices. Each of the Grantors, the Agent and the Lenders may change the address for service of notice upon it by a notice in writing to the other parties.

ARTICLEX.
THE AGENT

Oaktree Fund Administration, LLC has been appointed Agent for the Lenders hereunder pursuant to Section 8.6 of the Loan Agreement. It is expressly understood and agreed by the parties to this Security Agreement that any authority conferred upon the Agent hereunder is subject to the terms of the delegation of authority made by the Lenders to the Agent pursuant to the Loan Agreement, and that the Agent has agreed to act (and any successor Agent shall act) as such hereunder only on the express conditions contained in such Section 8.6. Any successor Agent appointed pursuant to Section 8.6 of the Loan Agreement shall be entitled to all the rights, interests and benefits of the Agent hereunder.

[Signature Page Follows]

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IN WITNESS WHEREOF, the Grantors and the Agent have executed this Security Agreement as of the date first above written.

GRANTORS:
PINSTRIPES, INC.
By:	/s/ Dale Schwartz
Name: Dale Schwartz
Title: Chief Executive Officer
BANYAN ACQUISITION CORPORATION.
By:	/s/ Keith Jaffe
Name: Keith Jaffe
Title: Chief Executive Officer
PINSTRIPES HILLSDALE LLC
By:	/s/ Dale Schwartz
Name: Dale Schwartz
Title: Chief Executive Officer
PINSTRIPES AT PRAIRIEFIRE, INC.
By:	/s/ Dale Schwartz
Name: Dale Schwartz
Title: Chief Executive Officer
PINSTRIPES ILLINOIS, LLC
By:	/s/ Dale Schwartz
Name: Dale Schwartz
Title: Chief Executive Officer

29

AGENT:
OAKTREE FUND ADMINISTRATION, LLC, as Agent
By:	/s/ Vaibhav Kumar
Name: Vaibhav Kumar
Title: Partner

30

EX-10.4

Exhibit 10.4

Execution Version

FIFTH AMENDMENT TO LOAN AGREEMENT AND SECOND AMENDMENT TO PLEDGE AND SECURITY AGREEMENT

THIS FIFTH AMENDMENT TO LOAN AGREEMENT AND SECOND AMENDMENT TO PLEDGE AND SECURITY AGREEMENT (this “Amendment”) is made and entered into as of December 29, 2023, among Silverview Credit Partners LP, a Delaware limited partnership (“Agent”), the Lenders party hereto (the “Lenders”), Pinstripes, Inc., a Delaware corporation (the “Borrower”), and the other Guarantors party hereto.

WHEREAS, reference is hereby made to (i) that certain Loan Agreement, dated as of March 7, 2023 (as amended, supplemented, amended and restated or otherwise modified from time to time and immediately prior to the Amendment Effective Date (as defined below), the “Existing Loan Agreement” and, as amended by this Amendment, the “Loan Agreement”; capitalized terms used but not defined herein having the meanings provided for in the Loan Agreement), by and among the Borrower, the Lenders party thereto and the Agent and (ii) the Pledge and Security Agreement, dated as of March 7, 2023 (amended, supplemented, amended and restated or otherwise modified from time to time and immediately prior to the Amendment Effective Date, the “Security Agreement”), by and among the Borrower, the other grantors party thereto and the Agent;

WHEREAS, effective as of the date hereof, pursuant to, and subject to the terms and conditions set forth in, the Business Combination Agreement, dated as of June 22, 2203 (as amended and restated on September 26, 2023 and November 22, 2023, the “Merger Agreement”), among Pinstripes Holdings, Inc., a Delaware corporation (“Holdings”), the Borrower and Panther Merger Sub Inc., a Delaware corporation (“Merger Sub”), the Borrower intends to merge with and into the Merger Sub, with the Borrower as the surviving entity and a wholly-owned subsidiary of Holdings (the “Merger”); and

WHEREAS, the Borrower has requested, and Agent and the Lenders have agreed to make, certain amendments to the Existing Loan Agreement and the Security Agreement, in each case subject to the terms and conditions hereof.

NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows:

1.            Amendments to Existing Loan Agreement. Effective as of the Amendment Effective Date (as defined below), the Existing Loan Agreement is hereby amended pursuant to this Amendment to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Loan Agreement attached as Exhibit A to this Amendment.

2.            Amendments to Security Agreement. Effective as of the Amendment Effective Date, the Security Agreement is hereby amended as follows:

a.            The definition of “Excluded Collateral” is hereby amended and restated in its entirety to read as follows:

““Excluded Collateral” means (a) any Grantor’s rights or interests in or under, any lease, license, contract or agreement to which such Grantor is a party to the extent, but only to the extent that such a grant would, under the terms of such lease, license, contract or agreement constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Grantor therein or (ii) a breach or termination pursuant to the terms of, or a default under such lease, license, contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including any bankruptcy or insolvency laws) or principles of equity), provided, that (x) immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Grantor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect and (y) to the extent that any such lease, license, contract or agreement would otherwise constitute Collateral (but for the provisions of this paragraph), all proceeds resulting from the sale or disposition by any Grantor of any rights of such Grantor under such lease, license, contract or agreement shall constitute Collateral; (b) any Excluded Account; (c) any application for registration for a Trademark filed with the United States Patent and Trademark Office on an intent-to-use basis until such time (if any) as a statement of use or amendment to allege use is filed, at which time such Trademark shall automatically become part of the Collateral and subject to the security interest pledged; (d) the “Collateral” (as defined in that certain FF&E Security Agreement, dated as of August 18, 2014 (as amended by that certain Second Amendment to Note and Security Agreements, dated on or about May 31, 2021), by and between the Borrower and AH-River East LLC, an Illinois limited liability company, as in effect on the date hereof, which security agreement was entered into in connection with that certain Retail Space Lease, dated as of November 22, 2013 (as amended after the date thereof), by and between the Borrower and AH-River East LLC, an Illinois limited liability company) (the “AH-River East Agreements”); provided, that immediately upon the ineffectiveness, lapse or termination of the AH-River East Agreements, Collateral shall include, and such Grantor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect; and (e) the Granite Priority Collateral until the date that the Granite Debt is paid in in full in cash or immediately available funds and all commitments, if any, to extend credit to the Borrower are terminated or have expired; provided that Excluded Collateral shall not include any proceeds, substitutions or replacements of any Excluded Collateral (unless such proceeds, substitutions or replacements would otherwise independently constitute Excluded Collateral).”

b.            Article II of the Security Agreement is amended by (i) replacing the “.” at the end of clause (xvii) and with “;” and (ii) inserting the following sentence at the end of such Article:

“provided, that, notwithstanding the foregoing, “Collateral” with respect to Holdings, shall be limited to (i) the Equity Interests of the Borrower held by Holdings and the certificates representing such Equity Interest and any interest of Holdings in the entries on the books of the Borrower or any financial intermediary pertaining to the Equity Interests and (ii) all dividends, cash, warrants, rights, instruments and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Equity Interests.”

3.            Representations and Warranties. Each Obligor hereby represents and warrants to Agent and the Lenders as follows:

a.            the execution and delivery of this Amendment, and the performance by each Obligor of this Amendment and the Loan Agreement has been duly authorized by all necessary actions of such Obligor, and do not and will not violate any provision of law, or any writ, order or decree of any court or Governmental Authority or agency, or any provision of the Organizational Documents of such Obligor, and do not and will not result in a breach of, or constitute a default or require any consent under, or result in the creation of any Lien upon any property or assets of such Obligor pursuant to, any law, regulation, instrument or agreement to which any such Obligor is a party or by which any such Person or its respective properties may be subject or bound;

b.            each of this Amendment and the Loan Agreement is the legal, valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with its terms, subject only to bankruptcy and similar laws affecting creditors’ rights generally;

c.            this Amendment has been duly executed and delivered by each Obligor; and

d.            immediately before and after giving effect to this Amendment, no Default or Event of Default will have occurred and be continuing or would result from the consummation of the transactions contemplated hereby.

4.            Conditions to Effectiveness. This Amendment shall become effective upon satisfaction of the following (or waiver by the Agent in its sole discretion), as determined by the Agent in its reasonable discretion (the date of such effectiveness, the “Amendment Effective Date”):

a.            Agent shall have received the following:

i.            counterparts of this Amendment executed and delivered by the Borrower, the Guarantors party hereto and the Lenders;

ii.            counterparts to the Intercreditor Agreement executed and delivered by the Oaktree Agent and the Obligors party thereto;

iii.            counterparts to the Intercreditor Agreement executed and delivered by the Oaktree Agent, the Granite Agent and the Obligors party thereto;

iv.            a counterpart to the Warrant to Purchase Common Stock executed and delivered by the Borrower;

v.            counterparts to the Purchase Option Agreement executed and delivered by the Oaktree Agent and the Granite Agent;

vi.            true, correct and complete copies of the fully executed Oakatree Loan Agreement, the other Oaktree Loan Documents and the amendment to the Granite Loan Agreement, each in form and substance reasonably satisfactory to the Agent;

vii.            a counterpart to the Omnibus Joinder executed and delivered by Holdings;

viii.            a completed amended and restated Perfection Certificate, dated as of the Amendment Effective Date, executed and delivered by the Obligors, together with all attachments contemplated thereby;

ix.            results of a recent Lien search with respect to each Obligor, with the results of such searches to be satisfactory to Agent;

x.            a certificate duly executed by the Secretary or Assistant Secretary or other appropriate officer, manager or director, of each Obligor which shall (A) certify the resolutions of its board of directors, managers, members or other body authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the Senior Officers or managers of such Obligor authorized to sign the Loan Documents to which it is a party, and (C) contain appropriate attachments, including the Organizational Documents of such Obligor certified, if applicable, by the relevant authority of the jurisdiction of formation, and a good standing certificate as of a recent date for such Obligor from its jurisdiction of formation;

xi.            a Notice of Borrowing and such other information as Agent requests in connection with the funding of any loans on the Amendment Effective Date;

xii.            executed opinion of counsel to the Obligors, in form and substance reasonably satisfactory to Agent and covering such matters relating to this Amendment; and

xiii.            all documentation and other information about the Obligors as shall have been requested in writing by Agent prior to the Amended Effective Date that it shall have determined is required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations;

b.            before and after giving effect to this Amendment, no Default or Event of Default shall exist or have occurred and be continuing as of the Amendment Effective Date;

c.            the Merger shall have been or, substantially concurrently with the execution of this Amendment, consummated in accordance with the terms of the Merger Agreement in all material respects;

d.            all of the representations, warranties and certifications of or on behalf of the Obligors contained in Section 3 hereof and set forth in the Loan Agreement and the other Loan Documents shall be true and correct in all material respects (or in all respects if already qualified by materiality or Material Adverse Effect) on and as of the Amendment Effective Date (in each case both immediately before and immediately after giving effect to this Amendment), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if already qualified by materiality or Material Adverse Effect) as of such earlier date; and

e.            the Obligors shall have paid on or before the Amendment Effective Date any and all fees required to be paid pursuant to this Amendment and the Loan Agreement and all Lender Expenses incurred by Agent and the Lenders in connection with this Amendment, including, without limitation, the reasonable fees and expenses of Alston & Bird LLP, counsel to the Agent.

The Obligors shall be deemed to represent and warrant to Agent that each of the foregoing conditions have been satisfied upon the release of their respective signatures to this Amendment.

5.            Borrower’s Reaffirmation. Effective prior to and after the consummation of the Merger, the Borrower hereby expressly (i) reaffirms all its obligations, indebtedness, covenants, and liabilities under the Loan Agreement and the other Loan Documents, including, without limitation, the obligation to pay all Term Loans, interest thereon and all other Obligations on the terms set forth in the Loan Documents, all indemnities set forth in the Loan Documents, and all other obligations of the Borrower under the Loan Agreement and (ii) ratifies, confirms, and acknowledges the Liens, encumbrances and security interests granted to the Agent and agrees that such Liens, encumbrances, security interests and assignments shall continue in full force and effect to secure the payment of the Obligations.

6.            Post-Closing Covenant.

a.            No later than thirty (30) days after the Amendment Effective Date (or such later date as Agent shall agree in its sole discretion), deliver a Control Agreement for each Deposit Account (other than any Excluded Account (as such term is defined in the Security Agreement)) maintained by any Obligor as of the Amendment Effective Date to the extent not delivered prior to the Amendment Effective Date.

b.            No later than ten (10) days after Amendment Effective Date (or such later date as the Agent shall agree in its sole discretion), deliver to the Agent original copies of the stock certificate representing 100% of the issued and outstanding Equity Interests of the Borrower held by Holdings and related stock power, all in form and substance reasonably satisfactory to the Agent.

c.            No later than thirty (30) days after the Amendment Effective Date (or such later date as the Agent shall agree in its sole discretion), deliver a Collateral Access Agreement for each leased property or other location where Collateral is stored or located at any time.

d.            No later than thirty (30) days after the Amendment Effective Date (or such later date as the Agent shall agree its sole discretion), deliver to the Agent insurance certificates and related endorsements for the applicable insurance policies, evidencing (i) the addition of the Agent and its successors and assigns, as additional insured and/or lender loss payee, as applicable, under the applicable insurance policies and (ii) that the Agent and its successors and assigns, will be given notice of any cancellation of each applicable insurance policy, in each case, in form and substance reasonably satisfactory to the Agent.

e.            No later than five (5) days after the Amendment Effective Date (or such later date as Agent shall agree its sole discretion), deliver to Agent amended operating agreements for Pinstripes Hillsdale LLC and Pinstripes Illinois, LLC, incorporating “pledge” provisions reasonably satisfactory to Agent.

7.            No Modification. Except as expressly set forth herein, nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained in the Loan Agreement or any other Loan Document or constitute a course of conduct or dealing among the parties. Agent and the Lenders reserve all rights, privileges and remedies under the Loan Documents. Except as expressly amended hereby, the Loan Agreement and the other Loan Documents remain unmodified and in full force and effect. The parties hereto agree to be bound by the terms and conditions of the Loan Agreement and the other Loan Documents as amended by this Amendment, as though such terms and conditions were set forth herein. On and after the Amendment Effective Date, each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar import shall mean and be a reference to the Loan Agreement as amended hereby, and each reference in any other Loan Document (including any notice, request, certificate or other document executed concurrently with or after the execution and delivery of this Amendment) to the Loan Agreement shall be deemed to be a reference to the Loan Agreement as amended hereby. On and after the Amendment Effective Date, each reference in the Security Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring the Security Agreement, and each reference in the other Loan Documents to “the Security Agreement,” “thereunder,” “thereof” or words of like import referring to the Security Agreement, shall mean and be a reference to the Security Agreement, as amended by this Amendment. This Amendment shall constitute a Loan Document.

8.            Reaffirmation of Obligors. Each Obligor hereby consents to the amendment of the Existing Loan Agreement effected hereby and confirms and agrees that, notwithstanding the effectiveness of this Amendment, each Loan Document to which such Obligor is a party is, and the obligations of such Obligor contained in the Existing Loan Agreement, this Amendment or in any other Loan Document to which it is a party are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, in each case as amended by this Amendment. For greater certainty and without limiting the foregoing, each Obligor hereby confirms that (a) the existing security interests granted by such Obligor in favor of Agent pursuant to the Loan Documents in the Collateral described therein shall continue to secure the Obligations and (b) the existing guaranties provided by such Obligor in favor of Agent pursuant to the Loan Documents shall continue to guarantee the Obligations under the Loan Agreement and the other Loan Documents as and to the extent provided in the Loan Documents.

9.            Release. Each Obligor hereby acknowledges and agrees that, as of the date hereof: (a) neither it nor any of its Subsidiaries has any claim or cause of action against Agent or any Lender (or any of the directors, officers, employees, agents, attorneys or consultants of any of the foregoing) under or pursuant to the Loan Agreement or any other Loan Document and (b) Agent and the Lenders have heretofore properly performed and satisfied in a timely manner all of their obligations to the Obligors and all of their Subsidiaries under or pursuant to the Loan Agreement and any other Loan Document. Notwithstanding the foregoing, Agent and the Lenders wish (and the Obligors agree) to eliminate any possibility that any past conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of their rights, interests, security and/or remedies. Accordingly, for and in consideration of the agreements contained in this Amendment and other good and valuable consideration, each Obligor (for itself and its Subsidiaries and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the “Releasors”) does hereby fully, finally, unconditionally and irrevocably release, waive and forever discharge Agent and the Lenders, together with their respective Affiliates, and each of the directors, officers, employees, agents, attorneys and consultants of each of the foregoing (collectively, the “Released Parties”), from any and all debts, claims, allegations, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the Amendment Effective Date directly arising out of, connected with or related to this Amendment, the Loan Agreement or any other Loan Document, or any act, event or transaction related or attendant thereto, or the agreements of Agent or any Lender contained therein, or the possession, use, operation or control of any of the assets of any Obligor, or the making of any Terms Loans or other advances, or the management of such Term Loans or other advances or the Collateral (collectively, the “Released Claims”). Each Obligor represents and warrants that it has no knowledge of any claim by any Releasor against any Released Party which would constitute a Released Claim or of any facts or acts or omissions of any Released Party which on the date hereof would be the basis of a Released Claim by any Releasor against any Released Party which would not be released hereby.

10.            Counterparts; Delivery. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment and by telecopy or other electronic means shall be effective as delivery of a manually executed counterpart of this Amendment. Notwithstanding anything provided for in any of the Loan Documents, the words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

11.            Complete Agreement. This Amendment constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. By its execution of this Amendment, each of the parties hereto acknowledges and agrees that the terms of this Amendment do not constitute a novation, but, rather, a supplement of the terms of a pre-existing indebtedness and related agreement, as evidenced by the Loan Agreement.

12.            Governing Law. This Amendment shall be deemed to be a contract made under, and for all purposes shall be construed in accordance with, the laws of the State of New York.

[signatures on next page]

IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.

BORROWER:
PINSTRIPES, Inc.
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer
GUARANTORS:
PINSTRIPES HILLSDALE LLC
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer
PINSTRIPES AT PRAIRIEFIRE, INC.
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer
PINSTRIPES ILLINOIS, LLC
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer

AGENT:
SILVERVIEW CREDIT PARTNERS LP
By:	/s/ Vaibhav Kumar
Name:	Vaibhav Kumar
Title:	Partner
LENDERS
Spearhead Insurance Solutions IDF, LLC – Series SCL
	By:   Spearhead IDF Partners, LLC, its Manager
By:	/s/ Ken Foley
Name:	Ken Foley
Title:	Managing Member
SILVERPEAK SPECIAL SITUATIONS LENDING LP
By:	/s/ Vaibhav Kumar
Name:	Vaibhav Kumar
Title:	Partner

EX-10.5

Exhibit 10.5

Execution Version

OMNIBUS JOINDER

This OMNIBUS JOINDER (this “Joinder”) is dated as of December 29, 2023, and is entered into by and between SILVERIEW CREDIT PARTNERS LP, a Delaware limited partnership, as agent for the Lenders (as defined below) (in such capacity, and together with any successor agent, the “Agent”) and PINSTRIPES HOLDINGS, INC., a Delaware corporation formerly known as Banyan Acquisition Corporation (the “New Obligor”).

W I T N E S S E T H

WHEREAS, on March 7, 2023, the following agreements were entered into: (a) that certain Loan Agreement (as amended by the First Amendment to Loan Agreement and First Amendment to Pledge and Security Agreement, dated as of April 19, 2023 (the “First Amendment”), by the Second Amendment to Loan Agreement and Limited Consent, dated as of July 27, 2023, by the Third Amendment to Loan Agreement, dated as of August 9, 2023, by the Fourth Amendment to Loan Agreement and Limited Consent, dated as of October 26, 2023, and the Fifth Amendment to Loan Agreement and Second Amendment to Pledge and Security Agreement, dated as of the date hereof (the “Fifth Amendment”), and as further amended, supplemented, amended and restated or otherwise modified from time to time, the “Loan Agreement”), among the Agent, the financial institutions and other institutional investors from time to time party hereto as lenders (the “Lenders”), Pinstripes, Inc., a Delaware corporation (the “Borrower”), (b) that certain Continuing Guaranty Agreement (the “Guaranty”) among the Guarantors (as defined therein) party thereto and the Agent, and (c) that certain Pledge and Security Agreement (as amended by the First Amendment and the Fifth Amendment, the “Security Agreement”; together with the Loan Agreement, the Guaranty and the other Loan Documents (as defined in the Loan Agreement), collectively, the “Loan Documents”), among the Borrower, the other Grantors (as defined therein) party thereto and the Agent; and

WHEREAS, the Borrower is a wholly owned subsidiary of the New Obligor and, as such, the New Obligor will benefit by virtue of the financial accommodations extended to the Borrower by the Lenders under the Loan Agreement certain rights granted to the Obligors pursuant to the terms of the Loan Agreement and the other Loan Documents.

NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto agree as follows:

1.            Defined Terms. Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings provided for in the Loan Agreement.

2.            Supplements, Joinders and Counterparts.

(a)            The New Obligor hereby absolutely and irrevocably does unconditionally guarantees the full and prompt payment when due, whether at maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise, and at all times thereafter, (i) all of the Obligations, (ii) all terms, conditions, agreements, representations and warranties at any time made by the Borrower to the Lenders pursuant to the Loan Agreement and the other Loan Documents, and (iii) all other debts, obligations and liabilities of the Borrower to the Lenders incurred pursuant to the Loan Agreement and the other Loan Documents, whether direct or indirect, absolute or contingent, secured or unsecured, due or to become due, joint or several, primary or secondary, liquidated or unliquidated, now existing or hereafter incurred, created or arising, howsoever evidenced, whether created directly to or acquired by assignment or otherwise by the Lenders, and whether the Borrower may be liable individually or jointly with others, and regardless of whether recovery upon any of such other debts, obligations or liabilities becomes barred by any statute of limitations, is void or voidable under any law relating to fraudulent obligations or otherwise or is or becomes invalid or unenforceable for any other reason. The New Obligor hereby agrees, as of the date first above written, to be bound as a Guarantor by the terms and conditions of the Guaranty with the same force and effect as if originally named therein as a “Guarantor”. The New Obligor further agrees, as of the date first above written, that each reference in the Guaranty to a “Guarantor” shall also mean and be a reference to the New Obligor, and each reference in any other Loan Document to a “Guarantor” shall also mean and be a reference to the New Obligor. The New Obligor represents and warrants that the representations and warranties made by it as a “Guarantor” under the Guaranty are true and correct in all material respects (or if qualified by materiality, in all respects)) on and as of the date hereof (except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date in all material respects (or if qualified by materiality, in all respects)).

(b)            The New Obligor hereby joins the Security Agreement and, (i) shall be referred to as a “Grantor” and shall become and be a Grantor under the Security Agreement, and each reference in the Security Agreement to a Grantor shall also mean and be a reference to the New Obligor, and each reference in any other Loan Document to a “Grantor” shall also mean and be a reference to the New Obligor and (ii) each reference to “this Security Agreement”, “hereunder”, “hereof” or words of like import referring to the Security Agreement, and each reference in any other Loan Document to “the Security Agreement”, “thereunder”, “thereof” or words of like import referring to the Security Agreement, shall mean and be a reference to this Security Agreement as supplemented by this Joinder. Without limiting the generality of the foregoing, to secure the prompt and complete payment and performance of the Obligations, the New Obligor pledges, assigns and grants to the Agent, for the ratable benefit of the Lenders, a continuing security interest in, (x) the Equity Interests of the Borrower held by the New Obligor and the certificates representing such Equity Interest and any interest of the New Obligor in the entries on the books of the Borrower or any financial intermediary pertaining to the Equity Interests and (y) all dividends, cash, warrants, rights, instruments and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Equity Interests. The New Obligor as a Grantor certifies that the representations and warranties made by it as a “Grantor” under the Security Agreement are true and correct in all material respects (or if qualified by materiality, in all respects) on and as of the date hereof (except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date in all material respects (or if qualified by materiality, in all respects)). The New Obligor does hereby supplement the exhibits to the Security Agreement as set forth in Annex 1 hereto.

3.            Continuing Effect. Except as expressly set forth in Section 2 of this Joinder, nothing in this Joinder shall constitute a modification or alteration of the terms, conditions or covenants of the Loan Documents, or a waiver of any other terms or provisions thereof, and the Loan Documents shall remain unchanged and shall continue in full force and effect, in each case, as amended hereby. Except as specifically provided herein, Agent and each Lender hereby reserve and preserve all of their rights and remedies against any Obligor under the Loan Documents.

-2-

4.            Conditions to Effectiveness. This Joinder shall become effective upon the execution and delivery hereof by the parties hereto.

5.            [Reserved].

6.            Miscellaneous.

(a)            Choice of Law. This Joinder shall be governed by, and shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of laws principles.

(b)            Counterparts; Execution. This Joinder may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Signatures by facsimile, electronic mail, PDF format or other electronic means shall bind the parties hereto. Each party agrees that this Joinder and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Joinder or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in this Joinder Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the Agent to accept electronic signatures in any form or format without its prior written consent.  Without limiting the generality of the foregoing, the New Obligor hereby (i) agrees that, for all purposes, including in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation between the Agent, the New Obligor and the other Obligors, electronic images of this Joinder Agreement or any other Loan Documents (in each case, including with respect to any signature pages thereto) shall have the same legal effect, validity and enforceability as any paper original, and (ii) waives any argument, defense or right to contest the validity or enforceability of the Loan Documents based solely on the lack of paper original copies of any Loan Documents, including with respect to any signature pages thereto.

(c)            Loan Documents. The New Obligor hereto acknowledges and agrees that this Joinder constitutes a Loan Document for all purposes.

(d)            Notices. The New Obligor’s address and e-mail for notices under the Loan Documents shall be the address and e-mail set forth below its signature to this Joinder Agreement.

(e)            Severability. In case any provision in this Joinder shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Joinder and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

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(f)            Headings. The headings listed herein are for convenience only and do not constitute matters to be construed in interpreting this Joinder.

(g)            Entire Agreement. This Joinder and the other Loan Documents embody the entire understanding and agreement among the parties thereto with respect to the subject matter hereof and supersedes any and all prior or contemporaneous agreements or understandings with respect to the subject matter hereof, whether express or implied, oral or written.

(h)            Effectiveness. This Joinder shall become effective immediately upon consummation of the transactions contemplated by that certain Business Combination Agreement, dated as of June 22, 2203 (as amended and restated on September 26, 2023 and November 22, 2023, the “Merger Agreement”), among the New Obligor, the Borrower and Panther Merger Sub Inc., a Delaware corporation (“Merger Sub”), pursuant to which the Borrower intends to merge with and into the Merger Sub, with the Borrower as the surviving entity and a wholly-owned subsidiary of the New Obligor.

[signature pages follow]

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Execution Version

IN WITNESS WHEREOF, this Joinder has been duly executed by the parties on the date first written above.

NEW OBLIGOR:
PINSTRIPES HOLDINGS, INC., a Delaware corporation
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer
Address:
1150 Willow Road
Northbrook, IL 60062
Attention: Dale Schwartz
Email: dale@pinstripes.com

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AGENT:
SILVERVIEW CREDIT PARTNERS LP
By:	/s/ Vaibhav Kumar
Name:	Vaibhav Kumar
Title:	Partner

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EX-10.6

Exhibit 10.6

AMENDMENT NO. 2 TO
TERM LOAN AND SECURITY AGREEMENT

This AMENDMENT NO. 2 TO TERM LOAN AND SECURITY AGREEMENT (this "Amendment") is entered into as of December 29, 2023, by and among PINSTRIPES, INC., a corporation organized under the laws of Delaware ("Borrower"), the financial institutions party hereto (collectively, the "Lenders" and each individually a "Lender") and GCCP II AGENT, LLC, an Illinois limited liability company (in its individual capacity, "GCCP Agent"), as agent for Lenders (GCCP Agent, in such capacity, the "Agent").

RECITALS

A.            Borrower, the Lenders party thereto and Agent are party to that certain Term Loan and Security Agreement, dated as of April 19, 2023 (as amended, restated, supplemented or otherwise modified from time to time hereafter, the "Credit Agreement").

B.             Borrower has requested that Agent and Lenders amend the Credit Agreement in certain respects, including to, among other things, provide for the issuance by Borrower of additional Indebtedness on the date hereof that is secured by a second-priority Lien on the Collateral, in each case as provided in, and subject to the terms and conditions of, this Amendment.

NOW THEREFORE, in consideration of the mutual conditions and agreements set forth in the Credit Agreement and this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1.             Defined Terms; Interpretation. All capitalized terms which are not defined herein shall have the same meanings as set forth in the Credit Agreement. Except as specifically set forth herein, the Credit Agreement shall remain in full force and effect and its provisions shall be binding on the parties hereto and thereto. The rules of construction specified in Sections 1.1, 1.3, 1.4 and 14.14 of the Credit Agreement also apply to this Amendment, mutatis mutandis.

2.             Amendments to Credit Agreement. Subject to the satisfaction of the conditions set forth in Section 3 below, and in reliance on the representations and warranties contained in Section 6 below, the Credit Agreement is hereby amended as follows:

(a)            Section 1.1 of the Credit Agreement is hereby amended to insert each of the following new defined terms therein in the appropriate alphabetical order:

"Business Combination" means the transactions contemplated by the Business Combination Agreement.

"Business Combination Agreement" means the Business Combination Agreement, dated as of June 22, 2023 (as amended and restated on September 26, 2023, and on November 22, 2023), by and among Holdings, Panther Merger Sub Inc., a Delaware corporation, and the Borrower.

"Holdings" means Pinstripes Holdings, Inc., a Delaware corporation.

"Public Information" has the definition provided therefor in Section 6.3 of this Agreement.

"Public Lender" has the definition provided therefor in Section 6.3 of this Agreement.

"Public Lender Notice" has the definition provided therefor in Section 6.3 of this Agreement.

"Public Information" has the definition provided therefor in Section 6.3 of this Agreement.

"Second Amendment" means that certain Amendment No. 2 to Loan and Security Agreement, dated as of the Second Amendment Effective Date.

"Second Amendment Effective Date" means December 29, 2023.

"Second Lien Agent" means Oaktree Fund Administration, LLC.

"Second Lien Intercreditor Agreement" means that certain Intercreditor Agreement, dated as of the Second Amendment Effective Date, between Agent and Second Lien Agent, and acknowledged and agreed to by Borrower, as amended from time to time in accordance with the terms thereof.

"Second Lien Agreement" means that certain Loan Agreement dated as of the Second Amendment Effective Date, between Borrower, Holdings, Second Lien Agent and the Lenders (as defined therein) from time to time party thereto, as in effect on the Second Amendment Effective Date and as the same may be amended from time to time as permitted hereunder.

"Second Lien Collateral" means the "Second Priority Collateral", as such term is defined in the Second Lien Intercreditor Agreement.

"Second Lien Obligations" means Indebtedness owing under the Second Lien Agreement in an aggregate outstanding principal amount not to exceed the Second Lien Cap Amount as set forth in the Second Lien Intercreditor Agreement.

(b)            Each of the following defined terms set forth in Section 1.1 of the Credit Agreement is hereby amended and restated in its entirety, as follows:

"Loan Documents" means the Term Notes, the SBIC Regulatory Letter, the Agreement of Cooperation, the Second Lien Intercreditor Agreement, that certain Purchase Option Agreement dated as of the Second Amendment Effective Date between Agent, Silverview Agent and Oaktree Fund Administration, LLC, and any and all other agreements, instruments and documents, including the guaranties, pledges, powers of attorney, interest or currency swap agreements or other similar agreements now or hereafter executed by Borrower and/or delivered to Agent or any Lender in respect of the transactions contemplated by this Agreement, in each case together with all extensions, renewals, amendments, supplements, modifications, substitutions and replacements thereto and thereof.

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"Material Debt" means (a) the Silverview Debt, (b) the Second Lien Obligations, and (c) all other Indebtedness (other than the Obligations) having an aggregate principal amount in excess of $500,000.

"Permitted Liens" means: (a) Liens in favor of Agent securing the Obligations; (b) Liens for taxes, assessments or other governmental charges (excluding any Lien imposed pursuant to the provisions of ERISA) that are not delinquent or which are being Properly Contested; (c) statutory Liens (other than Liens for Taxes or Liens securing bonding or other surety arrangements) arising in the Ordinary Course of Business of Borrower in favor of landlords, warehouseman or other bailees, but only if and for so long as payment in respect of such Liens is not at the time required or the Indebtedness secured by any such Liens is being Properly Contested and such Liens do not materially detract from the value of the Collateral or materially impair the use thereof in the operation of the Borrower's business; (d) Liens arising from the rendition, entry or issuance against the Borrower of any judgment which does not constitute an Event of Default, (e) Liens on the Second Priority Collateral in favor of Second Lien Agent to secured the Second Priority Obligations, to the extent subject to the Second Lien Intercreditor Agreement and (f) solely with respect to the Specified Deposit Account, normal and customary rights of setoff upon deposits of cash in favor of the applicable bank or other depository institution.

(c)            Article V of the Credit Agreement is hereby amended by inserting a new Section 5.21 therein immediately following Section 5.20 thereof to read as follows:

5.21. Business Combination. The registration statement on Form S-4 filed in connection with the Business Combination does not contain any untrue statement of a material fact, or omit to state a material fact necessary to make the statements contained therein not misleading and the final proxy statement/prospectus filed in connection with the Business Combination does not contain any untrue statement of a material fact, or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.

(d)            Section 6.2 of the Credit Agreement is hereby amended by amending and restating clause (e) thereof in its entirety to read as follows:

(e)            Material Debt. Copies of (x) all amendments or other modifications to any documentation governing any Material Debt of Borrower outstanding from time to time, and (y) all material notices with respect to Material Debt (including notices of default or acceleration) received from any holder or trustee of, under or with respect to any Material Debt of Borrower outstanding from time to time, in each case promptly following receipt any in any event within three (3) Business Days of Borrower's receipt thereof;

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(e)            Section 6.3 of the Credit Agreement is hereby amended by amending and restating clauses (a), (b), (c) and (d) thereof in their entirety to read as follows:

(a) Audited Financial Statements. As soon as available and in any event within ninety (90) days after the close of each Fiscal Year, audited balance sheets of Holdings and its Subsidiaries as of the end of such Fiscal Year and the related statements of income, shareholders' equity and cash flow, on a consolidated basis, certified without any going concern or other material qualification, by a firm of independent certified public accountants of recognized national standing selected by the Borrower but reasonably acceptable to the Agent (it being agreed that Ernst & Young shall be deemed to be acceptable to the Agent) and setting forth in each case in comparative form the corresponding consolidated figures for the preceding Fiscal Year.

(b) [Reserved].

(c) Quarterly Financial Statements. As soon as available, and in any event within forty-five (45) days (or sixty (60) days in the case of the fiscal quarter ending March 31, 2023) after the close of each fiscal quarter of Holdings, unaudited balance sheets of Holdings and its Subsidiaries as of the end of such fiscal quarter and the related unaudited statements of income and cash flow for such fiscal quarter and for the portion of Holding's Fiscal Year then elapsed, on a consolidated basis, and setting forth in each case in comparative form the figures for the previous Fiscal Year and certified by the principal financial officer of the Borrower as prepared in accordance with GAAP and fairly presenting the consolidated financial position and results of operations of the Holdings and its Subsidiaries for such quarter subject only to changes from year-end adjustments and except that such statements need not contain notes.

(f)            Section 6.3 of the Credit Agreement is hereby amended by inserting the following paragraphs at the end thereof, immediately following clause (f) set forth therein:

Notwithstanding any other requirement of this Agreement or any other Loan Document, upon the written request of any Lender (so long as such written request is in effect, a "Public Lender"), Holdings will not, and will cause each of its Subsidiaries and Affiliates and its and each of their respective officers, directors, employees, attorneys, representatives and agents to not, provide such Public Lender with any material nonpublic information regarding Holdings or any of its Subsidiaries or Affiliates without the express prior written consent of such Public Lender. Notwithstanding anything to the contrary herein or any other Loan Document, any information provided to any Public Lender or the Agent by Holdings, its Subsidiaries, Affiliates, and its and each of their respective officers, directors, employees, attorneys, representatives and agents, to the extent Holdings is a public company, (x) to the extent such information is filed with any securities regulator or stock exchange to the authority of which Holdings may become subject from time to time, shall be deemed to be public information ("Public Information") and (y) any other information shall be deemed material nonpublic information ("Private Information"). For the avoidance of doubt, the failure of any of the Borrower to provide any notice or communication otherwise required hereunder or under any other Loan Document to any Public Lender solely as a result of the Borrower’s compliance with this paragraph and because such notice or communication would contain or constitute Private Information shall not constitute or be considered a breach or violation of, or a Default or Event of Default under, this Agreement or any other Loan Document. At any time any Public Lender may deliver written notice to Holdings notifying Holdings that it no longer wishes to be a Public Lender (a "Public Lender Notice"), at which time it will cease to be a Public Lender until such time as it delivers another written request to become a Public Lender. The Public Lender Notice shall not apply retroactively, and the Agent shall have no liability with respect to any material nonpublic information regarding Holdings or any of its Subsidiaries or Affiliates shared by the Agent with any Lender prior to the Agent’s receipt of such Public Lender Notice.

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(g)            Section 6.10 of the Credit Agreement is hereby amended by (i) deleting the first reference to "the Borrower" in each of clauses (a) and (b) thereof and inserting a reference to "Holdings" in lieu thereof, and (ii) inserting a new clause (d) therein, immediately following clause (c), to read as follows:

(d) Notwithstanding anything to the contrary in this Section 6.10, Granite Creek acknowledges and agree that the Observer will receive Private Information; provided, however, that, except with the Agent’s express prior written consent, Holdings will not, and will cause each of its Subsidiaries and Affiliates and its and each of their respective officers, directors, employees, attorneys, representatives and agents to not, provide to the Observer any Private Information that would cause the Observer and/or the Agent or the Agent’s Affiliates to become subject to any special or other blackout periods or other trading restrictions imposed by Holdings or its Subsidiaries except for the customary quarterly blackout periods associated with the release of financial information that end not later than the second trading day following the date Holdings’ and its Subsidiaries’ financial results are publicly disclosed and any other blackout periods and trading restrictions applicable generally to independent members of the board of directors.

(h)            Article VI of the Credit Agreement is hereby amended to insert a new Section 6.14 therein immediately following Section 6.13 thereof to read as follows:

6.14.         Holdings Public Listing. Holdings shall maintain the public listing of its common stock on NASDAQ or NYSE.

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(i)            Section 7.5 of the Credit Agreement is hereby amended by amending and restating the parenthetical at the end thereof in its entirety to read as follows:

(it being agreed that the form and substance of each of the Agreement Regarding Collateral and the Second Lien Intercreditor Agreement is acceptable to Agent).

(j)            Section 9.9 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

9.9 Cross Default. (a) The occurrence of (i) any "Event of Default" under Section 7.1(d) of the Silverview Loan Agreement (as in effect on the date hereof), or (ii) any "Event of Default" under the Silverview Loan Agreement (other than to the extent constituting an Event of Default under clause (a)(i) of this Section 9.9) and (x) the Silverview Debt is accelerated or otherwise becomes due prior to its stated maturity, or (y) any of the Silverview Agent or any Silverview Lender takes, or receipt by Agent of any notice from Silverview Agent under the Agreement Regarding Collateral of its intent to take, any enforcement action, as a result of such Event of Default.

(b) Holdings or any of its respective Subsidiaries (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise, and after passage of any grace period) in respect of any Indebtedness owing with respect to the Second Lien Loan Documents, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or any other event occurs, and such event continues for more than the grace period, if any, therein specified, the effect of which is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), prior to its stated maturity.

(k)            Article IX of the Credit Agreement is hereby amended to insert a new Section 9.13 therein immediately following Section 9.12 thereof to read as follows:

9.13.         Guaranty. Holdings revokes or attempts to revoke the guaranty signed by Holdings; repudiates or disputes its liability thereunder; is in default under the terms thereof; or fails to confirm in writing, promptly after receipt of the Agent’s written request therefor, its ongoing liability under the guaranty in accordance with the terms thereof.

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3.            Conditions Precedent to Effectiveness. This Amendment shall not become effective until each of the following conditions precedent shall have been satisfied (each dated as of the date hereof unless otherwise noted below):

(a)            Agent shall have received from each other party hereto a duly executed counterpart of this Amendment signed on behalf of such party (which may be a facsimile or electronic transmission).

(b)            Agent shall have received payment of all costs and expenses (including reasonable fees, charges and disbursements of counsel for Agent) incurred by Agent in connection with the preparation, negotiation, execution and delivery of this Amendment and all other documents provided for herein or delivered or to be delivered hereunder or in connection herewith to the extent required by Section 14.9 of the Credit Agreement.

(c)            No Default or Event of Default shall have occurred and be continuing as of the date hereof, immediately prior to and after giving effect to this Amendment and the other Second Amendment Transaction Documents.

(d)            Agent shall have received each other Loan Document, certificate, schedule, document, consent, or other agreement referenced on the Closing Agenda attached hereto as Exhibit A (collectively, the "Second Amendment Transaction Documents", other than those indicated thereon in parenthesis as "post-closing" (or words of similar effect).

4.            [Reserved].

5.            Reaffirmation. Without limiting its obligations under or the provisions of the Credit Agreement and the other Loan Documents, Borrower hereby (a) affirms and confirms its pledges, grants, indemnification obligations and other commitments and obligations under the Credit Agreement and each other Loan Document to which it is a party, in each case after giving effect to this Amendment and the other Second Amendment Transaction Documents, (b) agrees that each Loan Document to which it is a party and all guarantees, pledges, grants and other commitments and obligations thereunder and under the Credit Agreement shall continue to be in full force and effect following the effectiveness of this Amendment and (c) confirms that all of the Liens and security interests created and arising under the Loan Documents remain in full force and effect, and are not released or reduced, as collateral security for the Obligations.

6.            Representations and Warranties of Borrower. Borrower hereby represents and warrants to Agent and Lenders, which representations and warranties shall survive the execution and delivery hereof, that on and as of the date hereof and after giving effect to this Amendment:

(a)            Borrower has full power, authority and legal right to enter into this Amendment and the other Second Amendment Transaction Documents to which it is a party and to perform all its respective Obligations hereunder and thereunder. This Amendment and the other Second Amendment Transaction Documents have been duly executed and delivered by Borrower, and this Agreement and such other Second Amendment Transaction Documents constitute the legal, valid and binding obligation of Borrower enforceable in accordance with their terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally. The execution, delivery and performance of this Amendment and the other Second Amendment Transaction Documents (i) are within Borrower's corporate power, have been duly authorized by all necessary corporate action, are not in contravention of law or the terms of Borrower's Organizational Documents or to the conduct of Borrower's business or of any Material Agreement or undertaking to which Borrower is a party or by which Borrower is bound, (ii) will not conflict with or violate any law or regulation, or any judgment, order or decree of any Governmental Body, (iii) will not require the Consent of any Governmental Body, any party to a Material Agreement or any other Person, except those Consents which will have been duly obtained, made or compiled prior to the Closing Date and which are in full force and effect and (iv) will not conflict with, result in any breach in any of the provisions of, or constitute a default under, the provisions of any Material Agreement nor result in the creation of any Lien upon any Collateral;

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(b)            Borrower has furnished Agent, on or prior to the Second Amendment Effective Date, a true, correct and complete copy of each material Second Lien Loan Document entered into delivered (or to be entered into or delivered) on the Second Amendment Effective Date;

(c)            Each representation and warranty of Borrower set forth in the Credit Agreement and in each of the other Loan Documents to which Borrower is a party is hereby restated and affirmed as true and correct in all material respects (without duplication of any materiality qualifier) as of the date hereof as though made on and as of such date (unless expressly stated to relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); and

(d)           No Default or Event of Default shall have occurred and be continuing as of the date hereof, immediately prior to and after giving effect to this Amendment.

Borrower acknowledges that Agent and Lenders are specifically relying upon the representations, warranties and agreements contained herein and that such representations, warranties and agreements constitute a material inducement to Agent and Lenders in entering into this Amendment.

7.            Release. As further consideration for Agent’s and Lenders’ agreement to grant the accommodations set forth herein, Borrower hereby waives and releases and forever discharges Agent, Lenders and their officers, directors, attorneys, agents and employees from any liability, damage, claim, loss or expense of any kind that Borrower may have against Agent or any of the Lenders arising out of or relating to the Obligations, this Amendment or the Loan Documents, in any case for, upon, or by reason of any circumstance, action or cause which arises at any time on or prior to the date of this Amendment.

8.            Miscellaneous.

(a)            This Amendment, together with the other Second Amendment Transaction Documents constituting Loan Documents, embodies the entire agreement and understanding among the parties hereto and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof. This Amendment is made and entered into pursuant to and in accordance with Section 14.2 of the Credit Agreement. This Amendment constitutes a Loan Document for all purposes under the Credit Agreement.

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(b)            On and after the effectiveness of this Amendment, each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein", or words of like import, shall include (in addition to the Credit Agreement) this Amendment. The term "Loan Documents" as defined in Section 1.1 of the Credit Agreement shall include (in addition to the Loan Documents described in the Credit Agreement) this Amendment and the other Second Amendment Transaction Documents.

(c)            This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment. Receipt of an executed signature page to this Amendment by facsimile or other electronic transmission shall constitute effective delivery thereof. Electronic records of this executed Amendment maintained by the Lenders shall deemed to be originals.

(d)            This Amendment shall be binding upon Borrower, the Lenders, and Agent and their respective successors and permitted assigns, and shall inure to the benefit of Borrower, the Lenders, and Agent and their successors and permitted assigns.

(e)            THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.

(f)            The provisions of the Credit Agreement contained in Article XI are incorporated herein by reference to the same extent as if reproduced herein in their entirety.

[Signature pages follow]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

PINSTRIPES, INC.
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer

[Signature Page to Amendment No. 2 to Term Loan and Security Agreement]

ADMINISTRATIVE AGENT:
GCCP II AGENT, LLC, an Illinois limited liability company, as Administrative Agent
By:	/s/ Brian Boorstein
Name:	Brian Boorstein
Title:	Member
LENDERS:
GRANITE CREEK FLEXCAP III, L.P., a Delaware limited partnership, as a Lender
By:	GRANITE CREEK GP FLEXCAP III, L.L.C.
	its General Partner

By:	/s/ Brian Boorstein
Name:	Brian Boorstein
Title:	Member

[Signature Page to Amendment No. 2 to Term Loan and Security Agreement]

Exhibit A

Closing Checklist

(See attached.)

EX-10.7

Exhibit 10.7

EXECUTION VERSION

CONTINUING GUARANTY AGREEMENT

THIS CONTINUING GUARANTY AGREEMENT (this “Guaranty”) is made this 29th day of December, 2023, by each of the Persons listed on the signature pages hereto (each a “Guarantor” and, together with any other entity that becomes a guarantor hereunder, collectively, the “Guarantors”), in favor of OAKTREE FUND ADMINISTRATION, LLC, as Agent for the Lenders (in such capacity, the “Agent”).

Recitals:

Agent, the Lenders, Pinstripes, Inc., a Delaware corporation (the “Borrower”) and Banyan Acquisition Corporation, a Delaware corporation, upon consummation of the Business Combination and concurrent with the Business Combination shall amend its name to be Pinstripes Holdings, Inc. as holdings (“Holdings”), are parties to a certain Loan Agreement, dated as of the date hereof (together with all schedules and exhibits thereto and all amendments, restatements, modifications or supplements with respect thereto, the “Loan Agreement”). Pursuant to the Loan Agreement, the Lenders have agreed, subject to all the terms and conditions thereof, to make loans and other extensions of credit to the Borrower from time to time.

A condition to Lenders’ obligation to make loans or other extensions of credit to the Borrower is the Guarantors’ execution and delivery to the Agent of this Guaranty.

To induce the Lenders to make loans or otherwise extend credit or other financial accommodations from time to time to the Borrower, and in recognition of the direct or indirect benefits to be received by each Guarantor from the incurrence of Loans by the Borrower under the Loan Agreement, each Guarantor is willing to execute this Guaranty.

Agreement:

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, Guarantor hereby agrees as follows:

1.            Definitions; Rules of Construction. Capitalized terms used herein, unless otherwise defined, shall have the meanings ascribed to them in the Loan Agreement. As used herein, the words “herein,” “hereof,” “hereunder,” and “hereon” shall have reference to this Guaranty taken as a whole and not to any particular provision hereof; and the word “including” shall mean “including, without limitation.” The phrase “payment in full of the Guaranteed Obligations” shall mean full and final payment of the Guaranteed Obligations (and, in the case of contingent obligations, such as those arising from letters of credit, the cash collateralization of such contingent obligations as required by the Loan Documents) and the termination of all financing commitments under the Loan Agreement.

2.            Guaranty. (a)  Each Guarantor hereby unconditionally and absolutely guarantees to the Agent and the Lenders, the due and punctual payment, performance and discharge (whether upon stated maturity, demand, acceleration or otherwise in accordance with the terms thereof) of (i) all of the Obligations, (ii) all terms, conditions, agreements, representations and warranties at any time made by the Borrower to the Agent and the Lenders pursuant to the Loan Agreement and the other Loan Documents, and (iii) all other debts, obligations and liabilities of the Borrower to the Agent and the Lenders incurred pursuant to the Loan Agreement and the other Loan Documents, whether direct or indirect, absolute or contingent, secured or unsecured, due or to become due, joint or several, primary or secondary, liquidated or unliquidated, now existing or hereafter incurred, created or arising, howsoever evidenced, whether created directly to or acquired by assignment or otherwise by the Agent and the Lenders, and whether the Borrower may be liable individually or jointly with others, and regardless of whether recovery upon any of such other debts, obligations or liabilities becomes barred by any statute of limitations, is void or voidable under any law relating to fraudulent obligations or otherwise or is or becomes invalid or unenforceable for any other reason (the Obligations and all such other debts, liabilities and obligations being jointly referred to as the “Guaranteed Obligations”). Without limiting the generality of the foregoing, the term “Guaranteed Obligations” as used herein shall include all debts, liabilities and obligations incurred by the Borrower to the Agent and the Lenders in any bankruptcy case of the Borrower and any interest, fees or other charges accrued in any such bankruptcy, whether or not any such interest, fees or other charges are recoverable from the Borrower or the Borrower’s estate under 11 U.S.C. § 506.

(b)            Agent shall be under no obligation to marshal any assets in favor of any Guarantor or in payment of any of the Guaranteed Obligations. If and to the extent Agent receives any payment on account of any of the Guaranteed Obligations (whether from the Borrower, any Guarantor, any other guarantor of the Guaranteed Obligations or a third party obligor or from the sale or other disposition of any collateral) and such payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other Person under any bankruptcy act, state or federal law, common law or equitable cause, then the part of the Guaranteed Obligations intended to be satisfied shall be revived and continued in full force and effect as if said payment had not been made. The provisions of this paragraph shall survive the termination of this Guaranty.

(c)            Agent shall have the right to seek recourse against any Guarantor to the full extent provided for herein and against the Borrower to the full extent provided for in any of the Loan Documents. No election to proceed in one form of action or proceeding, or against any Person, or on any obligation, shall constitute a waiver of the Agent’s or any Lender’s right to proceed in any other form of action or proceeding or against any other Person unless Agent has expressly waived such right in writing. Specifically, but without limiting the generality of the foregoing, no action or proceeding by Agent against the Borrower under the Loan Documents or any other instrument or agreement evidencing or securing Guaranteed Obligations shall serve to diminish the liability of any Guarantor for the balance of the Guaranteed Obligations.

(d)            Each Guarantor, and by its acceptance of this Guaranty, the Agent and each Lender, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Agent, the Lenders and each Guarantor hereby irrevocably agree that the Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance. For purposes hereof, “Bankruptcy Law” means any proceeding of the type referred to in Section 7.1(d) of the Loan Agreement or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.

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(e)            Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to the Agent or any Lender under this Guaranty or any other guaranty, such Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Agent and the Lenders under or in respect of the Loan Documents.

3.            Nature of Guaranty. This Guaranty is a primary, immediate and original obligation of each Guarantor; is an absolute, unconditional, continuing and irrevocable guaranty of payment of the Guaranteed Obligations and not of collectability only; is not contingent upon the exercise or enforcement by Agent of whatever rights or remedies Agent may have against the Borrower or others, or the enforcement of any Lien or realization upon any collateral or other security that Agent may at any time possess; and shall remain in full force and effect without regard to future changes in conditions, including change of law

or any invalidity or unenforceability of any of the Guaranteed Obligations or agreements evidencing same. This Guaranty shall be in addition to any other present or future guaranty or other security for any of the Guaranteed Obligations, shall not be prejudiced or unenforceable by the invalidity of any such other guaranty or security, and is not conditioned upon or subject to the execution by any other Person of this Guaranty or any other guaranty or suretyship agreement.

4.            Payment of Guaranteed Obligations. (a)  If any Guarantor should dissolve or become insolvent (within the meaning of the UCC), or if a petition for an order for relief with respect to any Guarantor should be filed by or against such Guarantor under any chapter of the Bankruptcy Code, or if a receiver, trustee or conservator should be appointed for any Guarantor or any of any Guarantor’s property, or if an Event of Default shall occur and be continuing, then, in any such event and whether or not any of the Guaranteed Obligations is then due and payable or the maturity thereof has been accelerated or demand for payment thereof has been made, Agent may, without notice to any Guarantor, make the Guaranteed Obligations immediately due and payable hereunder as to such Guarantor and Agent shall be entitled to enforce the obligations of such Guarantor hereunder as if the Guaranteed Obligations were then due and payable in full. If any of the Guaranteed Obligations are collected by or through an attorney at law, each Guarantor shall pay to Agent reasonable attorneys’ fees and court costs.

(b)            Each Guarantor’s payment of the Guaranteed Obligations shall be without setoff or other deductions, irrespective of any counterclaim, defense or other claim that such Guarantor may have or assert at any time. If for any reason the Borrower has no legal existence or is under no legal obligation to discharge any of the Guaranteed Obligations, or if any of the Guaranteed Obligations become unrecoverable from the Borrower by reason of the Borrower’s insolvency, bankruptcy or reorganization or by other operation of law or for any other reason, this Guaranty shall nevertheless be binding on each Guarantor to the same extent as if such Guarantor had at all times been the principal obligor on all such Guaranteed Obligations. If acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of debt or for any other reason, all such amounts otherwise subject to acceleration under the terms of any Loan Documents or other instrument or agreement evidencing or securing the payment of the Guaranteed Obligations shall be immediately due and payable by Guarantor.

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(c)            The books and records of Agent showing the account between Agent and the Borrower shall be admissible in evidence in any action or proceeding against or involving any Guarantor as prima facie proof of the items therein set forth, and the monthly statements of Agent rendered to the Borrower, to the extent no written objection thereto is made within 30 days from the date of sending thereof to the Borrower, shall be deemed conclusively correct and shall constitute an account stated between Agent and the Borrower and shall be binding on each Guarantor.

5.            Specific Waivers of each Guarantor. To the fullest extent permitted by applicable law:

(a)            Each Guarantor waives any right (except as shall be required by applicable statute and cannot be waived) to require Agent or any Lender to (i) proceed against any other Person, (ii) proceed against or exhaust any security held from any other Person, (iii) protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Person, or any collateral, or (iv) pursue any other remedy in the Agent’s or any Lender’s power whatsoever. Each Guarantor waives any defense based on or arising out of any defense of any other Person, other than payment of the Guaranteed Obligations to the extent of such payment, based on or arising out of the disability of any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Person other than payment of the Obligations to the extent of such payment. Agent may, at the election of the Lenders, foreclose upon any collateral held by Agent by one or more judicial or nonjudicial sales or other dispositions, whether or

not every aspect of any such sale is commercially reasonable or otherwise fails to comply with applicable law or may exercise any other right or remedy Agent or any Lender may have against any other Person, or any security, in each case, without affecting or impairing in any way the liability of each Guarantor hereunder except to the extent the Guaranteed Obligations have been paid.

(b)            Each Guarantor waives all presentments, demands for performance, protests and notices, including notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, and notices of the existence, creation, or incurring of new or additional Obligations or other financial accommodations. Each Guarantor waives notice of any Default or Event of Default under any of the Loan Documents. Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope, and extent of the risks which such Guarantor assumes and incurs hereunder, and agrees that neither Agent nor any other Lender shall have any duty to advise such Guarantor of information known to them regarding such circumstances or risks.

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(c)            Each Guarantor hereby waives: (A) any right to assert against the Agent or any Lender any defense (legal or equitable), set-off, counterclaim, or claim which such Guarantor may now or at any time hereafter have against the Borrower or any other party liable to the Agent or any Lender (other than payment in full of the Guaranteed Obligations); (B) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Guaranteed Obligations or any security therefor; (C) any right or defense arising by reason of any claim or defense based upon an election of remedies by the Agent or any Lender including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against the Borrower or other guarantors or sureties; and (D) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement thereof, and any act (including any payment by such Guarantor) which shall defer or delay the operation of any statute of limitations applicable to the Guaranteed Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to such Guarantor’s liability hereunder.

(d)            Each Guarantor will not exercise any rights that it may now or hereafter acquire against the Borrower or any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Guaranty, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Agent or any Lender against the Borrower or any other guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from the Borrower any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence, such amount shall be held in trust for the benefit of Agent and the Lenders, and shall forthwith be paid to Agent to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Agreement, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Guaranty, no Guarantor may exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse against or with respect to any property or asset of, the Borrower (the “Foreclosed Grantor”), including after payment in full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Equity Interests of such Foreclosed Grantor whether pursuant to this Guaranty or otherwise.

6.            Guarantors’ Consents and Acknowledgments. (a)  Each Guarantor consents and agrees that, without notice to or by such Guarantor and without reducing, releasing, diminishing, impairing or otherwise affecting the liability or obligations of such Guarantor hereunder, Agent may (with or without consideration) compromise or settle any of the Guaranteed Obligations; accelerate the time for payment of any of the Guaranteed Obligations; extend the period of duration or the time for the payment, discharge or performance of any of the Guaranteed Obligations; increase the amount of the Guaranteed Obligations; refuse to enforce, or release all or any Persons liable for the payment of, any of the Guaranteed Obligations; increase, decrease or otherwise alter the rate of interest payable with respect to the principal amount of any of the Guaranteed Obligations or grant other indulgences to the Borrower in respect thereof; amend, modify, terminate, release, or waive any Loan Documents or any other documents or agreements evidencing, securing or otherwise relating to the Guaranteed Obligations (other than this Guaranty); release, surrender, exchange, modify or impair, or consent to the sale, transfer or other disposition of, any collateral or other property at any time securing (directly or indirectly) any of the Guaranteed Obligations or on which Agent may at any time have a Lien; fail or refuse to perfect (or to continue the perfection of) any Lien granted or conveyed to Agent with respect to any collateral, or to preserve rights to any collateral, or to exercise care with respect to any collateral in Agent’s possession; extend the time of payment of any collateral consisting of accounts, notes, chattel paper or other rights to the payment of money; refuse to enforce or forbear from enforcing its rights or remedies with respect to any collateral or any Person liable for any of the Guaranteed Obligations or make any compromise or settlement or agreement therefor in respect of any collateral or with any party to the Guaranteed Obligations; or release or substitute any one or more of the endorsers or guarantors of the Guaranteed Obligations, whether parties to this Guaranty or not.

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(b)            Each Guarantor is fully aware of the financial condition of the Borrower and delivers this Guaranty based solely upon such Guarantor’s own independent investigation and in no part upon any representation or statement of Agent with respect thereto. Each Guarantor is in a position to and hereby assumes full responsibility for obtaining any additional information concerning the Borrower’s financial condition as such Guarantor may deem material to such Guarantor’s obligations hereunder and such Guarantor is not relying upon, nor expecting Agent to furnish such Guarantor any information in Agent’s possession concerning, the Borrower’s financial condition. If Agent, in its sole discretion, undertakes at any time or from time to time to provide any information to any Guarantor regarding the Borrower, any of the collateral or any transaction or occurrence in respect of any of the Loan Documents, Agent shall be under no obligation to update any such information or to provide any such information to such Guarantor on any subsequent occasion. Each Guarantor hereby knowingly accepts the full range of risks encompassed within a contract of “Guaranty,” which risks include, without limitation, the possibility that the Borrower will contract additional Guaranteed Obligations for which such Guarantor may be liable hereunder after the Borrower’s financial condition or ability to pay its lawful debts when they fall due has deteriorated.

(c)            Each Guarantor makes each of the representations and warranties made by the Borrower in Section 4 of the Loan Agreement, to the extent such representation or warranty is applicable to such Guarantor. Such representations and warranties are incorporated herein by this reference as if fully set forth herein. Each Guarantor covenants that it will and, if necessary, will cause or enable the Borrower to, fully comply with each of the covenants and other agreements set forth in the Loan Agreement. Each Guarantor hereby agrees to perform all obligations of such Guarantor that are set forth in the Loan Agreement.

7.            Continuing Nature of Guaranty. (a) This Guaranty shall continue in full force and effect until payment in full of the Guaranteed Obligations. Each Guarantor acknowledges that there may be future advances by Agent to the Borrower and that the number and amount of the Guaranteed Obligations are unlimited and may fluctuate from time to time hereafter, and this Guaranty shall remain in force at all times hereafter, whether there are any Guaranteed Obligations outstanding from time to time or not.

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(b)            To the fullest extent permitted by applicable law, each Guarantor waives any right that such Guarantor may have to terminate or revoke this Guaranty. If, notwithstanding the foregoing waiver, any Guarantor shall nevertheless have any right under applicable law to terminate or revoke this Guaranty, which right cannot be waived by any Guarantor, such termination or revocation shall not be effective until a written notice of such termination or revocation, specifically referring to this Guaranty and signed by such Guarantor, is actually received by an officer of Agent who is familiar with the Borrower’s account with Agent and this Guaranty; but any such termination or revocation shall not affect the obligation of each Guarantor or such Guarantor’s successors or assigns with respect to any of the Guaranteed Obligations owing to Agent and existing at the time of the receipt by Agent of such revocation or to arise out of or in connection with any transactions theretofore entered into by Agent with or for the account of the Borrower. If the Lenders grant loans or other extensions of credit to or for the benefit of the Borrower or takes other action after the termination or revocation by any Guarantor but prior to Agent’s receipt of such written notice of termination or revocation, then the rights of Agent hereunder with respect thereto shall be the same as if such termination or revocation had not occurred.

8.            Agent’s Lien and Offset Rights. In addition to all Liens upon and rights of setoff that Agent may have against each Guarantor or any property of any Guarantor under any other agreement with such Guarantor or pursuant to applicable law, Agent shall have, with respect to such Guarantor’s obligations under this Guaranty and to the extent permitted by law, a contractual possessory security interest in and a contractual right of setoff against, and such Guarantor hereby grants Agent a security interest in, all of such Guarantor’s deposits, moneys, securities and other property now or hereafter in the possession of or on deposit with Agent or any direct or indirect subsidiary or affiliate of Agent, whether held in a general or special account or deposit, whether held jointly with another Person, and whether held for safekeeping or otherwise (excluding, however, any trust accounts).

9.            Subordination; Postponement of Subrogation Rights. (a) Any and all present and future debts and obligations of the Borrower to each Guarantor are hereby waived and postponed in favor of and subordinated to the payment in full of the Guaranteed Obligations. If any payment shall be made to any Guarantor on account of any indebtedness owing by the Borrower to such Guarantor during any time that any Guaranteed Obligations are outstanding, such Guarantor shall hold such payment in trust for the benefit of Agent and shall make such payments to Agent to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the discretion of Agent. The provisions of this Guaranty shall be supplemental to and not in derogation of any rights and remedies or the Agent or any Lender or any affiliate of Agent or such Lender under any separate subordination agreement that Agent, such Lender or such affiliate may at any time or from time to time enter into with any Guarantor.

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(b)            Until the payment in full of the Guaranteed Obligations, no Guarantor shall have any claim, right or remedy (whether or not arising in equity, by contract or applicable law) against the Borrower or any other Person by reason of such Guarantor’s payment or other performance hereunder. Without limiting the generality of the foregoing, each Guarantor hereby subordinates to the payment in full of the Guaranteed Obligations any and all legal or equitable rights or claims that such Guarantor may have to reimbursement, subrogation, indemnity and exoneration and agrees that until the payment in full of the Guaranteed Obligations, such Guarantor shall have no recourse to any assets or property of the Borrower (including any collateral) and no right of recourse against or contribution from any other Person in any way directly or contingently liable for any of the Guaranteed Obligations, whether any of such rights arise under contract, in equity or under applicable law.

10.          Other Guaranties. If on the date of any Guarantor’s execution of this Guaranty or at any time thereafter Agent receives any other guaranty from such Guarantor or from any other Person of any of the Guaranteed Obligations, the execution and delivery to Agent and Agent’s acceptance of any such additional guaranty shall not be deemed in lieu of or to supersede, terminate or diminish this Guaranty, but shall be construed as an additional or supplementary guaranty unless otherwise expressly provided in such additional or supplementary guaranty; and if, prior to the date hereof, any Guarantor or any other Person has given to Agent a previous guaranty or guaranties, this Guaranty shall be construed to be an additional or supplementary guaranty and not to be in lieu thereof or to supersede, terminate or diminish such previous guaranty or guaranties.

11.           Application of Payments. Unless otherwise required by law or a specific agreement to the contrary, all payments received by Agent from the Borrower, any Guarantor or any other Person with respect to the Guaranteed Obligations or from proceeds of the collateral may be applied (or reversed and reapplied) by Agent to the Guaranteed Obligations in such manner and order as Agent desires, in its sole discretion, without affecting in any manner any Guarantor’s liability hereunder.

12.          Limitation on Guaranty. To the extent any performance of this Guaranty would violate any applicable usury statute or other applicable law, the obligation to be fulfilled shall be reduced to the limit legally permitted, so that this Guaranty shall not require any performance in excess of the limit legally permitted, but such obligation shall be fulfilled to the limit of legal validity. Nothing in this Guaranty shall be construed to authorize Agent to collect from any Guarantor any interest that has not yet accrued, is unearned or subject to rebate or is otherwise not entitled to be collected by Agent under applicable law. The provisions of this paragraph shall control every other provision of this Guaranty.

13.          Financial Information; Credit Reports. Each Guarantor warrants that such Guarantor is meeting such Guarantor’s current liabilities as they mature; there are not now pending against such Guarantor any material court or administrative proceedings nor has there been filed (or threatened to be filed) against such Guarantor any undischarged judgments or federal or state tax liens; and such Guarantor is not in default or claimed default under any agreement to which such Guarantor is a party for borrowed money. Each Guarantor shall promptly notify Agent in writing if any of the foregoing warranties cease to be correct and accurate after the date hereof. Each Guarantor shall provide to Agent such information regarding such Guarantor’s assets, liabilities and financial condition generally as Agent may from time to time request (including, without limitation, if Agent elects to assign or sell participations in any of the Guaranteed Obligations or Loan Documents, including this Guaranty), including copies of such Guarantor’s tax returns and financial statements signed by such Guarantor. Lender may forward to each assignee or participant and each prospective assignee or participant all documents and information relating to this Guaranty or to any Guarantor, whether furnished by the Borrower, such Guarantor or any other Person.

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14.          Insurance. Each Guarantor shall maintain with its current insurers or with other financially sound and reputable insurers, insurance with respect to its properties and business against such casualties and contingencies of such type (including product liability, workers’ compensation, larceny, embezzlement or other criminal misappropriation insurance) and in such amounts and with such coverages, limits and deductibles as is customary in the business of such Guarantor.

15.          Notices. All notices, demands, requests, consents, approvals and other communications required or permitted hereunder must be in writing and shall be effective upon receipt by the noticed party. Acceptable methods for giving notices hereunder shall include first-class U.S. mail, facsimile transmission and commercial courier service. Regardless of the manner in which notice is provided, notices may be sent to the addresses for Agent and each Guarantor as set forth above or to such other address as either party may give to the other for such purpose in accordance with this Section.

16.          Taxes. Any payments made by Guarantor to Agent or the Lenders shall be free and clear of, and without deduction or withholding for, any taxes; provided, however, that if Guarantor shall be required by law to deduct or withhold any taxes from any sums payable to the Agent or the Lenders, then Guarantor shall (i) make such deductions or withholdings and pay such amounts to the relevant authority in accordance with applicable law, (ii) pay to the Agent or the Lenders the sum that would have been payable had such deduction or withholding not been made, and (iii) at the time such payment is made, pay to the Agent or the Lenders all additional amounts as specified by the Agent or the Lenders to preserve the after-tax yield the Agent or the Lenders would have received if such tax had not been imposed. This provision does not apply to income taxes payable by the Agent or the Lenders on its taxable income.

17.           Successors and Assigns. All the rights, benefits and privileges of Agent under this Guaranty shall vest in and be enforceable by Agent and its successors and assigns. Agent may, without notice to any Guarantor, assign this Guaranty, in whole or in part. This Guaranty shall be binding upon each Guarantor and each Guarantor’s successors and assigns.

18.          Miscellaneous. This Guaranty expresses the entire understanding of the parties with respect to the subject matter hereof; may not be changed orally, and no obligation of any Guarantor can be released or waived by Agent or any officer or agent of Agent, except by a writing signed by a duly authorized officer of Agent; is intended to take effect as a sealed instrument under the laws of the State of New York; and may be executed in multiple counterparts, all of which taken together shall constitute one and the same Guaranty and the signature page of any counterpart may be removed therefrom and attached to any other counterpart. If any part of this Guaranty is determined to be invalid, the remaining provisions of this Guaranty shall be unaffected and shall remain in full force and effect. No delay or omission on Agent’s part to exercise any right or power arising hereunder will impair any such right or power or be considered a waiver of any such right or power, nor will Lender’s action or inaction impair any such right or power, and all of Agent’s rights and remedies hereunder are cumulative and not exclusive of any other rights or remedies that Lender may have under other agreements, at law or in equity. Time is of the essence of this Guaranty and of each provision hereof. The section headings in this Guaranty are inserted for convenience of reference only and shall in no way alter, modify or define, or be used in construing, the text of this Guaranty.

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19.          CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION.

(a)            THIS GUARANTY SHALL BE DEEMED TO HAVE BEEN MADE IN NEW YORK, NEW YORK, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH GUARANTOR HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL COURT SITTING IN OR WITH DIRECT OR INDIRECT JURISDICTION OVER THE SOUTHERN DISTRICT OF NEW YORK OR ANY STATE OR SUPERIOR COURT SITTING IN NEW YORK COUNTY, NEW YORK, IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS; AND EACH GUARANTOR IRREVOCABLY AGREES THAT ALL CLAIMS AND DEMANDS IN RESPECT OF ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. THE AGENT AND EACH LENDER RESERVES THE RIGHT TO BRING PROCEEDINGS AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO PRECLUDE THE ENFORCEMENT BY THE AGENT OR SUCH LENDER OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS GUARANTY TO ENFORCE SAME IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.

(b)            TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY KNOWINGLY, INTENTIONALLY AND INTELLIGENTLY WAIVES (WITH THE BENEFIT OF ADVICE OF LEGAL COUNSEL OF ITS OWN CHOOSING): (I) THE RIGHT TO TRIAL BY JURY (WHICH THE AGENT AND EACH LENDER HEREBY ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF, RELATED TO OR BASED IN ANY WAY UPON THIS GUARANTY, ANY OF THE LOAN DOCUMENTS, THE OBLIGATIONS OR THE COLLATERAL; (II) ANY CLAIM AGAINST THE AGENT OR ANY LENDER ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF THIS GUARANTY OR ANY OF THE LOAN DOCUMENTS, ANY TRANSACTION THEREUNDER, THE ENFORCEMENT OF ANY REMEDIES BY THE AGENT OR ANY LENDER OR THE USE OF ANY PROCEEDS OF ANY LOANS; AND (III) NOTICE OF ACCEPTANCE OF THIS GUARANTY BY THE AGENT AND THE LENDERS.

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(c)            NO CLAIM MAY BE MADE BY ANY GUARANTOR AGAINST AGENT, ANY OTHER LENDER, OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, COUNSEL, REPRESENTATIVE, AGENT, OR ATTORNEY-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY, OR ANY ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION HEREWITH, AND EACH GUARANTOR HEREBY WAIVES, RELEASES, AND AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be signed, sealed and delivered by its duly authorized officers, on the day and year first written above.

BANYAN ACQUISITION CORPORATION, as a Guarantor
By:	/s/ Keith Jaffee
Name:	Keith Jaffee
Title:	Chief Executive Officer
PINSTRIPES HILLSDALE LLC, as a Guarantor
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer
PINSTRIPES AT PRAIRIEFIRE, INC., as a Guarantor
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer
PINSTRIPES ILLINOIS, LLC, as a Guarantor
By:	/s/ Dale Schwartz
Name:	Dale Schwartz
Title:	Chief Executive Officer

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Accepted and Agreed:

OAKTREE FUND ADMINISTRATION, LLC, as Agent
By: Oaktree Capital Management, L.P. Its: Managing Member
By:	/s/ Evan Kramer
Name:	Evan Kramer
Title:	Vice President
By:	/s/ Patrick McCaney
Name:	Patrick McCaney
Title:	Managing Director and Portfolio Manager

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EX-10.8

Exhibit 10.8

Execution Version

DIRECTOR DESIGNATION AGREEMENT

This DIRECTOR DESIGNATION AGREEMENT (as the same may be amended from time to time in accordance with its terms, the “Agreement”) is entered into as of December 29, 2023 (the “Effective Date”), by and among Pinstripes Holdings, Inc., a Delaware corporation (the “Issuer”) and the Key Individual (as hereinafter defined).

WHEREAS, pursuant to the Second Amended and Restated Business Combination Agreement, dated as of November 22, 2023, by and among Pinstripes, Inc. (“Pinstripes”), Panther Merger Sub Inc., a Delaware corporation (“Merger Sub”) and the Issuer (the “Business Combination Agreement”), the Issuer issued shares of its Common Stock (as defined herein) to, among others, the Key Individual as consideration in connection with the Business Combination.

WHEREAS, as provided in the Business Combination Agreement, the parties hereto have agreed to enter into this Agreement to provide for board designation and other rights applicable to the Key Individual.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties mutually agree as follows:

Article I
DEFINITIONS

Section 1.1            Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:

“Affiliate” means, with respect to any Person, any other Person that controls, is controlled by, or is under common control with such Person. The term “control,” as used with respect to any Person, means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. “Controlled” and “controlling” have meanings correlative to the foregoing.

“Agreement” has the meaning set forth in the Preamble.

“Amended and Restated Certificate of Incorporation” means the Issuer’s Second Amended and Restated Certificate of Incorporation to be filed and effective in connection with the consummation of the Business Combination.

“Beneficial Ownership” and “Beneficially Own” and similar terms have the meaning set forth in Rule 13d-3 under the Exchange Act; provided, however, that for purposes hereof, no member of the Key Individual Group shall be deemed to Beneficially Own any unvested Earnout Shares or any unvested EBITDA Earnout Shares.

“Board” means the Board of Directors of the Issuer.

“Business Combination” means the transactions contemplated by the Business Combination Agreement.

“Business Day” means any day, other than a Saturday, Sunday or one on which banks are authorized by law to be closed in New York, New York.

“Bylaws” means the Issuer’s Amended and Restated Bylaws to be effective in connection with the consummation of the Business Combination.

“Change in Control” means the occurrence of any of the following events:

(a)            the stockholders of the Issuer approve a plan of complete liquidation or dissolution of the Issuer or there is consummated an agreement or series of related agreements for the sale or other disposition, in one or a series of related transactions, of all or substantially all, of the assets of the Issuer (including a sale of all or substantially all of the assets of Pinstripes) to any “person” or “group” (as such terms are defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act), other than to the Key Individual and/or any other members of the Key Individual Group (collectively, the “Permitted Holders”);

(b)            any “person” or “group” (as such terms are defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act, but excluding any employee benefit plan of such person and its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than one or more of the Permitted Holders, becomes the “beneficial owner” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of shares of Common Stock, preferred stock and/or any other class or classes of capital stock of the Issuer (if any) representing in the aggregate more than fifty percent (50%) of the voting power of all of the outstanding shares of capital stock of the Issuer entitled to vote generally in the election of directors; or

(c)            there is consummated a merger or consolidation of the Issuer (or Pinstripes) with any other Person (other than one or more of the Permitted Holders), and, immediately after the consummation of such merger or consolidation, the voting securities of the Issuer immediately prior to such merger or consolidation do not continue to represent, or are not converted into, more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the Person resulting from such merger or consolidation or, if the surviving company is a Subsidiary, the ultimate parent thereof;

provided that, in each case under clause (a), (b) or (c), no Change in Control shall be deemed to occur unless the Key Individual as a result of such transaction ceases to have the ability, without the approval of any Person who is not a Permitted Holder, to elect a majority of the members of the Board of Directors or other governing body of the Issuer (or the resulting entity), and in no event shall a Change in Control be deemed to include any transaction effected for the purpose of (i) changing, directly or indirectly, the form of organization or the organizational structure of the Issuer or any of its Subsidiaries, or (ii) contributing assets or equity to entities controlled by the Issuer (or owned by the Issuer in substantially the same proportions as their ownership of the Issuer). Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the record holders of the Common Stock, preferred stock and/or any other class or classes of capital stock of the Issuer immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in and voting control over, and own substantially all of the shares of, an entity which owns all or substantially all of the assets of the Issuer immediately following such transaction or series of transactions.

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“Common Stock” means the common stock, par value $0.0001 per share, of the Issuer (or equity securities of the Issuer into which the common stock is converted, in a recapitalization or otherwise).

“Closing Date” means the date of the closing of the Business Combination.

“Director” means any member of the Board from time to time.

“Earnout Shares” shall have the meaning set forth in the Business Combination Agreement.

“EBITDA Earnout Shares” shall have the meaning set forth in the Business Combination Agreement.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.

“Independent Director” means a director that qualifies as “independent” under the rules of the New York Stock Exchange (or, if not the New York Stock Exchange, the principal U.S. national securities exchange upon which the Common Stock is listed).

“Issuer” has the meaning set forth in the Recitals.

“Key Individual” means Dale Schwartz.

“Key Individual Shares” means the Shares issued to members of the Key Individual Group pursuant to the Business Combination, but excluding any unvested Earnout Shares and any unvested EBITDA Earnout Shares. For the avoidance of doubt, any Earnout Shares and/or EBITDA Earnout Shares that have vested pursuant to the terms of the Amended and Restated Certificate of Incorporation shall, upon such vesting, be deemed “Key Individual Shares.”

“Key Individual Group” means collectively (i) the Key Individual and (ii) any trusts or family partnerships controlled by the Key Individual.

“Permitted Holders” has the meaning set forth in the definition of “Change in Control”.

“Person” means an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, limited liability company or any other entity of whatever nature, and shall include any successor (by merger or otherwise) of such entity.

“SEC” means the United States Securities and Exchange Commission.

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“Securities Act” means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.

“Shares” means shares of Common Stock.

“Subsidiary” means, with respect to any party, any corporation, partnership, trust, limited liability company or other form of legal entity in which such party (or another Subsidiary of such party) holds stock or other ownership interests representing (a) more that 50% of the voting power of all outstanding stock or ownership interests of such entity, (b) the right to receive more than 50% of the net assets of such entity available for distribution to the holders of outstanding stock or ownership interests upon a liquidation or dissolution of such entity or (c) a general or managing partnership or membership interest in such entity.

Section 1.2         General Interpretive Principles. The name assigned to this Agreement and the section captions used herein are for convenience of reference only and shall not be construed to affect the meaning, construction or effect hereof. Whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. Reference to any agreement, document or instrument means such agreement, document or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof. Unless otherwise specified, the terms “hereof,” “herein” and similar terms refer to this Agreement as a whole, and references herein to Articles or Sections refer to Articles or Sections of this Agreement. For purposes of this Agreement, the words, “include,” “includes” and “including,” when used herein, shall be deemed in each case to be followed by the words “without limitation.” The terms “dollars” and “$” shall mean United States dollars. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Wherever a conflict exists between this Agreement and any other agreement, this Agreement shall control but solely to the extent of such conflict.

Article II
MANAGEMENT

Section 2.1         Board of Directors.

(a)            Composition; Issuer Recommendation. Following the Effective Date, (A) so long as the members of the Key Individual Group continue to collectively Beneficially Own a number of Shares equal to at least 70% of the number of Key Individual Shares (subject to adjustment for stock splits, stock dividends, recapitalizations and similar events after the Closing Date), then the Key Individual shall have the right, but not the obligation, to designate four (4) Directors for election to the Board (any such designee, a “Key Individual Designee”), (B) so long as the members of the Key Individual Group continue to collectively Beneficially Own a number of Shares equal to at least 50% (but less than 70%) of the number of Key Individual Shares (subject to adjustment for stock splits, stock dividends, recapitalizations and similar events after the Closing Date), then the Key Individual shall have the right, but not the obligation, to designate three (3) Key Individual Designees for election to the Board, (C) so long as the members of the Key Individual Group continue to collectively Beneficially Own a number of Shares equal to at least 25% (but less than 50%) of the number of Key Individual Shares (subject to adjustment for stock splits, stock dividends, recapitalizations and similar events after the Closing Date), then the Key Individual shall have the right, but not the obligation, to designate two (2) Key Individual Designees for election to the Board and (D) so long as the members of the Key Individual Group continue to collectively Beneficially Own a number of Shares equal to at least 10% (but less than 25%) of the number of Key Individual Shares (subject to adjustment for stock splits, stock dividends, recapitalizations and similar events after the Closing Date), then the Key Individual shall have the right, but not the obligation, to designate one (1) Key Individual Designee for election to the Board, and the Issuer shall include such Key Individual Designee(s) as nominee(s) for election to the Board at all of the Issuer’s applicable annual or special meetings of stockholders (or consents in lieu of a meeting).

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(b)            The initial four (4) Key Individual Designees (the “Initial Key Individual Designees”) shall be as follows:

Diane Aigotti	Class I (initial term expiring in 2024)
Larry Kadis	Class II (initial term expiring in 2025)
Jack Greenberg	Class III (initial term expiring in 2026)
Dale Schwartz	Class III (initial term expiring in 2026)

(c)            The Issuer acknowledges and agrees that each of the Initial Key Individual Designees other than Mr. Schwartz qualifies as an Independent Director.

(d)            In connection with every meeting of the Board, or a committee thereof, at which Directors are appointed or are nominated (or recommended for appointment or election) to stand for election by stockholders of the Issuer, the Key Individual will have the right to designate those persons to be appointed or nominated (or recommended for appointment or election), as the case may be, for election to the Board for each Director whose term expires at the next annual meeting of stockholders of the Issuer pursuant to the terms of the Amended and Restated Certificate of Incorporation of the Issuer, and who was a prior Key Individual Designee in accordance with this Section 2.1; provided that any Key Individual Designee designated by the Key Individual to fill a vacancy, replace or otherwise fill a seat previously held by a Key Individual Designee must be an individual who will qualify as an Independent Director.

(e)            In the event that the Key Individual requests the removal from the Board of any Key Individual Designee, the Board shall promptly request the resignation of such Key Individual Designee and take any and all actions reasonably necessary or appropriate to cause the removal of such individual from the Board; provided, for the avoidance of doubt, that, notwithstanding anything to the contrary herein, a Key Individual Designee may resign at any time regardless of the period of time left in his or her then current term. The Issuer acknowledges and agrees that each of the Initial Key Individual Designees (other than the Key Individual) has executed a letter whereby such Key Individual Designee agrees to tender such Key Individual Designee’s resignation upon the request by the Key Individual for removal from the Board of such Key Individual Designee, and the Issuer shall require any other Key Individual Designee (other than the Key Individual) to execute a similar letter about appointment or election to the Board.

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(f)            In the event that at any time there is a vacancy on the Board resulting from retirement, resignation or other termination of service for any reason of a Key Individual Designee, the Issuer shall (subject to Section 2.1(g)) promptly fill such vacancy (for the remainder of the then current term) with an individual designated by the Key Individual. If the Key Individual fails to nominate an individual to full such vacancy within thirty days, then the Issuer may appoint a nominee to serve on the Board until the Key Individual designates an individual to fill the vacancy.

(g)            Notwithstanding the foregoing or anything else to the contrary contained in this Article II, (i) except in the case of the Initial Key Individual Designees, as a condition to being appointed or nominated, as the case may be, for election to the Board, any Key Individual Designee shall (A) furnish a completed director and officer questionnaire with respect to the background and qualifications of such person, substantially in the form provided to and requested to be completed by the then current members of the Board, and such nominee’s consent to the Issuer engaging in a background check of such nominee (including through a third party investigation firm), and information reasonably necessary to complete such a background check, in a manner consistent with background checks customarily engaged in by the Issuer for prospective new members of the Board, and (B) make himself or herself available for interviews by the Board, and (ii) in the event that the Board determines reasonably and in good faith, after consultation with outside legal counsel, with respect to any Key Individual Designee, that (W) if such Key Individual Designee is not an Initial Key Individual Designee, such Key Individual Designee is not qualified to serve on the Board consistent with the policies and procedures applicable to all members of the Board (including, but not limited to, (a) if such Key Individual Designee was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses), (b) if such Key Individual Designee was the subject of any order, judgment, or decree not subsequently reversed, suspended or vacated of any court of competent jurisdiction, permanently or temporarily enjoining such proposed director from, or otherwise limiting, the following activities: (1) engaging in any type of business practice, or (2) engaging in any activity in connection with the purchase or sale of any security or in connection with any violation of federal or state securities laws, (c) if such Key Individual Designee was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any federal or state authority barring, suspending or otherwise limiting for more than 60 days the right of such person to engage in any activity described in clause (b)(2), or to be associated with persons engaged in such activity, (d) if such Key Individual Designee was found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended or vacated or (e) if such Key Individual Designee was the subject of, or a party to any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to a violation of any federal or state securities laws or regulations) (X) such Key Individual Designee has engaged in acts or omissions that involve intentional misconduct or an intentional violation of law in respect of the Issuer, (Y) if such Key Individual Designee is not Mr. Schwartz or a replacement thereof, such Key Individual Designee does not qualify as an Independent Director or (Z) the Board’s nomination, appointment or election of such Key Individual Designee pursuant to this Article II would otherwise constitute a material breach of its fiduciary duties to the Issuer’s stockholders, provided that the Board shall inform the Key Individual and such Key Individual Designee of any such determination in writing, explain in reasonable detail the basis for such determination, provide the Key Individual an opportunity to challenge such determination and, if the determination is not changed, instead nominate, appoint or elect, as the case may be another individual designated for nomination, election or appointment to the Board by the Key Individual (subject in each case to this Section 2.1(g)), and the Board and the Issuer shall take all of the actions required by this Article II with respect to the election of such substitute Key Individual Designee. In no event shall the Board make a determination not to nominate, appoint or elect Mr. Schwartz to the Board so long as he is serving as serving as Chief Executive Officer or Executive Chairman of the Issuer. In addition, the Board shall not be required to nominate, appoint or elect a Key Individual Designee to the extent that following such Key Individual Designee’s nomination, appointment or election, the Issuer would fail to meet the listing requirements of the principal U.S. national securities exchange upon which the Common Stock is then listed without the concurrent resignation of a Board member that is not a Key Individual Designee or the appointment of a new Board member that is not a Key Individual Designee.

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(h)            The Issuer shall take all actions necessary and within the Issuer’s control to give effect to the provisions contained in this Article II, including soliciting proxies to vote for the Key Individual Designee(s) designated by the Key Individual and otherwise using its reasonable best efforts to cause the Key Individual Designee(s) designated by the Key Individual to be included in the slate of nominees recommended by the Issuer and elected as a Director of the Issuer.

(i)            The Issuer and its Subsidiaries shall reimburse the Key Individual Designee(s) for all reasonable out-of-pocket expenses incurred in connection with such Key Individual Designee’s attendance at meetings of the Board or the board of directors of any of the Issuer’s Subsidiaries, and any committees thereof, including without limitation travel, lodging and meal expenses, in accordance with the Issuer’s reimbursement policies.

(j)            The Issuer shall (i) enter into an indemnification agreement with, and otherwise indemnify and exculpate, each Key Individual Designee to the same extent as each other member of the Board, and (ii) maintain at all times director and officer liability insurance on commercially reasonable terms which insurance shall cover each member of the Board and the members of each board of directors of each of the Issuer’s Subsidiaries; provided that upon removal or resignation of a member of the Board for any reason, the Issuer shall take all actions reasonably necessary to extend such director and officer liability insurance coverage with respect to such Board member for a period of not less than six (6) years from any such event in respect of any act or omission of such Board member occurring at or prior to such event. Each Key Individual Designee who is not an officer or employee of the Issuer shall also be entitled to the same compensation for service on the Board as each other member of the Board that is not an officer or employee of the Issuer. Each of the Key Individual Designees is an intended third party beneficiary of Section 2.1(i) and this Section 2.1(j), entitled to enforce such Sections as if party thereto.

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Section 2.2         Committees. The Key Individual shall have, to the fullest extent permitted by applicable law, and subject to the applicable independence and other requirements for membership (including Rule 10A-3 of the Exchange Act with regard to the audit committee) on each committee of the Board (as applicable to all members thereof) as determined in good faith by the Board, the right, but not the obligation, to designate a number of members of each committee of the Board equal to at least: (i) a majority of the members of each committee of the Board, for so long as the Key Individual has the ability pursuant to Section 2.1(a) to designate for nomination at least four (4) Key Individual Designees and (ii) at all other times for so long as the Key Individual has the ability pursuant to Section 2.1(a) to designate for nomination at least one (1) Key Individual Designee, one-third (1/3), but in no event fewer than one (1), of the members of each committee of the Board. For purposes of calculating the number of committee members that the Key Individual is entitled to designate pursuant to the immediately preceding sentence, any fractional amounts shall automatically be rounded up to the nearest whole number (e.g., one and one quarter (1 1/4) committee members shall equate to two (2) committee members).

Section 2.3         Issuer Activities; Approvals. The Issuer shall not take any of the following actions without the approval of the Key Individual, so long as the members of the Key Individual Group continue to collectively Beneficially Own a number of Shares equal to at least 10% of the number of Key Individual Shares (subject to adjustment for stock splits, stock dividends, recapitalizations and similar events after the Closing Date):

(a)            any increase or decrease in the size of the Board other than in accordance with this Article II;

(b)            the approval of any amendment or amendments to the Amended and Restated Certificate of Incorporation or Bylaws of the Issuer to the extent any such amendment or amendments could reasonably be deemed to adversely affect any of the Key Individual’s rights hereunder; or

(c)            the approval of any policy, procedure, guideline or committee charter (or amendment or other modification of any of the foregoing) to the extent any such policy, procedure, guideline, committee charter, amendment or modification could reasonably be deemed to adversely affect any of the Key Individual’s rights hereunder.

Article III

MISCELLANEOUS

Section 3.1         Amendment. The terms and provisions of this Agreement may be modified or amended at any time and from time to time only by the written consent of each party hereto.

Section 3.2          Termination. This Agreement shall automatically terminate upon the earlier of (i) a Change in Control; (ii) written agreement between the parties hereto; (iii) the death of the Key Individual or (iv) date on which the Key Individual ceases to have the right to designate any nominee for election to the Board under Section 2.1(a); provided, that Section 2.1(i) and Section 2.1(j) shall survive any such termination in respect of each Key Individual Designee remaining on the Board, and Article I and this Article III of this Agreement shall survive any such termination. Notwithstanding the foregoing, no party hereto shall be relieved from liability for any willful breach of this Agreement.

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Section 3.3            Non-Recourse. Notwithstanding anything that may be expressed or implied in this Agreement or any document or instrument delivered in connection herewith, and notwithstanding the fact that members of the Key Individual Group may be partnerships, by its acceptance of the benefits of this Agreement, the Issuer and the Key Individual covenants, agree and acknowledge that no Person (other than the parties hereto) has any obligations hereunder, and that, to the fullest extent permitted by law, no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any current or future director, officer, employee, general or limited partner or member of the Issuer, the Key Individual or of any Affiliate or assignee thereof, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any the former, current and future equity holders, controlling persons, directors, officers, employees, agents, affiliates, members, managers, general or limited partners or assignees of the Issuer, the Key Individual or any former, current or future stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, Affiliate, agent or assignee of any of the foregoing, as such for any obligation of Issuer or the Key Individual under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.

Section 3.4            No Responsibility. The Issuer acknowledges and agrees that the Key Individual shall not be responsible for, and shall not have any liability to the Issuer or its stockholders in respect of, any acts or omissions of any Key Individual Designee (other than the Key Individual himself) in such Key Individual Designee’s capacity as a member of the Board or of the board of directors of any of the Issuer’s Subsidiaries.

Section 3.5            No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their permitted assigns and successors, and, except as provided in Section 2.1(i), Section 2.1(j) and Section 3.3, nothing herein, express or implied, is intended to or shall confer upon any other Person or entity, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 3.6            Recapitalizations; Exchanges, Etc. The provisions of this Agreement shall apply to the full extent set forth herein with respect to Shares, to any and all shares of capital stock of the Issuer or any successor or assign of the Issuer (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or in substitution of the Shares, by reason of a stock dividend, stock split, stock issuance, reverse stock split, combination, recapitalization, reclassification, merger, consolidation or otherwise.

Section 3.7            Addresses and Notices. Any notice provided for in this Agreement will be in writing and will be either personally delivered, or received by certified mail, return receipt requested, sent by reputable overnight courier service (charges prepaid) or facsimile or electronic mail to the Issuer at the address set forth below and to any other recipient and to any holder of Shares at such address as indicated by the Issuer’s records, or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder when delivered personally or sent by electronic mail (provided confirmation of such electronic mail is received or such electronic mail is delivered during regular business hours on any Business Day to the respective email addresses below and no bounce-back or error message is received by the sender), three days after deposit in the U.S. mail and one day after deposit with a reputable overnight courier service. If notice is given to the Issuer or to the Key Individual, a copy shall be sent to such party at the addresses set forth below:

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(a)            if to the Issuer, to:

Pinstripes Holdings, Inc.
1150 Willow Road
Northbrook, IL 60062
Attention: Dale Schwartz
E-mail: dale@pinstripes.com

with a copy (which shall not constitute written notice) to:

Katten Muchin Rosenman LLP
525 W. Monroe St.
Chicago, IL 60661
Attention: Mark Wood; Christopher Atkinson; Harold Davidson
Email: mark.wood@katten.com; christopher.atkinson@katten.com;
harold.davidson@katten.com

(b)            if to the Key Individual, to:

Pinstripes Holdings, Inc.
1150 Willow Road
Northbrook, IL 60062
Attention: Dale Schwartz
E-mail: dale@pinstripes.com

Section 3.8         Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.

Section 3.9          Waiver. No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement or condition.

Section 3.10       Counterparts. This Agreement may be executed in separate counterparts, each of which will be an original and all of which together shall constitute one and the same agreement binding on all the parties hereto.

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Section 3.11       Applicable Law; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any party or any of its Affiliates or against any party or any of its Affiliates) shall be brought in the Court of Chancery of the State of Delaware (or in the event, but only in the event, that such court does not have subject matter jurisdiction over such action or proceeding, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the action or proceeding is vested exclusively in the federal courts of the United States of America, the United States District Court for the District of Delaware) and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 3.12       Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

Section 3.13       Delivery by Facsimile. This Agreement and any signed agreement or instrument entered into in connection with this Agreement or contemplated hereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or electronic transmission (i.e., in portable document format), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or electronic transmission to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or electronic transmission as a defense to the formation of a contract and each such party forever waives any such defense.

Section 3.14       Entire Agreement. For so long as this Agreement remains in effect, the Issuer shall not enter into any stockholder agreement or arrangement of any kind with any Person with respect to any Shares or other securities to the extent such agreement or arrangement would otherwise be inconsistent, in any material respect, with the provisions of this Agreement. This Agreement constitutes the entire understanding and agreement between the parties as to board designation rights and the other matters covered herein and therein and supersede and replace any prior understanding, agreement between the parties as to board designation rights and the other matters covered herein and therein and supersede and replace any prior understanding, agreement or statement of intent, in each case, written or oral, of any and every nature with respect thereto. In the event of any inconsistency between this Agreement and any agreement executed or delivered to effect the purposes of this Agreement, this Agreement shall govern as among the parties hereto.

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Section 3.15       Remedies. The Issuer and the Key Individual shall be entitled to enforce their rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement (including, without limitation, costs of enforcement) and to exercise all other rights existing in their favor. The parties hereto agree and acknowledge that money damages shall not be an adequate remedy for any breach of the provisions of this Agreement, and that the Issuer or the Key Individual may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance or injunctive relief (without posting a bond or other security) in order to enforce or prevent any violation of the provisions of this Agreement. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative. All obligations hereunder shall be satisfied in full without set-off, defense or counterclaim.

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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or caused this Agreement to be executed on its behalf as of the date first written above.

ISSUER:
PINSTRIPES HOLDINGS, INC.
By:	/s/ Tony Querciagrossa
Name:	Tony Querciagrossa
Title:	CFO
KEY INDIVIDUAL:
By:	/s/ Dale Schwartz
Name:	Dale Schwartz

EX-10.9

 

Exhibit 10.9

 

AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

 

This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of December 29, 2023, by and among (i) Pinstripes Holdings, Inc. (formerly known as Banyan Acquisition Corporation), a Delaware corporation (“Pubco”), (ii) Banyan Acquisition Sponsor LLC, a Delaware limited liability company (“Sponsor”), (iii) each of the Original Pinstripes Affiliates (as defined below), (iv) each of the other Persons listed on the Schedule of Investors attached hereto as of the date hereof, and (v) each of the other Persons set forth from time to time on the Schedule of Investors who, at any time, own securities of Pubco and enter into a joinder to this Agreement agreeing to be bound by the terms hereof (each Person identified in the foregoing (ii) through (iv), an “Investor” and, collectively, the “Investors”). Unless otherwise provided in this Agreement, capitalized terms used herein shall have the meanings set forth in Section 12 hereof.

 

WHEREAS, Pubco and certain of the Investors (the “Original Holders”) are parties to that certain Registration Rights Agreement, dated as of January 19, 2022 (the “Prior Agreement”);

 

WHEREAS, Pubco and Pinstripes, Inc., a Delaware corporation (the “Company”) have entered into a Business Combination Agreement, dated as of June 22, 2023 (as amended and restated on September 26, 2023 and November 22, 2023, the “Business Combination Agreement)” capitalized terms used but not defined herein have the meanings ascribed thereto therein), pursuant to which, and subject to the terms and conditions thereof, Pubco has agreed to acquire all of the issued and outstanding equity interests of the Company (the “Business Combination”);

 

WHEREAS, upon the Closing, the Original Holders will hold shares of Common Stock issued upon conversion of SPAC Class A Shares and SPAC Class B Shares;

 

WHEREAS, upon the Closing, Pubco will issue shares of Class A Common Stock to the parties listed on the Schedule of Investors as a “Non-Redemption Party”, each of whom has signed a joinder to this Agreement;

 

WHEREAS, the Sponsor and certain other Investors hold warrants of Pubco originally issued in a private placement, exercisable for shares of Class A Common Stock (the “Private Placement Warrants”),

 

WHEREAS, upon the Closing, pursuant to the Business Combination Agreement, Pubco will have issued Class A Common Stock to the Key Individual and other stockholders of the Company that were Affiliates of the Company prior to the Closing or that become Affiliates of Pubco upon (or immediately following) the Closing (the “Original Pinstripes Affiliates”);

 

WHEREAS, the parties to the Prior Agreement desire to amend and restate the Prior Agreement in its entirety on the terms and conditions included herein and to include the other Investors identified herein as parties to this Agreement.

 

     

 

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

 

1.            Resale Shelf Registration Rights.

 

(a)            Registration Statement Covering Resale of Registrable Securities. Pubco shall use its reasonable best efforts to prepare and file or cause to be prepared and filed with the Commission, no later than forty-five (45) days following the consummation of the Business Combination (the “Filing Deadline”), a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by the Investors of all of the Registrable Securities held by the Investors (the “Resale Shelf Registration Statement”). The Resale Shelf Registration Statement shall be on Form S-1; provided, that Pubco shall file, within thirty (30) days of such time as Form S-3 (“Form S-3”) is available for the Resale Shelf Registration Statement, a post-effective amendment to the Resale Shelf Registration Statement then in effect, or otherwise file a Registration Statement on Form S-3, registering the Registrable Securities for resale in accordance with the immediately preceding sentence on Form S-3 (provided that Pubco shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement (or post-effective amendment) on Form S-3 covering such Registrable Securities has been declared effective by the Commission). Pubco shall use reasonable best efforts to cause the Resale Shelf Registration Statement to be declared effective as soon as reasonably possible after filing, but in no event later than the earlier of (i) sixty (60) days following the Filing Deadline and (ii) five (5) Business Days after the Commission notifies Pubco that it will not review the Resale Shelf Registration Statement, if applicable (the “Effectiveness Deadline”); provided, that, if the Registration Statement filed pursuant to this Section 1(a) is reviewed by, and Pubco receives comments from, the Commission with respect to such Registration Statement, the Effectiveness Deadline shall be extended to one hundred twenty (120) days following the Filing Deadline. Without limiting the foregoing, as soon as reasonably practicable, but in no event later than five (5) Business Days, following the resolution or clearance of all Commission comments or, if applicable, following notification by the Commission that any such Registration Statement or any amendment thereto will not be subject to review, Pubco shall file a request for acceleration of effectiveness of such Registration Statement (to the extent required, by declaration or ordering of effectiveness, of such Registration Statement or amendment by the Commission) to a time and date not later than two (2) Business days after the submission of such request. The Resale Shelf Registration Statement shall contain a Prospectus in such form as to permit any Investor to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement, and Pubco shall file with the Commission the final form of such Prospectus pursuant to Rule 424 (or successor thereto) under the Securities Act no later than the second (2^nd) Business Day after the Resale Shelf Registration Statement becomes effective. The Resale Shelf Registration Statement shall provide that the Registrable Securities may be sold pursuant to any method or combination of methods legally available to, and requested by, the Investors.

 

(b)            Notwithstanding the registration obligations set forth in this Section 1, in the event that, despite Pubco’s efforts to include all of the Registrable Securities in any Registration Statement filed pursuant to Section 1(a), the Commission informs Pubco (the “Commission’s Notice”) that all of the Registrable Securities cannot, as a result of the application of Rule 415 or otherwise, be registered for resale as a secondary offering on a single Registration Statement, Pubco agrees to promptly (i) inform each of the holders thereof and use its commercially reasonable best efforts to file amendments to the Resale Shelf Registration Statement as required by the Commission and (ii) as soon as reasonably practicable but in no event later than the New Registration Statement Filing Deadline, file an additional Registration Statement (a “New Registration Statement”), on Form S-3, or if Form S-3 is not then available to Pubco for such Registration Statement, on such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, Pubco shall be obligated to use its commercially reasonable best efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”), including without limitation, the Manual of Publicly Available Telephone Interpretations D.29. The Investors shall have the right to participate or have their respective legal counsel participate in any meetings or discussions with the Commission regarding the Commission’s position and to comment or have their respective counsel comment on any written submission made to the Commission with respect thereto. No such written submission shall be made to the Commission to which any Investor’s counsel reasonably objects. Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, unless otherwise directed by the Commission or in writing by a holder as to its Registrable Securities directing the inclusion of less than such holder’s pro rata amount, the number of Registrable Securities to be registered on such Registration Statement will be reduced on a pro rata basis based on the total number of Registrable Securities held by the Investors. In the event Pubco amends the Resale Shelf Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, Pubco will use its commercially reasonable best efforts to file with the Commission, as promptly as allowed by SEC Guidance provided to Pubco or to registrants of securities in general, one or more Registration Statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Resale Shelf Registration Statement, as amended, or the New Registration Statement.

 

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(c)            No Investor shall be named as an “underwriter” in any Registration Statement filed pursuant to this Section 1 without the Investor’s prior written consent; provided that if the Commission requests that an Investor be identified as a statutory underwriter in the Registration Statement, then such Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to Pubco, in which case Pubco’s obligation to register such Investor’s Registered Securities shall be deemed satisfied, or (ii) be included as such in the Registration Statement and identified as a statutory underwriter. In the event that on any Trading Day (as defined below) (the “Registration Trigger Date”) the number of shares available under the Registration Statements filed pursuant to this Section 1 is insufficient to cover all of the Registrable Securities (without giving effect to any limitations on the exercise or conversion of any securities exercisable for, or convertible into, Registrable Securities and, in the case of Registrable Securities issuable upon the exercise of warrants, assuming the exercise of such warrants for cash), Pubco shall amend such Registration Statements, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover the total number of Registrable Securities so issued or issuable (without giving effect to any limitations on the exercise or conversion of any securities exercisable for, or convertible into, Registrable Securities and, in the case of Registrable Securities issuable upon the exercise of warrants, assuming the exercise of such warrants for cash) as of the Registration Trigger Date as soon as reasonably practicable, but in any event within fifteen (15) days after the Registration Trigger Date. Pubco shall use its commercially reasonable best efforts to cause such amendment and/or new Registration Statement to become effective as soon as reasonably practicable following the filing thereof, but in any event Pubco shall cause such amendment and/or new Registration Statement to become effective within sixty (60) days of the Registration Trigger Date (or one hundred twenty (120) days if the applicable Registration Statement or amendment is reviewed by, and comments are thereto provided from, the Commission) or as promptly as practicable in the event Pubco is required to increase its authorized shares. “Trading Day” shall mean any day on which the Common Stock is traded for any period on the principal securities exchange or other securities market on which the Common Stock is then being traded.

 

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2.            Shelf Takedowns.

 

(a)            Shelf Takedowns. At any time when the Resale Shelf Registration Statement for the sale or distribution by holders of Registrable Securities on a delayed or continuous basis pursuant to Rule 415, including by way of an underwritten offering, block sale or other distribution plan (each, a “Resale Shelf Registration”), is effective and its use has not been otherwise suspended by Pubco in accordance with the terms of Section 6 below, upon a written demand (a “Takedown Demand”) by one or more Investors that is a Shelf Participant holding Registrable Securities at such time (the “Initiating Holders”), Pubco will facilitate in the manner described in this Agreement a “takedown” of Registrable Securities off of such Resale Shelf Registration Statement (a “take down offering”) and Pubco shall pay all Registration Expenses in connection therewith; provided that Pubco will provide (x) in connection with any non-marketed underwritten takedown offering (other than a Block Trade), at least two (2) Business Days’ notice of such Takedown Demand to each holder of Registrable Securities (other than the Initiating Holders) that is a Shelf Participant, (y) in connection with any Block Trade, notice of such Takedown Demand to each holder of Registrable Securities (other than the Initiating Holders) that is a Shelf Participant no later than noon Eastern time on the Business Day prior to the requested Takedown Demand and (z) in connection with any marketed underwritten takedown offering, at least five (5) Business Days’ notice of such Takedown Demand to each holder of Registrable Securities (other than the Initiating Holders) that is a Shelf Participant. In connection with any underwritten takedown offering, if any Shelf Participants entitled to receive a notice pursuant to the preceding sentence request inclusion of their Registrable Securities (by notice to Pubco, which notice must be received by Pubco no later than (x) in the case of a non-marketed underwritten takedown offering (other than a Block Trade), the Business Day following the date notice is given to such participant, (y) in the case of a Block Trade, by 10:00 p.m. Eastern time on the date notice is given to such participant and (z) in the case of a marketed underwritten takedown offering, three (3) Business Days following the date notice is given to such participant), the Initiating Holders and the other Shelf Participants that request inclusion of their Registrable Securities shall be entitled to sell their Registrable Securities in such offering. Notwithstanding the foregoing, Pubco shall have no obligation to facilitate, or otherwise in respect of, any takedown offering (i) unless the aggregate market value of the Registrable Securities requested to be included in such takedown offering by the Initiating Holders is at least $35,000,000 in the case of a takedown offering that is a marketed underwritten offering or at least $20,000,000 in the case of a takedown offering that is not an marketed underwritten offering, (ii) during the pendency of, or within one hundred eighty (180) days after, any other takedown offering that has been completed, or (iii) unless the takedown offering is initiated prior to the fifth anniversary of the consummation of the Business Combination. Each holder of Registrable Securities that is a Shelf Participant agrees that such holder shall treat as confidential the receipt of the notice of a Takedown Demand and shall not disclose or use the information contained in such notice without the prior written consent of Pubco until such time as the information contained therein is or becomes available to the public generally, other than as a result of disclosure by the holder in breach of the terms of this Agreement.

 

(b)            Priority on Takedown Offerings. If a takedown offering is an underwritten offering and the managing underwriters advise Pubco in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the Registrable Securities included in such underwritten offering, Pubco shall include in such offering, prior to the inclusion of any securities which are not Registrable Securities, the Registrable Securities requested to be included in such registration (pro rata among the holders of such Registrable Securities requested to be included in such offering on the basis of the number of Registrable Securities so requested to be included).

 

(c)            Selection of Underwriters. If any takedown offering is an underwritten offering, the Applicable Approving Party shall have the right to select the investment banker(s) and manager(s) to administer such takedown offering; provided that such selection shall be subject to the written consent of Pubco, which consent will not be unreasonably withheld. In each case, the Applicable Approving Party shall have the right to approve the underwriting arrangements with such investment banker(s) and manager(s) on behalf of all holders of Registrable Securities participating in such offering. All Investors proposing to distribute their securities through such underwriting shall (together with Pubco) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting.

 

(d)            Other Registration Rights. Pubco represents and warrants that, as of the date of this Agreement, no person or entity, other than (i) the Investors, (ii) stockholders that have registration rights in connection with the Series I Convertible Preferred Stock financing of the Company, (iii) as provided in the warrants of PubCo issued in connection with the loan agreement being entered into in connection with the closing of the Business Combination, and (iv) as provided in the Warrant Agreement, dated as of January 19, 2022, between Pubco and Continental Stock Transfer & Trust Company, has any right to require Pubco to register any securities of Pubco for sale or to include such securities of Pubco in any Registration Statement filed by Pubco for the sale of securities for its own account or for the account of any other person or entity. Further, Pubco represents and warrants that this Agreement supersedes any other registration rights agreement or agreement with similar terms and conditions, including the Original Agreement, and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.

 

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(e)            Revocation of Takedown Notice. At any time prior to the filing of the Prospectus relating to the “pricing” of any offering relating to a Takedown Demand, the holders of Registrable Securities that requested such takedown offering may revoke such request for a takedown offering on behalf of all holders of Registrable Securities participating in such takedown offering, and any holder that requested inclusion in such takedown offering may withdraw from such takedown offering, in each case without liability to such holders of Registrable Securities, in each case by providing written notice to Pubco.

 

3.            Piggyback Registrations.

 

(a)            Right to Piggyback. Whenever Pubco proposes to register under the Securities Act an offering of any of its securities on behalf of any holders thereof (other than (i) pursuant to the Resale Shelf Registration Statement, (ii) pursuant to a Takedown Demand (which, for the avoidance of doubt, is addressed in and subject to the rights set forth in, Section 2 hereof), (iii) in connection with registrations on Form S-4 or S-8 promulgated by the Commission or any successor forms, (iv) pursuant to a registration relating solely to employment benefit plans, or (v) in connection with a registration the primary purpose of which is to register non-convertible debt securities) and the registration form to be used may be used for the offering of Registrable Securities (a “Piggyback Registration”), Pubco shall give prompt written notice to all holders of Registrable Securities of its intention to effect such a Piggyback Registration and, subject to the terms of Sections 3(c) and 3(d) hereof, shall include in such Piggyback Registration (and in all related registrations or qualifications under blue sky laws or in compliance with other registration requirements and in any related underwriting) all Registrable Securities with respect to which Pubco has received written requests for inclusion therein within ten (10) Business Days after the delivery of Pubco’s notice; provided that any such other holder may withdraw its request for inclusion at any time prior to executing the underwriting agreement or, if none, prior to the applicable Registration Statement becoming effective (or, if a such offering is pursuant to an already-effective Registration Statement, prior to the filing of the Prospectus relating to the “pricing” of such offering).

 

(b)            Piggyback Expenses. The Registration Expenses of the participating holders of Registrable Securities shall be paid by Pubco in all Piggyback Registrations, whether or not any such offering is completed.

 

(c)            Priority on Primary Registrations. If a Piggyback Registration is an underwritten primary registration on behalf of Pubco, and the managing underwriters advise Pubco in writing that in their opinion the number of securities requested to be included in such registration exceeds the number of securities which can be sold in such offering without adversely affecting the marketability, proposed offering price, timing or method of distribution of the offering, Pubco shall include in such registration (i) first, the securities Pubco proposes to sell, (ii) second, the Registrable Securities requested to be included in such registration by the Investors which, in the opinion of such underwriters, can be sold, without any such adverse effect (pro rata among the holders of such Registrable Securities requested to be included in such offering on the basis of the number of Registrable Securities so requested to be included), and (iii) third, other securities requested to be included in such registration which, in the opinion of such underwriters, can be sold, without any such adverse effect.

 

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(d)            Priority on Secondary Registrations. If a Piggyback Registration is an underwritten secondary registration on behalf of holders of Pubco’s securities other than holders of Registrable Securities, and the managing underwriters advise Pubco in writing that in their opinion the number of securities requested to be included in such registration exceeds the number of securities which can be sold in such offering without adversely affecting the marketability, proposed offering price, timing or method of distribution of the offering, Pubco shall include in such registration (i) first, the securities being registered by Pubco on behalf of holders of securities other than Registrable Securities, (ii) second, the Registrable Securities requested to be included in such registration by the Investors which, in the opinion of such underwriters, can be sold, without any such adverse effect (pro rata among the holders of such Registrable Securities requested to be included in such offering on the basis of the number of Registrable Securities so requested to be included), and (iii) third, other securities requested to be included in such registration, including by Pubco, which, in the opinion of such underwriters, can be sold, without any such adverse effect.

 

(e)            Right to Terminate Registration. Pubco shall have the right to terminate or withdraw any registration initiated by it under this Section 3 whether or not any holder of Registrable Securities has elected to include securities in such registration. The Registration Expenses of such withdrawn registration shall be borne by Pubco in accordance with Section 8.

 

4.            Agreements of Certain Holders.

 

(a)            If required by the managing underwriter(s), in connection with any underwritten Public Offering on or after the date hereof, any Investor that beneficially owns 1% or more of the outstanding Common Stock on the date of such underwritten Public Offering shall enter into customary lock-up agreements with the managing underwriter(s) of such underwritten Public Offering in such form as agreed to by such managing underwriter(s) and for a period of not more than ninety (90) days following the pricing of such underwritten Public Offering. In no event shall any Investor holding Registrable Securities that is not a director or executive officer of Pubco on the date of such underwritten Public Offering be required to enter into any such lock-up agreement (i) that contains less favorable terms than the terms offered to any other Investor, (ii) after the first anniversary of the Closing Date if it owns less than 5% of the outstanding Common Stock on the date of such underwritten Public Offering (except to the extent that such Investor has requested its Registrable Securities be included in such underwritten registration), or (iii) unless each director and executive officer of Pubco also enters into a lock-up agreement with the same terms.

 

(b)            The holders of Registrable Securities shall use commercially reasonable efforts to provide such information as may reasonably be requested by Pubco, or the managing underwriter, if any, in connection with the preparation of any Registration Statement in which the Registrable Securities of such holder are to be included, including amendments and supplements thereto, in order to effect the Registration Statement, including amendments and supplements thereto, in order to effect the Registration of any Registrable Securities under the Securities Act. Notwithstanding anything else in this Agreement, Pubco shall not be obligated to include such holder’s Registrable Securities to the extent Pubco has not received such information, and received any other reasonably requested selling stockholder questionnaires, on or prior to the later of (i) the fifth (5^th) Business Day following the date on which such information is requested from such holder and (ii) the third (3^rd) Business Day prior to the first anticipated filing date of a Registration Statement pursuant to this Agreement.

 

5.            Registration Procedures. In connection with the Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement or have initiated a takedown offering, Pubco shall use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto Pubco shall as expeditiously as reasonably possible:

 

(a)            prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the Commission a Registration Statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective (provided that at least two (2) Business Days before filing a Registration Statement or prospectus or any amendments or supplements thereto, Pubco shall furnish to counsel selected by the Applicable Approving Party copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel, and no such document shall be filed with the Commission to which the Key Individual or the Sponsor or their respective counsel reasonably objects);

 

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(b)            notify each holder of Registrable Securities of (A) the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for that purpose, (B) the receipt by Pubco or its counsel of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each Registration Statement filed hereunder;

 

(c)            prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement and the prospectus used in connection therewith current, effective and available for the resale of all of the Registrable Securities required to be covered thereby for a period ending when all of the Registrable Securities covered by such Registration Statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such Registration Statement or no longer constitute Registrable Securities (or, if such Registration Statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act applicable to Pubco with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement;

 

(d)            furnish to each seller of Registrable Securities thereunder such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;

 

(e)            during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;

 

(f)            use its commercially reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that Pubco shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);

 

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(g)            promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such Registration Statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a Registration Statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) of any request by the Commission for the amendment or supplementing of such Registration Statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, Pubco promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;

 

(h)            cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by Pubco are then listed;

 

(i)             provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;

 

(j)            enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, in the case of a marketed underwritten Public Offering involving gross proceeds in excess of $35,000,000, participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);

 

(k)            make available for inspection by any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such underwriter, all financial and other records, pertinent corporate and business documents and properties of Pubco as shall be reasonably requested to enable them to exercise their due diligence responsibility, and cause Pubco’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such underwriter, attorney, accountant or agent in connection with such Registration Statement; provided, however, that any such underwriter enters into a confidentiality agreement, in form and substance reasonably satisfactory to Pubco, prior to the release or disclosure of any such information;

 

(l)            in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Common Stock included in such Registration Statement for sale in any jurisdiction, use its commercially reasonable best efforts to promptly obtain the withdrawal of such order;

 

(m)            if the case of an underwritten Public Offering, use its reasonable best efforts to obtain a cold comfort letter from Pubco’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request; and

 

(n)            in the case of an underwritten Public Offering, use its reasonable best efforts, to provide a legal opinion and negative assurance letter of Pubco’s outside counsel, dated the date of the closing under the underwriting agreement, with respect to the Registration Statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions and negative assurance letters of such nature, which legal opinion and negative assurance letter shall be addressed to the underwriters.

 

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6.            Suspension of Sales; Adverse Disclosure; Restrictions on Registration Rights.

 

(a)            Upon receipt of written notice from Pubco that a Registration Statement or Prospectus contains a Misstatement, each of the Investors shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that Pubco hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until it is advised in writing by Pubco that the use of the Prospectus may be resumed.

 

(b)            Subject to Section 6(d), if the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (a) require Pubco to make an Adverse Disclosure or (b) require the inclusion in such Registration Statement of financial statements that are unavailable to Pubco for reasons reasonably beyond Pubco’s control, initial effectiveness or continued use at such time, Pubco may, upon giving prompt written notice of such action to the Investors, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined in good faith by the Board to be necessary for such purpose. In the event Pubco exercises its rights under this Section 6(b), the Investors agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities until such Investor receives written notice from Pubco that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such notice and its contents.

 

(c)            Subject to Section 6(d), (i) during the period starting with the date thirty (30) days prior to Pubco’s good faith estimate of the date of the filing of, and ending on a date ninety (90) days after the effective date of, a Pubco-initiated Registration and provided that Pubco continues to actively employ, in good faith, all reasonable efforts to maintain the effectiveness of the applicable Shelf Registration Statement, or (ii) if, pursuant to Section 2(a), Investors have requested a takedown offering and Pubco and the Investors are unable to obtain the commitment of underwriters to firmly underwrite such offering, Pubco may, upon giving prompt written notice of such action to the Investors, delay any other registered offering pursuant to Section 2(a).

 

(d)            The right to delay or suspend any filing, initial effectiveness or continued use of a Registration Statement pursuant to Section 6(b) shall be exercised by Pubco, in the aggregate, on not more than two occasions or for more than ninety (90) consecutive calendar days or more than one hundred and twenty (120) total calendar days in each case, during any twelve (12)-month period.

 

(e)            Notwithstanding anything herein to the contrary, (i) BTIG, LLC (“BTIG”) and I-Bankers Securities, Inc. (“I-Bankers”, together with BTIG, the “Investment Banks”) may not exercise their rights under Sections 2 and 3 hereunder after five (5) and seven (7) years, respectively, after the effective date of the registration statement relating to Pubco’s initial public offering and (ii) the Investment Banks may not exercise their rights under Section 2 more than one time.

 

7.            Termination of Rights. Notwithstanding anything contained herein to the contrary, the right of any Investor to request, or include Registrable Securities in any, Registration or any takedown offering or other Public Offering hereunder shall terminate on the earlier of (i) such date that such Investor no longer holds Registrable Securities and (ii) the tenth (10^th) anniversary of the Closing Date.

 

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8.            Registration Expenses.

 

(a)            All expenses incident to Pubco’s performance of or compliance with this Agreement, including, without limitation, all registration, qualification and filing fees, listing fees, fees and expenses of compliance with securities or blue sky laws, stock exchange rules and filings, printing expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and disbursements of counsel for Pubco and all independent certified public accountants, underwriters (excluding underwriting discounts and commissions) and other Persons retained by Pubco (all such expenses being herein called “Registration Expenses”), shall be borne by Pubco as provided in this Agreement and, for the avoidance of doubt, Pubco also shall pay all of its internal expenses, the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by Pubco are then listed. Pubco shall also pay all reasonable fees and expenses up to an aggregate amount of $50,000 per offering of one (1) legal counsel selected by the Applicable Approving Party in connection with an offering pursuant to Section 2(a). Each Person that sells securities hereunder shall bear and pay all underwriting discounts and commissions, brokerage fees and transfer taxes applicable to the securities sold for such Person’s account and all reasonable fees and expenses of any legal counsel representing any such Person, other than as set forth in the preceding sentence.

 

9.            Indemnification.

 

(a)            Pubco agrees to (i) indemnify, defend and hold harmless, to the fullest extent permitted by law, each Investor, each Person who controls such Investor (within the meaning of the Securities Act or the Exchange Act) each Investor’s and control Person’s respective officers, directors, members, partners, managers, agents, affiliates and employees from and against all losses, claims, actions, damages, liabilities and expenses (“Losses”) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus, preliminary prospectus, Free-Writing Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of a prospectus, in light of the circumstances under which the statements therein were made), and (ii) pay to each Investor and their respective officers, directors, members, partners, managers, agents, affiliates and employees and each Person who controls such Investor (within the meaning of the Securities Act or the Exchange Act), as incurred, any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, except in each case of (i) or (ii) insofar as the same are caused by or contained in any information furnished in writing to Pubco or any managing underwriter by or on behalf of such Investor expressly for use therein; provided, however, that the indemnity agreement contained in this Section 9 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of Pubco (which consent shall not be unreasonably withheld), or to the extent that such Loss results from an Investor’s initiation of a transaction pursuant to a Registration Statement during a suspension noticed to such Investor by Pubco in accordance with Section 6 hereof. In connection with an underwritten offering, Pubco shall indemnify any underwriters or deemed underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act or the Exchange Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities.

 

(b)            In connection with any Registration Statement in which a holder of Registrable Securities is participating, each such holder shall furnish to Pubco in writing such information relating to such holder as Pubco reasonably requests for use in connection with any such Registration Statement or prospectus and, to the extent permitted by law, shall indemnify Pubco, its officers, directors, employees, agents and representatives and each Person who controls Pubco (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses resulting from any untrue or alleged untrue statement of material fact contained in the Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue or alleged untrue statement or omission is contained in any information so furnished in writing by or on behalf of such holder or to the extent that such Loss results from an Investor’s initiation of a transaction pursuant to a Registration Statement during a suspension noticed to such Investor by Pubco in accordance with Section 6 hereof; provided that the obligation to indemnify shall be individual, not joint and several, for each holder and shall be limited to the net amount of proceeds actually received by such holder from the sale of Registrable Securities pursuant to such Registration Statement.

 

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(c)            Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party in defending such claim) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (as well as one local counsel for each applicable jurisdiction) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. In such instance, the conflicted indemnified parties shall have a right to retain one separate counsel, chosen by the holders of a majority of the Registrable Securities included in the registration, at the expense of the indemnifying party. Notwithstanding anything to the contrary contained herein, Pubco shall not, without the prior written consent of the Person entitled to indemnification, consent to entry of any judgment or enter into any settlement or other compromise with respect to any claim in respect of which indemnification or contribution may be or has been sought hereunder (whether or not any such indemnified Person is an actual or potential party to such action or claim) which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified Persons of a full release from all liability with respect to such claim or which includes any admission as to fault or culpability or failure to act on the part of any indemnified Person.

 

(d)            Each party hereto agrees that, if for any reason the indemnification provisions contemplated by Sections 9(a) or 9(b) are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses (or actions in respect thereof) referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, relates to information supplied by or on behalf of such indemnifying party or indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just or equitable if contribution pursuant to this Section 9(d) were determined by pro rata allocation (even if the holders or any underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 9(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or, except as provided in Section 9(c), defending any such action or claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The sellers’ obligations in this Section 9(d) to contribute shall be several in proportion to the amount of securities registered by them and not joint and shall be limited to an amount equal to the net proceeds actually received by such seller from the sale of Registrable Securities effected pursuant to such registration (less the aggregate amount of any damages or other amounts such Investor has otherwise been required to pay (pursuant to Section 9(b) or otherwise) as a result of any untrue statements, alleged untrue statements, omissions or alleged omissions in connection with such registration).

 

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(e)            The indemnification and contribution provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, manager, agent, representative or controlling Person of such indemnified party and shall survive the transfer of Registrable Securities and the termination or expiration of this Agreement.

 

10.            Participation in Underwritten Registrations. No Person may participate in any registration hereunder which is underwritten unless such Person (a) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements (including, without limitation, pursuant to any over-allotment or “green shoe” option requested by the underwriters; provided that no holder of Registrable Securities shall be required to sell more than the number of Registrable Securities such holder has requested to include) and (b) completes and executes all questionnaires, powers of attorney, custody agreements, stock powers, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements; provided that no holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to Pubco or the underwriters (other than representations and warranties regarding such holder, such holder’s title to the securities, such Person’s authority to sell such securities and such holder’s intended method of distribution) or to undertake any indemnification obligations to Pubco or the underwriters with respect thereto that are materially more burdensome than those provided in Section 9. Each holder of Registrable Securities shall execute and deliver such other agreements as may be reasonably requested by Pubco and the lead managing underwriter(s) that are consistent with such holder’s obligations under Section 4, Section 5 and this Section 10 or that are necessary to give further effect thereto, and Pubco shall execute and deliver such other agreements as may be reasonably requested by the lead managing underwriter(s) (if applicable) in order to effect any registration required hereunder. To the extent that any such agreement is entered into pursuant to, and consistent with, Section 4, Section 9 and this Section 10, the respective rights and obligations created under such agreement shall supersede the respective rights and obligations of the holders, Pubco and the underwriters created pursuant to this Section 10.

 

11.            Other Agreements.

 

(a)            For so long as any Investor holds Registrable Securities that may be sold pursuant to Rule 144 only if Pubco is in compliance with the current public information requirement under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), Pubco will use its commercially reasonable efforts to make and keep public information available, as those terms are understood and defined in Rule 144 and, in furtherance thereof, (i) remain subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act; and (ii) timely file all reports and other materials required to be filed by Section 13 or 15(d) of the Exchange Act, as applicable (provided, that the failure to file Current Reports on Form 8-K, other than the Closing 8-K (as defined in the Business Combination Agreement), shall not be deemed to violate this Section 11(a) to the extent that Rule 144 remains available for the resale of Registrable Securities). Upon reasonable prior written request, Pubco shall deliver to the Investors a customary written statement as to whether it has complied with such requirements.

 

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(b)            The book entries representing the Registrable Securities held by each Investor shall not contain or be subject to any legend restricting the transfer thereof (and the Registrable Securities shall not be subject to any stop transfer or similar instructions or notations): (i) if such Investor provides customary certifications to the effect that it has sold such Registrable Securities shares pursuant to a Registration Statement that is effective and available for the resale thereof, (ii) if at any time on or after the date that is one year after the Form 10 Disclosure Filing Date such Investor provides customary certifications (including, as applicable, of such Investor’s broker) to the effect that it has sold such Registrable Securities shares pursuant to Rule 144, or (iii) if at any time on or after the date that is one year after the Form 10 Disclosure Filing Date such Registrable Securities are eligible for sale under Rule 144(b)(1) as set forth in customary non-affiliate certifications provided by such Investor.

 

12.            Definitions.

 

(a)            “Adverse Disclosure” means any public disclosure of material non-public information, which disclosure, in the good faith judgment of the board of directors of Pubco, after consultation with counsel to Pubco, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (iii) Pubco has a bona fide business purpose for not making such information public.

 

(b)            “Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, its capacity as a sole or managing member or otherwise.

 

(c)            “Applicable Approving Party” means the holders of a majority of the Registrable Securities participating in the applicable offering.

 

(d)            “Block Trade” means any non-marketed underwritten takedown offering taking the form of a bought deal or block sale to a financial institution.

 

(e)            “Business Day” means any day that is not a Saturday or Sunday or a legal holiday in the state in which Pubco’s principal executive office is located or in New York, New York.

 

(f)            “Class A Common Stock” means the Class A common stock of Pubco, par value $0.0001 per share.

 

(g)            “Class B Common Stock” means the Series B-1 common stock, Series B-2 common stock and Series B-3 common stock of Pubco, each par value $0.0001 per share.

 

(h)            “Commission” means the U.S. Securities and Exchange Commission.

 

(i)             “Common Stock” means the Class A Common Stock and Class B Common Stock.

 

(j)             “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.

 

(k)            “Free-Writing Prospectus” means a free-writing prospectus, as defined in Rule 405 of the Securities Act.

 

(l)             “Form 10 Disclosure Filing Date” means the date on which Pubco shall file with the Commission a Current Report on Form 8-K that includes current “Form 10 information” (within the meaning of Rule 144) reflecting Pubco’s status as an entity that is no longer an issuer described in paragraph (i)(1)(i) of Rule 144.

 

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(m)           “Key Individual” means Dale Schwartz.

 

(n)            “Misstatement” means an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.

 

(o)            “New Registration Statement Filing Deadline” means, with respect to any New Registration Statement that may be required pursuant to Section 1(b), (i) the thirtieth (30^th) day following the first date on which such Registrable Securities may then be included in a Registration Statement if such Registration Statement is required to be filed because the Commission shall have informed Pubco that certain Registrable Securities were not eligible for inclusion in a previously filed Registration Statement, or (B) if such New Registration Statement is required for a reason other than as described in clause (i) of this definition, the thirtieth (30th) day following the date on which Pubco first knows that such New Registration Statement is required.

 

(p)            “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other legal entity or business organization and a governmental entity or any department, agency or political subdivision thereof.

 

(q)            “Prospectus” means (i) the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus and (ii) any Free- Writing Prospectus (within the meaning of Rule 405 under the Securities Act) relating to any offering of Registrable Securities pursuant to a Registration Statement.

 

(r)            “Public Offering” means any sale or distribution by Pubco and/or holders of Registrable Securities to the public of Common Stock pursuant to an offering registered under the Securities Act.

 

(s)            “Register,” “Registered” and “Registration” mean a registration effected by preparing and filing a Registration Statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such Registration Statement becoming effective.

 

(t)            “Registrable Securities” means (i) any shares of Class A Common Stock (including any shares of Class A Common Stock issuable upon the conversion of Class B Common Stock or issuable upon exercise of any stock options or warrants or in respect of any other equity awards) held by any of the Investors (ii) any Private Placement Warrants (and any shares of Class A Common Stock issuable upon exercise of the Private Placement Warrants) held by any of the Investors, (iii) any shares of Class A Common Stock issued or issuable upon the exercise, conversion or exchange of, or pursuant to anti-dilution provisions applicable to, securities hereafter issued in exchange or substitution for, or otherwise with respect to, securities referred to in clauses (i) through (ii) by way of reclassification, exchange or otherwise, and (iv) any Class A Common Stock issued or issuable with respect to the securities referred to in the preceding clauses (i) through (iii) by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (x) they have been sold or distributed to the public pursuant to an offering registered under the Securities Act or sold to the public through a broker, dealer or market maker in compliance with Rule 144, (y) when such securities have been repurchased by Pubco or any of its subsidiaries or (z) when such securities have ceased to be outstanding). For purposes of this Agreement, a Person shall be deemed to be a holder of Registrable Securities, and the Registrable Securities shall be deemed to be in existence, whenever such Person holds such Registrable Securities of record or in “street name” or has the right to acquire directly or indirectly such Registrable Securities (upon conversion, exercise or vesting or in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right and, in the case of Registrable Securities issuable upon exercise of options or warrants, assuming the exercise thereof for cash), whether or not such acquisition has actually been effected, and such Person shall be entitled to exercise the rights of a holder of Registrable Securities hereunder; provided a holder of Registrable Securities may only request that Registrable Securities in the form of Class A Common Stock or Private Placement Warrants be registered pursuant to this Agreement. Notwithstanding anything to the contrary contained herein, the holders of Private Placements Warrants, in their capacity as such, shall have no rights under Sections 2 or 3 in respect of such Private Placement Warrants; provided, for the avoidance of doubt, that the foregoing shall not limit or otherwise affect the rights of such holders in respect of the shares of Class A Common Stock for which such Private Placement Warrants are exercisable.

 

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(u)            “Registration Statement” means any registration statement filed by Pubco with the Commission in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering and sale of securities of Pubco, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.

 

(v)            “Rule 144”, “Rule 405” and “Rule 415” mean, in each case, such rule promulgated under the Securities Act (or any successor provision) by the Commission, as the same shall be amended from time to time, or any successor rule then in force.

 

(w)            “Securities Act” means the Securities Act of 1933, as amended from time to time, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.

 

(x)            “Shelf Participant” means any holder of Registrable Securities listed as a selling securityholder in the Resale Shelf Registration Statement or any Shelf Registration or any such holder that could be added to such Resale Shelf Registration Statement or Shelf Registration without the need for a post-effective amendment thereto or added by means of an automatic post-effective amendment thereto.

 

(y)            “Shelf Registration” means a registration statement under the Securities Act on Form S-3 pursuant to Rule 415.

 

13.            Miscellaneous.

 

(a)            No Inconsistent Agreements. Pubco shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates or in any way impairs the rights granted to the Investors in this Agreement.

 

(b)            Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions among the parties hereto, written or oral, with respect to the subject matter hereof, and amends and restates the Prior Agreement its entirety.

 

(c)            Remedies. Any Person having rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties hereto agree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that, in addition to any other rights and remedies existing in its favor, any party shall be entitled to specific performance and/or other injunctive relief from any court of law or equity of competent jurisdiction (without posting any bond or other security) in order to enforce or prevent violation of the provisions of this Agreement.

 

  15  

 

 

(d)            Amendments and Waivers. Except as otherwise provided herein, the provisions of this Agreement may be amended or waived only with the prior written consent of Pubco and the holders of a majority of the Registrable Securities then outstanding; provided, (i) that such majority shall include the Key Individual and the Sponsor, in each case, so long as such Investor holds (including, for the avoidance of doubt, shares of Common Stock underlying any Private Placement Warrants held by such Investor) at least 2% of the outstanding Common Stock on the date of such amendment or waiver, (ii) that such majority shall include BTIG if such amendment or modification materially and adversely affects the rights of BTIG hereunder and (iii) that no amendment may materially and disproportionately adversely affect the rights of any holder of Registrable Securities compared to other holders of Registrable Securities without the consent of such adversely affected holder. Any amendment or waiver effected in accordance with this Section 13(d) shall be binding upon each Investor and Pubco. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

 

(e)            Successors and Assigns. All covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and permitted assigns of the parties hereto whether so expressed or not. In addition, whether or not any express assignment has been made, the provisions of this Agreement which are for the benefit of purchasers or holders of Registrable Securities are also for the benefit of, and enforceable by, any subsequent holder of Registrable Securities and any subsequent holder of securities that are convertible into, or exercisable or exchangeable for, Registrable Securities. Pubco shall not assign its obligations hereunder without the prior written consent of the holders of a majority of the Registrable Securities then outstanding.

 

(f)            Transfer of Rights. An Investor may transfer or assign, in whole or from time to time in part, its rights and obligations under this Agreement in respect of any Registrable Securities to any transferee of such Registrable Securities, provided that such securities remain Registrable Securities after such transfer. Such rights will be transferred to such transferee effective only upon receipt by Pubco of (A) written notice from such Investor stating the name and address of the transferee and identifying the number of Registrable Securities with respect to which rights under this Agreement are being transferred and the nature of the rights so transferred), and (B) except in the case of a transfer to an existing Investor, a written agreement from such transferee to be bound by the terms of this Agreement. A transferee of Registrable Securities that satisfies the conditions set forth in this Section 13(f) shall henceforth be an “Investor” for purposes of this Agreement. In the event a holder transfers Registrable Securities included on a Registration Statement and such Registrable Securities remain Registrable Securities following such transfer, at the request of such holder, Pubco shall use its commercially reasonable best efforts to amend or supplement the Resale Shelf Registration Statement as may be necessary in order to enable such transferee to offer and sell such Registrable Securities pursuant to such Resale Shelf Registration Statement; provided that in no event shall Pubco be required to file a post-effective amendment to the Resale Shelf Registration Statement unless Pubco receives a written request from the subsequent transferee, requesting that its shares of Common Stock be included in the Resale Shelf Registration Statement, with all information reasonably requested by Pubco. Notwithstanding the foregoing, upon a full distribution-in-kind by the Sponsor to its members, the rights of the Sponsor hereunder may be exercised in full by the recipients of such distribution holding a majority-in-interest of the Registrable Securities so distributed.

 

(g)            Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid, illegal or unenforceable in any respect under any applicable law, such provision shall be ineffective only to the extent of such prohibition, invalidity, illegality or unenforceability, without invalidating the remainder of this Agreement.

 

  16  

 

 

(h)            Counterparts. This Agreement may be executed simultaneously in counterparts (including by means of facsimile, electronic mail, portable data format (PDF) or other electronic signature pages), any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement.

 

(i)             Descriptive Headings; Interpretation. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. Unless the context otherwise required: (i) the use of the word “including” herein shall mean “including without limitation,” (ii) all references to Sections, Schedules or Exhibits are to Sections, Schedules or Exhibits contained in or attached to this Agreement, and (iii) words in the singular or plural include the singular and plural, and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter.

 

(j)             Governing Law; Jurisdiction. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in any Delaware Chancery Court, or if such court does not have subject matter jurisdiction, any court of the United States located in the State of Delaware. Each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.

 

(k)            Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by or email or by registered or certified mail (postage prepaid, return receipt requested) to each Investor at the address indicated on the Schedule of Investors attached hereto and to Pubco at the address indicated below (or at such other address as shall be specified in a notice given in accordance with this Section 13(l)):

 

Pinstripes Holdings, Inc.

1150 Willow Road

Northbrook, IL 60062

Email: dale@pinstripes.com

Attention: Dale Schwartz

 

with a copy to:

 

Katten Muchin Rosenman LLP

525 W. Monroe St.

Chicago, IL 60661

Attention: Mark Wood; Elizabeth McNichol

Email:mark.wood@katten.com;

elizabeth.mcnichol@katten.com

 

  17  

 

 

(l)            Mutual Waiver of Jury Trial. As a specifically bargained inducement for each of the parties to enter into this Agreement (with each party having had opportunity to consult counsel), each party hereto expressly and irrevocably waives the right to trial by jury in any lawsuit or legal proceeding relating to or arising in any way from this Agreement or the transactions contemplated herein, and any lawsuit or legal proceeding relating to or arising in any way to this Agreement or the transactions contemplated herein shall be tried in a court of competent jurisdiction by a judge sitting without a jury.

 

(m)           No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

 

* * * * *

 

  18  

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Registration Rights Agreement as of the date first written above.

 

	PINSTRIPES HOLDINGS, INC.
	By:	/s/ Dale Schwartz
	Name:	Dale Schwartz
	Title:	CEO
	INVESTORS:
	BANYAN ACQUISITION SPONSOR LLC
	By:	/s/ Jerry Hyman
	Name:	Jerry Hyman
	Title:	Authorized Signatory

 

/s/ Keith Jaffee
Keith Jaffee
/s/ Jerry Hyman
Jerry Hyman
/s/ Bruce Lubin
Bruce Lubin
/s/ Kimberley Gill Rimsza
Kimberley Gill Rimsza
/s/ Otis Carter Otis Carter
/s/ George Courtot
George Courtot
Brett Biggs
Brett Biggs   /s/ Matt Jaffee
Matt Jaffee   /s/ Peter Cameron
Peter Cameron

 

  19  

 

 

/s/ Dale Schwartz
Dale Schwartz
/s/ Dan Goldberg
Dan Goldberg
/s/ Jack Greenberg
Jack Greenberg
/s/ Larry Kadis
Larry Kadis
/s/ Diane Aigotti Diane Aigotti
/s/ George Koutsogiorgas
George Koutsogiorgas
/s/ Anthony Querciagrossa
Anthony Querciagrossa

 

	BTIG, LLC
	By:	/s/ Paul Wood
	Name:	Paul Wood
	Title:	Managing Director
	I-BANKERS SECURITIES, INC.
	By:	/s/ Shelley Leonard
	Name:	Shelley Leonard
	Title:	President

 

  20  

 

 

SCHEDULE OF INVESTORS

 

Investor	Address
Banyan Acquisition Sponsor LLC
BTIG, LLC
I-Bankers Securities, Inc.
Keith Jaffee
Jerry Hyman
Bruce Lubin
Kimberly Gill Rimsza
Otis Carter
George Courtot
Brett Biggs
Matt Jaffee
Peter Cameron
Dale Schwartz
Dan Goldberg
Jack Greenberg
Larry Kadis
Diane Aigotti
Yorgo Koutsogiorgas
Anthony Querciagrossa

 

     

 

 

Non-Redemption Parties

 

Investor	Address
Polar Multi-Strategy Master Fund
Highbridge Tactical Credit Master Fund, L.P.
Highbridge Tactical Credit Institutional Fund, Ltd.
TQ Master Fund LP
Walleye Opportunities Master Fund Ltd
Walleye Investments Fund LLC
Crestline Summit Master, SPC - Peak SP
Crestline Summit Master, SPC - Crestline Summit APEX SP
Omega Capital Partners, LP
RLH SPAC Fund LP
Perga Capital Partners, LP
TQ Master Fund LP
Kepos Alpha Master Fund LP
Kepos Special Opportunities Master Fund L.P.
Fir Tree Value Master Fund LP
Fir Tree Capital Opportunity Master Fund III, LP
FX SOF XIII (SPAC) Holdings, LLC
BOSTON PATRIOT MERRIMACK ST, LLC
Radcliffe SPAC Master Fund, L.P.
Sea Otter Trading LLC
AQR Absolute Return Master Account, L.P.
AQR SPAC Opportunities Offshore Fund, L.P.
AQR Funds – AQR Diversified Arbitrage Fund
AQR Global Alternative Investment Offshore Fund, L.P.– SPACs Sleeve
Walleye Investments Fund LLC
Walleye Opportunities Master Fund Ltd
Sea Hawk Multi-Strategy Master Fund Ltd.
Morgan Creek – Exos SPAC+ Fund, LP

 

   2  

 

 

AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT JOINDER

 

The undersigned is executing and delivering this Joinder pursuant to the Amended and Restated Registration Rights Agreement dated as of December 29, 2023 (as the same may hereafter be amended, the “Registration Rights Agreement”), among Pinstripes Holdings, Inc. (formerly known as Banyan Acquisition Corporation), a Delaware corporation (“Pubco”), and the other persons named as parties therein.

 

By executing and delivering this Joinder to Pubco, the undersigned hereby agrees to become a party to, to be bound by, and to comply with the provisions of the Registration Rights Agreement as a holder of Registrable Securities in the same manner as if the undersigned were an original signatory to the Registration Rights Agreement.

 

Accordingly, the undersigned has executed and delivered this Joinder as of the ___ day of ________, 20__.

 

	INVESTOR:
	[●]
	By:
	Its:
	Address for Notices: [●]
	[●]
	[●]
	[●]
	Agreed and Accepted as of _________________
	PINSTRIPES HOLDINGS, INC.
	By:
	Its:

 

     

 

EX-10.13

 

Exhibit 10.13

 

PINSTRIPES HOLDINGS, INC.

 

2023 OMNIBUS EQUITY INCENTIVE PLAN

 

Article I
PURPOSE

 

The purpose of this Pinstripes Holdings, Inc. 2023 Omnibus Equity Incentive Plan, as amended from time to time (the “Plan”) is to promote the success of the business of the Company for the benefit of its stockholders by enabling the Company to offer Eligible Individuals equity and equity-based incentives in order to attract, retain and reward such individuals and strengthen the mutuality of interests between such individuals and the Company’s stockholders. This Plan is effective as of the date set forth in Article XV.

 

Article II
DEFINITIONS

 

For purposes of this Plan, the following terms shall have the following meanings:

 

2.1            “Affiliate” means a corporation or other entity controlled by, controlling or under common control with the Company. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied to any person, means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of such person, whether through the ownership of voting or other securities, by contract or otherwise.

 

2.2            “Applicable Law” means the requirements relating to the administration of equity-based awards and the related shares under U.S. state corporate law, U.S. federal and state securities laws, the rules of any stock exchange or quotation system on which the shares are listed or quoted and any other applicable laws of any U.S. or non-U.S. jurisdictions where Awards are, or will be, granted under this Plan.

 

2.3            “Award” means any award under this Plan of any Stock Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Units, Performance Award and Other Stock-Based Awards. All Awards shall be evidenced by and subject to the terms of an Award Agreement.

 

2.4            “Award Agreement” means the written or electronic agreement, contract, certificate, or other instrument or document evidencing the terms and conditions of an individual Award. Each Award Agreement shall be subject to the terms and conditions of this Plan.

 

2.5            “Board” means the Board of Directors of the Company.

 

2.6            “Business Combination Agreement” means that certain Business Combination Agreement dated as of June 22, 2023, as amended from time to time, by and among the Company (f/k/a Banyan Acquisition Corporation), a Delaware corporation, Panther Merger Sub, Inc., a Delaware corporation, and Pinstripes.

 

 

 

 

2.7            “Cause” means, unless otherwise determined by the Committee in the applicable Award Agreement, with respect to a Participant’s Termination of Service, the following: (a) in the case where there is no employment agreement, offer letter, consulting agreement, change in control agreement or similar agreement in effect between the Company or an Affiliate and the Participant at the time of the grant of the Award (or where there is such agreement in effect but it does not define “cause” (or words of like import)), the Participant’s (i) conviction of, or plea of guilty or no contest to, a felony or a crime involving moral turpitude or the commission of any other act involving willful malfeasance or material fiduciary breach with respect to the Company or an Affiliate; (ii) substantial and repeated failure to perform duties as reasonably directed by the person to whom the Participant reports directly or indirectly, which failure continues for a period of thirty (30) days after the Company provides written notice of such failure; (iii) immoral or unlawful conduct that brings or is reasonably likely to bring the Company or an Affiliate negative publicity or into public disgrace, embarrassment or disrepute; (iv) gross negligence or willful misconduct with respect to the Company or an Affiliate; (v) material violation of the Company’s written policies or codes of conduct, including written policies related to discrimination, harassment, performance of illegal or unethical activities or ethical misconduct; or (vi) material any breach of any non-competition, non-solicitation, no-hire or confidentiality covenant between the Participant and the Company or an Affiliate; or (b) in the case where there is an employment agreement, offer letter, consulting agreement, change in control agreement, or similar agreement in effect between the Company or an Affiliate and the Participant at the time of the grant of the Award that defines “cause” (or words of like import), “cause” as defined under such agreement.

 

2.8            “Change in Control” means and includes each of the following, unless otherwise determined by the Committee in the applicable Award Agreement or other written agreement with a Participant approved by the Committee:

 

(a)            any “person,” as such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the Company), becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities, excluding for purposes herein, acquisitions pursuant to a Business Combination (as defined below) that does not constitute a Change in Control as defined in Section 2.8(b);

 

(b)            a merger, reorganization or consolidation of the Company or in which equity securities of the Company are issued (each, a “Business Combination”); provided, however, that (i) neither a merger, reorganization or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its direct or indirect Parent) more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity (or, as applicable, a direct or indirect Parent of the Company or such surviving entity) outstanding immediately after such merger or consolidation; nor (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person (other than those described in the first parenthetical in Section 2.8(a)) acquires more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities shall not constitute a Change in Control;

 

(c)            during the period of two (2) consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 2.8(a) or (b)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of the two (2) year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or

 

 

 

 

(d)            a complete liquidation or dissolution of the Company or the consummation of a sale or disposition by the Company of all or substantially all of the Company’s assets other than the sale or disposition of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, fifty percent (50%) or more of the combined voting power of the outstanding voting securities of the Company at the time of the sale or disposition.

 

For purposes of this Section 2.8, acquisitions of securities of the Company by Dale Schwartz, any of his affiliates (including any related trust), or any investment vehicle or fund controlled by or managed by, or otherwise affiliated with Dale Schwartz shall not constitute a Change in Control.

 

Notwithstanding the foregoing, with respect to any Award that is characterized as “nonqualified deferred compensation” within the meaning of Section 409A of the Code, an event shall not be considered to be a Change in Control under this Plan for purposes of payment of such Award unless such event is also a “change in ownership,” a “change in effective control,” or a “change in the ownership of a substantial portion of the assets” of the Company within the meaning of Section 409A of the Code.

 

2.9              “Change in Control Price” means the highest price per Share paid in any transaction related to a Change in Control as determined by the Committee in its discretion.

 

2.10            “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time. Any reference to any section of the Code shall also be a reference to any successor provision and any guidance and treasury regulation promulgated thereunder.

 

2.11            “Committee” means any committee of the Board duly authorized by the Board to administer this Plan; provided, however, that unless the Committee consists solely of two or more Qualified Members, grants intended to qualify for the exemption under Rule 16b-3 shall be instead approved by the Board or a separate sub-committee of two or more Qualified Members. If no committee is duly authorized by the Board to administer this Plan, the term “Committee” shall be deemed to refer to the Board for all purposes under this Plan. The Board may abolish any Committee or re-vest in itself any previously delegated authority from time to time, and will retain the right to exercise the authority of the Committee to the extent consistent with Applicable Law.

 

2.12            “Common Stock” means the common stock, $0.0001 par value per share, of the Company.

 

2.13            “Company” means Pinstripes Holdings, Inc. (f/k/a Banyan Acquisition Corporation), a Delaware corporation, and its successors by operation of law.

 

2.14            “Consultant” means any natural person who is an advisor or consultant to the Company or any of its Affiliates. Notwithstanding the foregoing, a person shall be treated as a Consultant under this Plan only if a Form S-8 Registration Statement under the Securities Act is available to register the offer and the sale of the Company’s securities to such person.

 

2.15            “Disability” means, unless otherwise determined by the Committee in the applicable Award Agreement, with respect to a Participant’s Termination of Service, that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, after accounting for reasonable accommodations (if applicable and required by Applicable Law), provided, however, for purposes of an Incentive Stock Option, the term Disability shall have the meaning ascribed to it under Section 22(e)(3) of the Code. The determination of whether an individual has a Disability shall be determined by the Committee, and the Committee may rely on any determination that a Participant is disabled for purposes of benefits under any long-term disability plan in which a Participant participates that is maintained by the Company or any Affiliate.

 

 

 

 

2.16            “Dividend Equivalents” means a right granted to a Participant under this Plan to receive the equivalent value (in cash or Shares) of dividends paid on Shares.

 

2.17            “Effective Date” means the effective date of this Plan as defined in Article XV.

 

2.18            “Eligible Employee” means each employee of the Company or any of its Affiliates. An employee on a leave of absence may be an Eligible Employee.

 

2.19            “Eligible Individual” means an Eligible Employee, Non-Employee Director or Consultant who is designated by the Committee in its discretion as eligible to receive Awards subject to the terms and conditions set forth herein.

 

2.20            “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and all rules and regulations promulgated thereunder. Reference to a specific section of the Exchange Act or regulation thereunder shall include such section or regulation, any valid regulation or interpretation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or regulation.

 

2.21            “Fair Market Value” means, for purposes of this Plan, unless otherwise required by any applicable provision of the Code or any regulations issued thereunder, as of any date (a) the closing (last sale) price reported for the Common Stock on the applicable date on the principal national securities exchange or other trading market in the United States on which the Common Stock is then publicly traded, or (b) if the Common Stock is not so publicly traded, the Committee shall determine in good faith the Fair Market Value in whatever manner it considers appropriate taking into account the requirements of Section 409A of the Code. For purposes of the grant of any Award subject to clause (a) of the immediately preceding sentence, the applicable date shall be the trading day for Common Stock immediately prior to the date on which the Award is granted. For purposes of the exercise of any Award, the applicable date shall be the date a notice of exercise is received by the Committee or, if not a date on which the applicable market is open, the next day that it is open.

 

2.22            “Family Member” means “family member” as defined in Section A.1.(a)(5) of the general instructions of Form S-8.

 

2.23            “Incentive Stock Option” means any Stock Option that is awarded to an Eligible Employee who is an employee of the Company, its Subsidiaries or its Parents (if any) under this Plan and that is intended to be, and designated in the Award Agreement as, an “Incentive Stock Option” within the meaning of Section 422 of the Code.

 

2.24            “Non-Employee Director” means a director or a member of the Board who is not an employee of the Company.

 

2.25            “Non-Qualified Stock Option” means any Stock Option awarded under this Plan that is not an Incentive Stock Option.

 

2.26            “Other Stock-Based Award” means an Award granted under Article X of this Plan that is valued in whole or in part by reference to, or is payable in or otherwise based on, Shares.

 

2.27            “Parent” means any parent corporation of the Company within the meaning of Section 424(e) of the Code.

 

 

 

 

2.28            “Participant” means an Eligible Individual to whom an Award has been granted pursuant to this Plan.

 

2.29            “Performance Award” means an Award granted under Article IX hereof contingent upon achieving certain Performance Goals.

 

2.30            “Performance Goals” means goals established by the Committee as contingencies for Awards to vest and/or become exercisable or distributable.

 

2.31            “Performance Period” means the designated period during which the Performance Goals must be satisfied with respect to the Award to which the Performance Goals relate.

 

2.32            “Pinstripes” means Pinstripes, Inc., a Delaware corporation, together with its subsidiary entities, prior to the transactions effectuated by the Business Combination Agreement.

 

2.33            “Qualified Member” means a member of the Board who is (a) a “non-employee director” within the meaning of Rule 16b-3(b)(3), and (b) “independent” under the listing standards or rules of the securities exchange upon which the Common Stock is traded, but only to the extent such independence is required in order to take the action at issue pursuant to such standards or rules.

 

2.34            “Restricted Stock” means an Award of Shares granted under Article VIII of this Plan.

 

2.35            “Restricted Stock Unit” means an unfunded, unsecured right to receive, on the applicable settlement date, one Share or an amount in cash or other consideration determined by the Committee to be of equal value as of such settlement date, subject to certain vesting conditions and other restrictions.

 

2.36            “Restriction Period” has the meaning set forth in Section 8.3(a).

 

2.37            “Rule 16b-3” means Rule 16b-3 under Section 16(b) of the Exchange Act as then in effect or any successor provision.

 

2.38            “Section 409A of the Code” means the nonqualified deferred compensation rules under Section 409A of the Code and any applicable treasury regulations and other official guidance thereunder.

 

2.39            “Securities Act” means the Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder. Reference to a specific section of the Securities Act or regulation thereunder shall include such section or regulation, any valid regulation or interpretation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or regulation.

 

2.40            “Shares” means shares of Common Stock.

 

2.41            “Stock Appreciation Right” means a stock appreciation right granted under Article VII of this Plan.

 

2.42            “Stock Option” or “Option” means any option to purchase Shares granted pursuant to Article VI of this Plan.

 

2.43            “Subsidiary” means any subsidiary corporation of the Company within the meaning of Section 424(f) of the Code.

 

 

 

 

2.44            “Ten Percent Stockholder” means a person owning stock representing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company, its Subsidiaries or its Parents.

 

2.45            “Termination of Service” means the termination of the applicable Participant’s employment with, or performance of services for, the Company and its Affiliates. Unless otherwise determined by the Committee, (a) if a Participant’s employment or services with the Company and its Affiliates terminates but such Participant continues to provide services to the Company and its Affiliates in a non-employee capacity, such change in status shall not be deemed a Termination of Service with the Company and its Affiliates and (b) a Participant employed by, or performing services for an Affiliate that ceases to be an Affiliate shall also be deemed to have incurred a Termination of Service provided the Participant does not immediately thereafter become an employee of the Company or another Affiliate. Notwithstanding the foregoing provisions of this definition, with respect to any Award that constitutes a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code, a Participant shall not be considered to have experienced a “Termination of Service” unless the Participant has experienced a “separation from service” within the meaning of Section 409A of the Code.

 

Article III
ADMINISTRATION

 

3.1            Authority of the Committee. This Plan shall be administered by the Committee. Subject to the terms of this Plan and Applicable Law, the Committee shall have full discretionary authority to grant Awards to Eligible Individuals under this Plan. In particular, the Committee shall have full discretionary authority to:

 

(a)            determine whether and to what extent Awards, or any combination thereof, are to be granted hereunder to one or more Eligible Individuals;

 

(b)            determine the number of Shares to be covered by each Award granted hereunder;

 

(c)            determine the terms and conditions, not inconsistent with the terms of this Plan, of any Award granted hereunder (including, but not limited to, the exercise or purchase price (if any), any restriction or limitation, any vesting schedule or acceleration thereof or any forfeiture restrictions or waiver thereof, regarding any Award and the Shares, if any, relating thereto, based on such factors, if any, as the Committee shall determine, in its sole discretion);

 

(d)            determine the amount of cash, if any, to be covered by each Award granted hereunder;

 

(e)            determine whether, to what extent, and under what circumstances grants of Options and other Awards under this Plan are to operate on a tandem basis and/or in conjunction with or apart from other awards made by the Company outside of this Plan;

 

(f)            determine whether and under what circumstances an Award may be settled in cash, Shares, other property or a combination of the foregoing;

 

(g)            determine whether, to what extent and under what circumstances cash, Shares or other property and other amounts payable with respect to an Award under this Plan shall be deferred either automatically or at the election of the Participant;

 

 

 

 

(h)            modify, waive, amend or adjust the terms and conditions of any Award, at any time or from time to time, including but not limited to Performance Goals;

 

(i)             determine whether a Stock Option is an Incentive Stock Option or Non-Qualified Stock Option;

 

(j)             determine whether to require a Participant, as a condition of the granting of any Award, to not sell or otherwise dispose of Shares acquired pursuant to the exercise or vesting of an Award for a period of time as determined by the Committee, in its sole discretion, following the date of the acquisition of such Award or Shares; and

 

(k)            modify, extend or renew an Award, subject to Article XII and Section 6.3(l) or otherwise make such determinations or take such actions which the Committee determines, in its discretion, are consistent with the Plan or any Award Agreement.

 

3.2            Guidelines. Subject to Article XII hereof, the Committee shall have the full discretionary authority to: adopt, alter and repeal such administrative rules, guidelines and practices governing this Plan and perform all acts, including the delegation of its responsibilities (to the extent permitted by Applicable Law), as it shall, from time to time, deem advisable; to construe and interpret the terms and provisions of this Plan, any Award Agreement and any Award issued under this Plan (and any agreements or sub-plans relating thereto); and to otherwise supervise the administration of this Plan and any Award, and make determinations with regard to the Plan, any Award Agreement and any Award. The Committee may correct any defect, supply any omission or reconcile any inconsistency in this Plan or in any agreement relating thereto in the manner and to the extent it shall deem necessary to effectuate the purpose and intent of this Plan. The Committee may adopt special rules, sub- plans, guidelines and provisions for persons who are residing in or employed in, or subject to, the taxes of any domestic or foreign jurisdictions to satisfy or accommodate applicable foreign laws or to qualify for preferred tax treatment of such domestic or foreign jurisdictions.

 

3.3            Decisions Final. Any decision, interpretation or other action made or taken in good faith by or at the direction of the Company, the Board or the Committee (or any of its members) arising out of or in connection with this Plan shall be within the absolute discretion of all and each of them, as the case may be, and shall be final, binding and conclusive on the Company and all employees and Participants and their respective heirs, executors, administrators, successors and assigns.

 

3.4            Designation of Consultants/Liability; Delegation of Authority.

 

(a)            The Committee may engage such legal counsel, consultants and agents as it may deem desirable for the administration of this Plan and may rely upon any opinion received from any such counsel or consultant and any computation received from any such consultant or agent. Expenses incurred by the Committee or the Board in the engagement of any such counsel, consultant or agent shall be paid by the Company.

 

(b)            The Committee, its members and any person designated pursuant to sub-section (c) below shall not be liable for any action or determination made in good faith with respect to this Plan. To the maximum extent permitted by Applicable Law, no officer of the Company or member or former member of the Committee or of the Board shall be liable for any action or determination made in good faith with respect to this Plan or any Award granted under it.

 

 

 

 

(c)            The Committee may delegate any or all of its powers and duties under this Plan to a subcommittee of directors or to any officer of the Company, including the power to perform administrative functions (including executing agreements or other documents on behalf of the Committee) and grant Awards; provided, that such delegation does not (i) violate Applicable Law, or (ii) result in the loss of an exemption under Rule 16b-3(d)(1) for Awards granted to Participants subject to Section 16 of the Exchange Act in respect of the Company. Upon any such delegation, all references in this Plan to the “Committee,” shall be deemed to include any subcommittee or officer of the Company to whom such powers have been delegated by the Committee. Any such delegation shall not limit the right of such subcommittee members or such an officer to receive Awards; provided, however, that any such officer may not grant Awards to himself or herself, a member of the Board or any executive officer of the Company or an Affiliate, or take any action with respect to any Award previously granted to himself or herself, a member of the Board, or any executive officer of the Company or an Affiliate. The Committee may also designate employees or professional advisors who are not executive officers of the Company or members of the Board to assist in administering this Plan, provided, however, that such individuals may not be delegated the authority to grant or modify any Awards that will, or may, be settled in Shares.

 

3.5            Indemnification. To the maximum extent permitted by Applicable Law and to the extent not covered by insurance directly insuring such person, each current and former officer or employee of the Company or any of its Affiliates and member or former member of the Committee or the Board shall be indemnified and held harmless by the Company against any cost or expense (including reasonable fees of counsel acceptable to the Committee) or liability (including any sum paid in settlement of a claim with the approval of the Committee), and advanced amounts necessary to pay the foregoing at the earliest time and to the fullest extent permitted, arising out of any act or omission to act in connection with the administration of this Plan, except to the extent arising out of such officer’s, employee’s, member’s or former member’s own fraud or bad faith. Such indemnification shall be in addition to any right of indemnification the current employees, officers, directors or members or former employees, officers, directors or members may have under Applicable Law, under the charter or by-laws of the Company or any of its Affiliates or under an agreement to which any such person is a party. Notwithstanding anything else herein, this indemnification will not apply to the actions or determinations made by an individual with regard to Awards granted to such individual under this Plan.

 

Article IV
SHARE LIMITATION

 

4.1            Shares. The aggregate number of Shares that may be issued or used for reference purposes or with respect to which Awards may be granted under this Plan shall not exceed 12,900,000 Shares (subject to any increase or decrease pursuant to this Article IV), which may be either authorized and unissued Shares or Shares held in or acquired for the treasury of the Company or both. The number of Shares that may be issued or used for reference purposes or with respect to which Awards may be granted under this Plan shall be subject to an annual increase on the first day of each fiscal year of the Company, commencing with fiscal year 2025, to a number of Shares equal to (a) 15% of the aggregate number of Shares outstanding on the final day of the immediately preceding fiscal year on a fully diluted basis (inclusive of all outstanding Awards granted pursuant to this Plan as of such last day and, if applicable, all outstanding purchase rights pursuant to an employee stock purchase plan maintained by the Company as of such last day), or (b) such smaller number of Shares as is determined by the Board. The aggregate number of Shares that may be issued or used with respect to any Incentive Stock Option shall not exceed 10,000,000 Shares (subject to any increase or decrease pursuant to Section 4.3). The aggregate value of Awards granted during a single fiscal year to any Non-Employee Director, taken together with any cash fees paid or to be paid to that Non-Employee Director during the fiscal year and the value of Awards granted to the Non-Employee Director under any other equity compensation plan of the Company during the fiscal year, shall not exceed a total value of $300,000 (calculating the value of any Awards based on the grant date fair value for financial reporting purposes). Notwithstanding anything to the contrary contained herein, Shares subject to an Award under this Plan shall again be made available for issuance or delivery under this Plan if such Shares are (i) Shares tendered in payment of an Option, (ii) Shares delivered or withheld by the Company to satisfy any tax withholding obligation, (iii) Shares covered by a stock-settled Stock Appreciation Right or other Awards that were not issued upon the settlement of the Award, or (iv) Shares subject to an Award that expires or is canceled, forfeited or terminated without issuance of the full number of Shares to which the Award related.

 

 

 

 

4.2            Substitute Awards. In connection with an entity’s merger or consolidation with the Company or the Company’s acquisition of an entity’s property or stock, the Committee may grant Awards in substitution for any options or other stock or stock-based awards granted before such merger or consolidation by such entity or its Affiliate (“Substitute Awards”). Substitute Awards may be granted on such terms as the Committee deems appropriate, notwithstanding limitations on Awards in this Plan. Substitute Awards will not count against the Shares authorized for grant under this Plan (nor shall Shares subject to a Substitute Award be added to the Shares available for Awards under this Plan as provided under Section 4.1 above), except that Shares acquired by exercise of substitute Incentive Stock Options will count against the maximum number of Shares that may be issued pursuant to the exercise of Incentive Stock Options under this Plan, as set forth in Section 4.1 above. Additionally, in the event that a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines has shares available under a pre-existing plan approved by stockholders and not adopted in contemplation of such acquisition or combination, the shares available for grants pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may be used for Awards under this Plan and shall not reduce the Shares authorized for grant under this Plan (and Shares subject to such Awards shall not be added to the Shares available for Awards under this Plan as provided under Section 4.1 above); provided, however, that Awards using such available shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not Eligible Employees or Non-Employee Directors prior to such acquisition or combination. Without limiting the foregoing, stock options which are “Company Stock Options,” as defined in the Business Combination Agreement, shall be assumed by the Company and substituted with Options to purchase Shares pursuant to this Plan, in accordance with and subject to the terms and conditions specified in the Business Combination Agreement and any Award Agreement applicable to such substitute Option.

 

4.3            Adjustments.

 

(a)            The existence of this Plan and the Awards granted hereunder shall not affect in any way the right or power of the Board or the stockholders of the Company to make or authorize (i) any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, (ii) any merger or consolidation of the Company or any Affiliate, (iii) any issuance of notes, bonds, debentures or preferred or prior preference stock ahead of or affecting the Shares, (iv) the dissolution or liquidation of the Company or any Affiliate, (v) any sale or transfer of all or part of the assets or business of the Company or any Affiliate, or (vi) any other corporate act or proceeding.

 

(b)            Subject to the provisions of Section 11.1:

 

(i)            If the Company at any time subdivides (by any split, recapitalization or otherwise) the outstanding Shares into a greater number of Shares, or combines (by reverse split, combination or otherwise) its outstanding Shares into a lesser number of Shares, then the respective exercise prices for outstanding Awards that provide for a Participant-elected exercise and the number of Shares covered by outstanding Awards shall be appropriately adjusted by the Committee to prevent dilution or enlargement of the rights granted to, or available for, Participants under this Plan; provided, that the Committee in its sole discretion shall determine whether an adjustment is appropriate.

 

 

 

 

(ii)           Excepting transactions covered by Section 4.3(b)(i), if the Company effects any merger, consolidation, statutory exchange, spin-off, reorganization, sale or transfer of all or substantially all the Company’s assets or business, or other corporate transaction or event in such a manner that the Company’s outstanding Shares are converted into the right to receive (or the holders of Common Stock are entitled to receive in exchange therefor), either immediately or upon liquidation of the Company, securities or other property of the Company or other entity, then, subject to the provisions of Section 11.1, (A) the aggregate number or kind of securities that thereafter may be issued under this Plan, (B) the number or kind of securities or other property (including cash) to be issued pursuant to Awards granted under this Plan (including as a result of the assumption of this Plan and the obligations hereunder by a successor entity, as applicable), and/or (C) the exercise or purchase prices thereof (as applicable), shall be appropriately adjusted by the Committee to prevent dilution or enlargement of the rights granted to, or available for, Participants under this Plan.

 

(iii)          If there shall occur any change in the capital structure of the Company other than those covered by Section 4.3(b)(i) or 4.3(b)(ii), any conversion, any adjustment or any issuance of any class of securities convertible or exercisable into, or exercisable for, any class of equity securities of the Company, then the Committee shall adjust any Award and make such other adjustments to this Plan to prevent dilution or enlargement of the rights granted to, or available for, Participants under this Plan.

 

(iv)          In the event of any pending stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other extraordinary transaction or change affecting the Shares or the Share price, including any securities offering or other similar transaction, for administrative convenience, the Committee may refuse to permit the exercise of any Award for up to sixty (60) days before or after such transaction.

 

(v)           The Committee may adjust the Performance Goals applicable to any Awards to reflect any unusual or non-recurring events and other extraordinary items, impact of charges for restructurings, discontinued operations and the cumulative effects of accounting or tax changes, each as defined by generally accepted accounting principles or as identified in the Company’s financial statements, notes to the financial statements, management’s discussion and analysis or other Company public filing.

 

(vi)          Any such adjustment determined by the Committee pursuant to this Section 4.3(b) shall be final, binding and conclusive on the Company and all Participants and their respective heirs, executors, administrators, successors and permitted assigns. Any adjustment to, or assumption or substitution of, an Award under this Section 4.3(b) shall be intended to comply with the requirements of Section 409A of the Code and Treasury Regulation §1.424-1 (and any amendments thereto), to the extent applicable. Except as expressly provided in this Section 4.3 or in the applicable Award Agreement, a Participant shall have no additional rights under this Plan by reason of any transaction or event described in this Section 4.3.

 

 

 

 

Article V
ELIGIBILITY

 

5.1            General Eligibility. All current and prospective Eligible Individuals are eligible to be granted Awards. Eligibility for the grant of Awards and actual participation in this Plan shall be determined by the Committee in its sole discretion. No Eligible Individual will automatically be granted any Award under this Plan.

 

5.2            Incentive Stock Options. Notwithstanding the foregoing, only Eligible Employees who are employees of the Company, its Subsidiaries or its Parents (if any) are eligible to be granted Incentive Stock Options under this Plan. Eligibility for the grant of an Incentive Stock Option and actual participation in this Plan shall be determined by the Committee in its sole discretion.

 

5.3            General Requirement. The vesting and exercise of Awards granted to a prospective Eligible Individual are conditioned upon such individual actually becoming an Eligible Employee, Consultant, or Non-Employee Director, as applicable.

 

Article VI
STOCK OPTIONS

 

6.1            Options. Stock Options may be granted alone or in addition to other Awards granted under this Plan. Each Stock Option granted under this Plan shall be of one of two types: (a) an Incentive Stock Option or (b) a Non-Qualified Stock Option. Unless otherwise specifically stated in an Award Agreement, a Stock Option granted to a Participant shall be a Non-Qualified Stock Option. To the extent that an Incentive Stock Option granted to a Participant does not meet the federal income requirements and the requirements of the Plan for constituting such an Incentive Stock Option, such Stock Option shall be a Non-Qualified Stock Option.

 

6.2            Grants. The Committee shall have the authority to grant to any Eligible Individual one or more Incentive Stock Options, Non-Qualified Stock Options or both types of Stock Options; provided, however, that Incentive Stock Options may only be granted to an Eligible Employee who is an employee of the Company, its Subsidiaries or its Parents (if any). The Committee shall have the authority to grant any Consultant or Non-Employee Director one or more Non-Qualified Stock Options. To the extent that any Stock Option does not qualify as an Incentive Stock Option (whether because of its provisions or the time or manner of its exercise or otherwise), such Stock Option or the portion thereof which does not so qualify shall constitute a separate Non-Qualified Stock Option.

 

6.3            Terms of Options. Options granted under this Plan shall be evidenced by an Award Agreement and subject to the following terms and conditions and shall be in such form and contain such additional terms and conditions not inconsistent with the terms of this Plan, as the Committee shall deem desirable:

 

(a)            Exercise Price. The exercise price per Share subject to a Stock Option shall be determined by the Committee at the time of grant, provided that the per Share exercise price of a Stock Option shall not be less than 100% (or, in the case of an Incentive Stock Option granted to a Ten Percent Stockholder, 110%) of the Fair Market Value at the time of grant. Notwithstanding the foregoing, in the case of a Stock Option that is a Substitute Award, the exercise price per Share for such Stock Option may be less than the Fair Market Value on the date of grant; provided, that, such exercise price is determined in a manner consistent with the provisions of Section 409A of the Code and, if applicable, Section 424(a) of the Code.

 

 

 

 

(b)            Stock Option Term. The term of each Stock Option shall be fixed by the Committee, provided that no Stock Option shall be exercisable more than ten (10) years (or, in the case of an Incentive Stock Option granted to a Ten Percent Stockholder, five (5) years) after the date on which the Option is granted.

 

(c)            Exercisability. Unless otherwise provided by the Committee in accordance with the provisions of this Section 6.3, Stock Options granted under this Plan shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee at the time of grant. The Committee may, but shall not be required to, provide for an acceleration of vesting and exercisability in the terms of any Award Agreement upon the occurrence of a specified event. Unless otherwise determined by the Committee, if the exercise of a Non-Qualified Stock Option within the permitted time periods is prohibited because such exercise would violate the registration requirements under the Securities Act or any other Applicable Law or the rules of any securities exchange or interdealer quotation system, the Company’s insider trading policy (including any blackout periods) or a “lock up” agreement entered into in connection with the issuance of securities by the Company, then the expiration of such Non-Qualified Stock Option shall be extended until the date that is thirty (30) days after the end of the period during which the exercise of the Non-Qualified Stock Option would be in violation of such registration requirement or other Applicable Law or rules, policy, blackout period or lock-up agreement, as determined by the Committee; provided, however, that in no event shall any such extension result in any Non-Qualified Stock Option remaining exercisable after the ten (10)-year term of the applicable Non-Qualified Stock Option.

 

(d)            Method of Exercise. Subject to any applicable waiting period or exercisability provisions under Section 6.3(c), to the extent vested, Stock Options may be exercised in whole or in part at any time during the term of the applicable Stock Option, by giving written notice of exercise (which may be electronic) to the Company specifying the number of Stock Options being exercised. Such notice shall be accompanied by payment in full of the exercise price (which shall equal the product of such number of Shares to be purchased multiplied by the applicable exercise price). The exercise price for the Stock Options may be paid upon such terms and conditions as shall be established by the Committee and set forth in the applicable Award Agreement. Without limiting the foregoing, the Committee may establish payment terms for the exercise of Stock Options pursuant to which the Company may withhold a number of Shares that otherwise would be issued to the Participant in connection with the exercise of the Stock Option having a Fair Market Value on the date of exercise equal to the exercise price, or that permit the Participant to deliver cash or Shares with a Fair Market Value equal to the exercise price on the date of payment, or through a simultaneous sale through a broker of Shares acquired on exercise, all as permitted by Applicable Law. No Shares shall be issued until payment therefor, as provided herein, has been made or provided for.

 

(e)            Non-Transferability of Options. No Stock Option shall be transferable by the Participant other than by will or by the laws of descent and distribution, and all Stock Options shall be exercisable, during the Participant’s lifetime, only by the Participant. Notwithstanding the foregoing, the Committee may determine, in its sole discretion, at the time of grant or thereafter that a Non-Qualified Stock Option that is otherwise not transferable pursuant to this Section 6.3(e) is transferable pursuant to a qualified domestic relations order (or similar instrument) or to a Family Member of the Participant in whole or in part and in such circumstances, and under such conditions, as specified by the Committee. A Non-Qualified Stock Option that is transferred to a Family Member pursuant to the preceding sentence (i) may not be subsequently transferred other than by will or by the laws of descent and distribution and (ii) remains subject to the terms of this Plan and the applicable Award Agreement. Any Shares acquired upon the exercise of a Non-Qualified Stock Option by a permissible transferee of a Non-Qualified Stock Option or a permissible transferee pursuant to a transfer after the exercise of the Non-Qualified Stock Option shall be subject to the terms of this Plan and the applicable Award Agreement.

 

 

 

 

(f)            Termination by Death or Disability. Unless otherwise provided in the applicable Award Agreement, or otherwise determined by the Committee at the time of grant or, if no rights of the Participant are reduced, thereafter, if a Participant’s Termination of Service is by reason of death or Disability, all Stock Options that are held by such Participant that are vested and exercisable at the time of the Participant’s Termination of Service may be exercised by the Participant (or in the case of the Participant’s death, by the legal representative of the Participant’s estate) at any time within a period of one (1) year from the date of such Termination of Service, but in no event beyond the expiration of the stated term of such Stock Options; provided, however, that, in the event of a Participant’s Termination of Service by reason of Disability, if the Participant dies within such exercise period, all unexercised Stock Options held by such Participant shall thereafter be exercisable, to the extent to which they were exercisable at the time of death, for a period of one (1) year from the date of such death, but in no event beyond the expiration of the stated term of such Stock Options.

 

(g)            Involuntary Termination Without Cause. Unless otherwise provided in the applicable Award Agreement or otherwise determined by the Committee at the time of grant or, if no rights of the Participant are reduced, thereafter, if a Participant’s Termination of Service is by involuntary termination by the Company without Cause, all Stock Options that are held by such Participant that are vested and exercisable at the time of the Participant’s Termination of Service may be exercised by the Participant at any time within a period of ninety (90) days from the date of such Termination of Service, but in no event beyond the expiration of the stated term of such Stock Options.

 

(h)            Voluntary Resignation. Unless otherwise provided in the applicable Award Agreement or otherwise determined by the Committee at the time of grant or, if no rights of the Participant are reduced, thereafter, if a Participant’s Termination of Service is voluntary (other than a voluntary termination described in Section 6.3(i) hereof), all Stock Options that are held by such Participant that are vested and exercisable at the time of the Participant’s Termination of Service may be exercised by the Participant at any time within a period of ninety (90) days from the date of such Termination of Service, but in no event beyond the expiration of the stated term of such Stock Options.

 

(i)             Termination for Cause. Unless otherwise provided in the applicable Award Agreement or determined by the Committee at the time of grant, or, if no rights of the Participants are reduced, thereafter, if a Participant’s Termination of Service (x) is for Cause or (y) is a voluntary Termination of Service (as provided in Section 6.3(h)) after the occurrence of an event that would be grounds for a Termination of Service for Cause, all Stock Options, whether vested or not vested, that are held by such Participant shall thereupon immediately terminate and expire as of the date of such Termination of Service.

 

(j)             Unvested Stock Options. Unless otherwise provided in the applicable Award Agreement or determined by the Committee at the time of grant or, if no rights of the Participant are reduced, thereafter, Stock Options that are not vested as of the date of a Participant’s Termination of Service for any reason shall terminate and expire as of the date of such Termination of Service.

 

 

 

 

(k)            Incentive Stock Option Limitations. To the extent that the aggregate Fair Market Value (determined as of the time of grant) of the Shares with respect to which Incentive Stock Options are exercisable for the first time by an Eligible Employee during any calendar year under this Plan and/or any other stock option plan of the Company, any Subsidiary, or any Parent exceeds $100,000, such Options shall be treated as Non-Qualified Stock Options. In addition, if an Eligible Employee does not remain employed by the Company, any Subsidiary or any Parent at all times from the time an Incentive Stock Option is granted until three (3) months prior to the date of exercise thereof (or such other period as required by Applicable Law), such Stock Option shall be treated as a Non-Qualified Stock Option. Should any provision of this Plan not be necessary in order for the Stock Options to qualify as Incentive Stock Options, or should any additional provisions be required, the Committee may amend this Plan accordingly, without the necessity of obtaining the approval of the stockholders of the Company.

 

(l)            Modification, Extension and Renewal of Stock Options. The Committee may (i) modify, extend or renew outstanding Stock Options granted under this Plan (provided that the rights of a Participant are not reduced without such Participant’s consent and provided, further that such action does not subject the Stock Options to Section 409A of the Code without the consent of the Participant), and (ii) accept the surrender of outstanding Stock Options (to the extent not theretofore exercised) and authorize the granting of new Stock Options in substitution therefor (to the extent not theretofore exercised). Notwithstanding the foregoing, an outstanding Option may not be modified to reduce the exercise price thereof nor may a new Option at a lower price be substituted for a surrendered Option (other than adjustments or substitutions in accordance with Article IV), unless such action is approved by the stockholders of the Company.

 

(m)            Automatic Exercise. The Committee may include a provision in an Award Agreement providing for the automatic exercise of a Non-Qualified Stock Option on a cashless basis on the last day of the term of such Option if the Participant has failed to exercise the Non-Qualified Stock Option as of such date, with respect to which the Fair Market Value of the Shares underlying the Non- Qualified Stock Option exceeds the exercise price of such Non-Qualified Stock Option on the date of expiration of such Option, subject to Section 14.4.

 

(n)            Dividends. No dividend or Dividend Equivalent shall be granted with respect to Stock Options.

 

(o)            Other Terms and Conditions. Stock Options may be subject to additional terms and conditions or other provisions, which shall not be inconsistent with any of the terms of this Plan, as the Committee shall deem appropriate.

 

Article VII
STOCK APPRECIATION RIGHTS

 

7.1            Stock Appreciation Rights. Stock Appreciation Rights granted under this Plan shall be evidenced by an Award Agreement and subject to the terms and conditions, not inconsistent with this Plan, determined by the Committee, and the following:

 

(a)            Exercise Price. The exercise price per Share subject to a Stock Appreciation Right shall be determined by the Committee at the time of grant, provided that the per Share exercise price of a Stock Appreciation Right shall not be less than 100% of the Fair Market Value at the time of grant. Notwithstanding the foregoing, in the case of a Stock Appreciation Right that is a Substitute Award, the exercise price per Share for such Stock Appreciation Right may be less than the Fair Market Value on the date of grant; provided, that, such exercise price is determined in a manner consistent with the provisions of Section 409A of the Code and, if applicable, Section 424(a) of the Code.

 

 

 

 

(b)            Term. The term of each Stock Appreciation Right shall be fixed by the Committee, but shall not be greater than ten (10) years after the date the right is granted.

 

(c)            Exercisability. Unless otherwise provided by the Committee, Stock Appreciation Rights granted under this Plan shall be exercised at such time or times and subject to such terms and conditions as shall be determined by the Committee at the time of grant. If the Committee provides that any such right is exercisable subject to certain terms and conditions, the Committee may waive those terms and conditions on the exercisability at any time at or after grant in whole or in part. Unless otherwise determined by the Committee, if the exercise of a Stock Appreciation Right within the permitted time periods is prohibited because such exercise would violate the registration requirements under the Securities Act or any other Applicable Law or the rules of any securities exchange or interdealer quotation system, the Company’s insider trading policy (including any blackout periods) or a “lock up” agreement entered into in connection with the issuance of securities by the Company, then the expiration of such Stock Appreciation Right shall be extended until the date that is thirty (30) days after the end of the period during which the exercise of the Stock Appreciation Right would be in violation of such registration requirement or other Applicable Law or rules, policy, blackout period or lock-up agreement, as determined by the Committee; provided, however, that in no event shall any such extension result in any Stock Appreciation Right remaining exercisable after the ten (10)-year term of the applicable Stock Appreciation Right.

 

(d)            Method of Exercise. Subject to any applicable waiting period or exercisability provisions under Section 7.1(c), to the extent vested, Stock Appreciation Rights may be exercised in whole or in part at any time during the term of the Stock Appreciation Right, by giving written notice of exercise (which may be electronic) to the Company specifying the number of Stock Appreciation Rights being exercised.

 

(e)            Payment. Upon the exercise of a Stock Appreciation Right a Participant shall be entitled to receive, for each right exercised, up to, but no more than, an amount in cash and/or Shares (as chosen by the Committee in its sole discretion) equal in value to the excess of the Fair Market Value of one (1) Share on the date that the right is exercised over the exercise price per Share of the Stock Appreciation Right.

 

(f)            Termination. Unless otherwise determined by the Committee at grant or, if no rights of the Participant are reduced, thereafter, subject to the provisions of the applicable Award Agreement and this Plan, upon a Participant’s Termination of Service for any reason, Stock Appreciation Rights may remain exercisable following a Participant’s Termination of Service on the same basis as Stock Options would be exercisable following a Participant’s Termination of Service in accordance with the provisions of Sections 6.3(f) through 6.3(j).

 

(g)            Non-Transferability. No Stock Appreciation Rights shall be transferable by the Participant other than by will or by the laws of descent and distribution, and all such rights shall be exercisable, during the Participant’s lifetime, only by the Participant.

 

(h)            Automatic Exercise. The Committee may include a provision in an Award Agreement providing for the automatic exercise of a Stock Appreciation Right on a cashless basis on the last day of the term of such Stock Appreciation Right if the Participant has failed to exercise the Stock Appreciation Right as of such date, with respect to which the Fair Market Value of the Shares underlying the Stock Appreciation Right exceeds the exercise price of such Stock Appreciation Right on the date of expiration of such Stock Appreciation Right, subject to Section 14.4.

 

 

 

 

(i)             Other Terms and Conditions. Stock Appreciation Rights may be subject to additional terms and conditions or other provisions, which shall not be inconsistent with any of the terms of this Plan, as the Committee shall deem appropriate.

 

Article VIII
RESTRICTED STOCK; RESTRICTED STOCK UNITS

 

8.1            Awards of Restricted Stock and Restricted Stock Units. Shares of Restricted Stock and Restricted Stock Units may be granted alone or in addition to other Awards granted under this Plan. The Committee shall determine the Eligible Individuals to whom, and the time or times at which, grants of Restricted Stock and/or Restricted Stock Units shall be made, the number of Shares of Restricted Stock or the number of Restricted Stock Units to be awarded, the price (if any) to be paid by the Participant (subject to Section 8.2), the time or times within which such Awards may be subject to forfeiture, the vesting schedule and rights to acceleration thereof, and all other terms and conditions of the Awards. The Committee shall determine and set forth in the Award Agreement the terms and conditions for each Award of Restricted Stock and Restricted Stock Unit, subject to the conditions and limitations contained in this Plan, including any vesting or forfeiture conditions.

 

The Committee may condition the grant or vesting of Restricted Stock and Restricted Stock Units upon the attainment of specified Performance Goals or such other factor as the Committee may determine in its sole discretion.

 

8.2            Awards and Certificates. Restricted Stock and Restricted Stock Units granted under this Plan shall be evidenced by an Award Agreement and subject to the following terms and conditions and shall be in such form and contain such additional terms and conditions not inconsistent with the terms of this Plan, as the Committee shall deem desirable:

 

(a)            Restricted Stock.

 

(i)            Purchase Price. The purchase price of Restricted Stock shall be fixed by the Committee. The purchase price for shares of Restricted Stock may be zero to the extent permitted by Applicable Law, and, to the extent not so permitted, such purchase price may not be less than par value.

 

(ii)           Legend. Each Participant receiving Restricted Stock shall be issued a stock certificate in respect of such shares of Restricted Stock, unless the Committee elects to use another system, such as book entries by the Company’s transfer agent, as evidencing ownership of shares of Restricted Stock. Such certificate shall be registered in the name of such Participant, and shall, in addition to such legends required by Applicable Law, bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock.

 

(iii)          Custody. If stock certificates are issued in respect of shares of Restricted Stock, the Committee may require that any stock certificates evidencing such shares be held in escrow or other custody by the Company until the restrictions thereon shall have lapsed, and that, as a condition of any grant of Restricted Stock, the Participant shall have delivered a duly signed stock power or other instruments of assignment (including a power of attorney), each endorsed in blank with a guarantee of signature if deemed necessary or appropriate by the Company, which would permit transfer to the Company of all or a portion of the shares subject to the Award of Restricted Stock in the event that such Award is forfeited in whole or part.

 

 

 

 

(iv)          Rights as a Stockholder. Except as provided in Section 8.3(a) and this Section 8.2(a) or as otherwise determined by the Committee in an Award Agreement, the Participant shall have, with respect to the shares of Restricted Stock, all of the rights of a holder of Shares, including the right to receive dividends, the right to vote such shares and, subject to and conditioned upon the full vesting of shares of Restricted Stock, the right to tender such shares; provided that the Award Agreement shall specify on what terms and conditions the applicable Participant shall be entitled to dividends payable on the Shares.

 

(v)           Lapse of Restrictions. If and when the Restriction Period expires without a prior forfeiture of the Restricted Stock, such number of Shares that formerly constituted Restricted Stock shall be delivered to the Participant. Except as otherwise required by Applicable Law or other limitations imposed by the Committee, such Shares shall be delivered to the Participant without legends with respect to the restrictions formerly applicable to such Shares.

 

(b)            Restricted Stock Units.

 

(i)            Settlement. The Committee may provide that settlement of Restricted Stock Units will occur upon or as soon as reasonably practical after the Restricted Stock Units vest or will instead be deferred, on a mandatory basis or at the Participant’s election, in a manner intended to comply with Section 409A of the Code.

 

(ii)           Rights as a Stockholder. A Participant will have no rights of a stockholder with respect to Shares subject to any Restricted Stock Unit unless and until Shares are delivered in settlement of the Restricted Stock Units.

 

(iii)          Dividend Equivalents. If the Committee so provides, a grant of Restricted Stock Units may provide a Participant with the right to receive Dividend Equivalents. Dividend Equivalents may be paid currently or credited to an account for the Participant, settled in cash or Shares, and may be subject to the same restrictions on transferability and forfeitability as the Restricted Stock Units with respect to which the Dividend Equivalents are granted and subject to other terms and conditions as set forth in the Award Agreement.

 

8.3            Restrictions and Conditions.

 

(a)            Restriction Period.

 

(i)            The Participant shall not be permitted to transfer shares of Restricted Stock awarded under this Plan or vest in Restricted Stock Units during the period or periods set by the Committee (the “Restriction Period”) commencing on the date of such Award, as set forth in the applicable Award Agreement, and such Award Agreement shall set forth a vesting schedule and any event that would accelerate vesting of the Restricted Stock and/or Restricted Stock Units. Restricted Stock Units shall not be transferable by the Participant other than by will or by the laws of descent and distribution and Shares subject to Restricted Stock Units may not be transferred prior to the date on which the Shares are issued or, if later, the date on which any applicable deferral period lapses. Within these limits, based on service, attainment of Performance Goals pursuant to Section 8.3(a)(ii) and/or such other factors or criteria as the Committee may determine in its sole discretion, the Committee may condition the grant or provide for the lapse of such restrictions in installments in whole or in part, or may accelerate the vesting of all or any part of any Award of Restricted Stock or Restricted Stock Unit and/or waive the deferral limitations for all or any part of any Award of Restricted Stock or Restricted Stock Unit.

 

 

 

 

(ii)            If the grant of shares of Restricted Stock or Restricted Stock Units or the lapse of restrictions or vesting schedule is based on the attainment of Performance Goals, the Committee shall establish the objective Performance Goals and the applicable vesting percentage applicable to each Participant or class of Participants in the applicable Award Agreement prior to the beginning of the applicable fiscal year or at such later date as otherwise determined by the Committee and while the outcome of the Performance Goals are substantially uncertain. Such Performance Goals may incorporate provisions for disregarding (or adjusting for) changes in accounting methods, corporate transactions (including dispositions and acquisitions) and other similar types of events or circumstances.

 

(b)            Termination. Unless otherwise provided in the applicable Award Agreement or determined by the Committee at grant or, if no rights of the Participant are reduced, thereafter, upon a Participant’s Termination of Service for any reason during the relevant Restriction Period, all Restricted Stock or Restricted Stock Units still subject to restriction will be forfeited in accordance with the terms and conditions established by the Committee at grant or thereafter.

 

Article IX
PERFORMANCE AWARDS

 

9.1            Performance Awards. The Committee may grant a Performance Award to a Participant payable upon the attainment of specific Performance Goals either alone or in addition to other Awards granted under this Plan. The Performance Goals to be achieved during the Performance Period and the length of the Performance Period shall be determined by the Committee upon the grant of each Performance Award. The conditions for grant or vesting and the other provisions of Performance Awards (including any applicable Performance Goals) need not be the same with respect to each Participant. Performance Awards may be paid in cash, Shares, other property or any combination thereof, in the sole discretion of the Committee as set forth in the applicable Award Agreement. A Performance Award shall not be transferable by the Participant other than by will or by the laws of descent and distribution and Shares subject to Performance Awards may not be transferred prior to the date on which the Shares are issued or, if later, the date on which any applicable restriction, performance or deferral period lapses.

 

Article X
OTHER STOCK-BASED

 

10.1          Other Stock-Based Awards. The Committee is authorized to grant to Eligible Individuals Other Stock-Based Awards that are payable in, valued in whole or in part by reference to, or otherwise based on or related to Shares, including Shares awarded purely as a bonus and not subject to restrictions or conditions, Shares in payment of the amounts due under an incentive or performance plan sponsored or maintained by the Company, stock equivalent units and Awards valued by reference to the book value of Shares. Other Stock-Based Awards may be granted either alone or in addition to or in tandem with other Awards granted under this Plan.

 

 

 

 

Subject to the provisions of this Plan, the Committee shall have authority to determine the Eligible Individuals, to whom, and the time or times at which, such Other Stock-Based Awards shall be made, the number of Shares to be awarded pursuant to such Awards, and all other conditions of the Awards. The Committee may also provide for the grant of Shares under such Awards upon the completion of a specified Performance Period. The Committee may condition the grant or vesting of Other Stock-Based Awards upon the attainment of specified Performance Goals as the Committee may determine, in its sole discretion.

 

10.2            Terms and Conditions. Other Stock-Based Awards made pursuant to this Article X shall be evidenced by an Award Agreement and subject to the following terms and conditions and shall be in such form and contain such additional terms and conditions not inconsistent with the terms of this Plan, as the Committee shall deem desirable:

 

(a)            Non-Transferability. Subject to the applicable provisions of the Award Agreement and this Plan, Shares subject to Other Stock-Based Awards may not be transferred prior to the date on which the Shares are issued or, if later, the date on which any applicable restriction, performance, or deferral period lapses.

 

(b)            Dividends. Unless otherwise determined by the Committee at the time of the grant of an Other Stock-Based Award, subject to the provisions of the Award Agreement and this Plan, the recipient of an Other Stock-Based Award shall not be entitled to receive, currently or on a deferred basis, dividends or Dividend Equivalents in respect of the number of Shares covered by the Other Stock-Based Award.

 

(c)            Vesting. Any Other Stock-Based Award and any Shares covered by any such Other Stock-Based Award shall vest or be forfeited to the extent so provided in the Award Agreement, as determined by the Committee, in its sole discretion.

 

(d)            Price. Shares under this Article X may be issued for no cash consideration. Shares purchased pursuant to a purchase right awarded pursuant to an Other Stock-Based Award shall be priced, as determined by the Committee in its sole discretion.

 

Article XI
CHANGE IN CONTROL PROVISIONS

 

11.1            Benefits. In the event of a Change in Control of the Company, and except as otherwise provided by the Committee in an Award Agreement or any applicable employment agreement, offer letter, consulting agreement, change in control agreement or similar agreement in effect between the Company or an Affiliate and the Participant, a Participant’s unvested Awards shall not vest automatically and a Participant’s Awards shall be treated in accordance with one or more of the following methods as determined by the Committee:

 

(a)            Awards, whether or not then vested, shall be continued, be assumed, or have new rights substituted therefor, as determined by the Committee in a manner consistent with the requirements of Section 409A of the Code, and restrictions to which shares of Restricted Stock or any other Award granted prior to the Change in Control are subject shall not lapse upon a Change in Control and the Restricted Stock or other Award shall, where appropriate in the sole discretion of the Committee, receive the same distribution as other Shares on such terms as determined by the Committee; provided that the Committee may decide to award additional Restricted Stock or other Awards in lieu of any cash distribution. Notwithstanding anything to the contrary herein, for purposes of Incentive Stock Options, any assumed or substituted Stock Option shall comply with the requirements of Treasury Regulation Section 1.424-1 (and any amendment thereto).

 

 

 

 

(b)            The Committee, in its sole discretion, may provide for the purchase of any Awards by the Company for an amount of cash equal to the excess (if any) of the Change in Control Price of the Shares covered by such Awards, over the aggregate exercise price of such Awards; provided, however, that if the exercise price of an Option or Stock Appreciation Right exceeds the Change in Control Price, such Award may be cancelled for no consideration.

 

(c)            The Committee may, in its sole discretion, terminate all outstanding and unexercised Stock Options, Stock Appreciation Rights or any Other Stock-Based Award that provides for a Participant-elected exercise, effective as of the date of the Change in Control, by delivering notice of termination to each Participant at least twenty (20) days prior to the date of consummation of the Change in Control, in which case during the period from the date on which such notice of termination is delivered to the consummation of the Change in Control, each such Participant shall have the right to exercise in full all of such Participant’s Awards that are then outstanding (without regard to any limitations on exercisability otherwise contained in the Award Agreements), but any such exercise shall be contingent on the occurrence of the Change in Control, and, provided that, if the Change in Control does not take place within a specified period after giving such notice for any reason whatsoever, the notice and exercise pursuant thereto shall be null and void.

 

(d)            Notwithstanding any other provision herein to the contrary, the Committee may, in its sole discretion, provide for accelerated vesting or lapse of restrictions, of an Award at any time.

 

Article XII
TERMINATION OR AMENDMENT OF PLAN

 

Notwithstanding any other provision of this Plan, the Board or the Committee may at any time, and from time to time, amend, in whole or in part, any or all of the provisions of this Plan (including any amendment deemed necessary to ensure that the Company may comply with any Applicable Law), or suspend or terminate it entirely, retroactively or otherwise; provided, however, that, unless otherwise required by Applicable Law or specifically provided herein, the rights of a Participant with respect to Awards granted prior to such amendment, suspension or termination may not be materially impaired without the consent of such Participant. and, provided, further, that without the approval of the holders of the Shares entitled to vote in accordance with Applicable Law, no amendment may be made to the Plan or any Award Agreement that would (a) increase the aggregate number of Shares that may be issued under this Plan (except by operation of Section 4.1); (b) change the classification of individuals eligible to receive Awards under this Plan; (c) reduce the exercise price of any Stock Option or Stock Appreciation Right; (d) grant any new Stock Option, Stock Appreciation Right or other Award in substitution for, or upon the cancellation of, any previously granted Stock Option or Stock Appreciation Right that has the effect of reducing the exercise price thereof; (e) exchange any Stock Option or Stock Appreciation Right for Common Stock, cash or other consideration when the exercise price per Share under such Stock Option or Stock Appreciation Right exceeds the Fair Market Value of a Share; or (f) take any action that would be considered a “repricing” of a Stock Option or Stock Appreciation Right under the applicable listing standards of the national exchange on which the Common Stock is listed (if any). Notwithstanding anything herein to the contrary, the Board or the Committee may amend this Plan or any Award Agreement at any time without a Participant’s consent to comply with Applicable Law, including Section 409A of the Code. The Committee may amend the terms of any Award theretofore granted, prospectively or retroactively, but, subject to Article IV and the first sentence of this Article XII or as otherwise specifically provided herein, no such amendment or other action by the Committee shall materially impair the rights of any Participant without the Participant’s consent.

 

 

 

 

Article XIII
UNFUNDED STATUS OF PLAN

 

This Plan is intended to constitute an “unfunded” plan for incentive and deferred compensation. With respect to any payment as to which a Participant has a fixed and vested interest but which is not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any right that is greater than those of a general unsecured creditor of the Company.

 

Article XIV
GENERAL PROVISIONS

 

14.1            Lock Up; Legend. The Committee may require each person receiving Shares pursuant to a Stock Option or other Award under this Plan to represent to and agree with the Company in writing that the Participant is acquiring the Shares without a view to distribution thereof. The Company may, in connection with registering the offering of any Company securities under the Securities Act, prohibit Participants from, directly or indirectly, selling or otherwise transferring any Shares or other Company securities during any period determined by the underwriter or the Company. In addition to any legend required by this Plan, the certificates or book-entry statements for such Shares may include any legend that the Committee deems appropriate to reflect any restrictions on transfer. All certificates for Shares delivered under this Plan shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission or any stock exchange upon which the Common Stock is then listed and any Applicable Law, and the Committee may cause appropriate reference to be made to such restrictions. If the Shares are held in book-entry form, then the book-entry will indicate any restrictions on such Shares.

 

14.2            Other Plans. Nothing contained in this Plan shall prevent the Board from adopting other or additional equity or other compensation arrangements, subject to stockholder approval if such approval is required under the applicable stock exchange listing standards or otherwise, and such arrangements may be either generally applicable or applicable only in specific cases.

 

14.3            No Right to Employment/Directorship/Consultancy. Neither this Plan nor the grant of any Award hereunder shall give any Participant or other employee, Consultant or Non-Employee Director any right with respect to continuance of employment, consultancy or directorship by the Company or any Affiliate, nor shall there be a limitation in any way on the right of the Company or any Affiliate by which an employee is employed or a Consultant or Non-Employee Director is retained to terminate such employment, consultancy or directorship at any time.

 

14.4            Withholding of Taxes. A Participant shall be required to pay to the Company or one of its Affiliates, as applicable, or make arrangements satisfactory to the Company regarding the payment of, any income tax, social insurance contribution or other applicable taxes that are required to be withheld in respect of an Award. The Committee may (but is not obligated to), in its sole discretion, permit or require a Participant to satisfy all or any portion of the applicable taxes that are required to be withheld with respect to an Award by (a) the delivery of Shares (which are not subject to any pledge or other security interest) that have been both held by the Participant and vested for at least six (6) months (or such other period as established from time to time by the Committee in order to avoid adverse accounting treatment under applicable accounting standards) having an aggregate Fair Market Value equal to such withholding liability (or portion thereof); (b) having the Company withhold from the Shares otherwise issuable or deliverable to, or that would otherwise be retained by, the Participant upon the grant, exercise, vesting or settlement of the Award, as applicable, a number of Shares with an aggregate Fair Market Value equal to the amount of such withholding liability; (c) withholding payment from any amounts otherwise payable to the Participant, or (d) by any other means specified in the applicable Award Agreement or otherwise determined by the Committee.

 

 

 

 

14.5            Fractional Shares. No fractional Shares shall be issued or delivered pursuant to this Plan. The Committee shall determine whether cash, additional Awards or other securities or property shall be used or paid in lieu of fractional Shares or whether any fractional shares should be rounded, forfeited, or otherwise eliminated.

 

14.6            No Assignment of Benefits. No Award or other benefit payable under this Plan shall, except as otherwise specifically provided under Applicable Law, in this Plan or any Award Agreement, or as permitted by the Committee, be transferable in any manner, and any attempt to transfer any such benefit shall be void, and any such benefit shall not in any manner be liable for or subject to the debts, contracts, liabilities, engagements or torts of any person who shall be entitled to such benefit, nor shall it be subject to attachment or legal process for or against such person.

 

14.7            Clawbacks. All Awards, amounts or benefits received or outstanding under this Plan (including any proceeds, gains or other economic benefit the Participant actually or constructively receives upon receipt or exercise of any Award or the receipt or resale of any Shares underlying the Award) will be subject to clawback, cancellation, recoupment, rescission, payback, reduction, or other similar action in accordance with any Company clawback or similar policy, whenever adopted, or any Applicable Law related to such actions (including the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder). A Participant’s acceptance of an Award will constitute the Participant’s acknowledgement of and consent to the Company’s application, implementation, and enforcement of any applicable Company clawback or similar policy that may apply to the Participant, whether adopted before or after the Effective Date, and any Applicable Law relating to clawback, cancellation, recoupment, rescission, payback, or reduction of compensation, and the Participant’s agreement that the Company may take any actions that may be necessary to effectuate any such policy or Applicable Law, without further consideration or action.

 

14.8            Listing and Other Conditions.

 

(a)            Unless otherwise determined by the Committee, as long as the Common Stock is listed on a national securities exchange or system sponsored by a national securities association, the issuance of Shares pursuant to an Award shall be conditioned upon such Shares being listed on such exchange or system. The Company shall have no obligation to issue such Shares unless and until such Shares are so listed, and the right to exercise any Option or other Award with respect to such Shares or receive Shares in settlement with respect to any Award shall be suspended until such listing has been effected.

 

(b)            If at any time counsel to the Company advises the Company that any sale or delivery of Shares pursuant to an Award is or may in the circumstances be unlawful or result in the imposition of excise taxes on the Company under Applicable Law, the Company shall have no obligation to make such sale or delivery, or to make any application or to effect or to maintain any qualification or registration under the Securities Act or otherwise, with respect to Shares or Awards, and the right to exercise any Option or other Award shall be suspended until, based on the advice of said counsel, such sale or delivery shall be lawful or will not result in the imposition of excise taxes on the Company.

 

(c)            Upon termination of any period of suspension under this Section 14.8, any Award affected by such suspension which shall not then have expired or terminated shall be reinstated as to all Shares available before such suspension and as to Shares which would otherwise have become available during the period of such suspension, but no such suspension shall extend the term of any Award.

 

 

 

 

(d)            A Participant shall be required to supply the Company with certificates, representations, and information that the Company requests and otherwise cooperate with the Company in obtaining any listing, registration, qualification, exemption, consent, or approval that the Company deems necessary or appropriate.

 

14.9            Governing Law. This Plan and actions taken in connection herewith shall be governed and construed in accordance with the laws of the State of Delaware, without reference to principles of conflict of laws.

 

14.10            Construction. The following rules of construction will apply to the Plan, any Award Agreement and any written instrument provided or subject thereunder: (a) the word “or” is disjunctive but not necessarily exclusive, (b) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”, and (c) words in the singular include the plural, words in the plural include the singular, and words in the neuter gender include the masculine and feminine genders and words in the masculine or feminine gender include the other neuter genders.

 

14.11            Other Benefits. No Award granted or paid out under this Plan shall be deemed compensation for purposes of computing benefits under any retirement plan of the Company or its Affiliates or affect any benefit or compensation under any other plan now or subsequently in effect under which the availability or amount of benefits is related to the level of compensation.

 

14.12            Costs. The Company shall bear all expenses associated with administering this Plan, including expenses of issuing Shares pursuant to Awards hereunder.

 

14.13            No Right to Same Benefits. The provisions of Awards need not be the same with respect to each Participant, and such Awards to individual Participants need not be the same in subsequent years.

 

14.14            Death/Disability. The Committee may in its discretion require the transferee of a Participant to supply it with written notice of the Participant’s death or Disability and to supply it with a copy of the will (in the case of the Participant’s death) or such other evidence as the Committee deems necessary to establish the validity of the transfer of an Award. The Committee may also require the agreement of the transferee to be bound by all of the terms and conditions of this Plan.

 

14.15            Section 16(b) of the Exchange Act. It is the intent of the Company that this Plan satisfy, and be interpreted in a manner that satisfies, the applicable requirements of Rule 16b-3 as promulgated under Section 16 of the Exchange Act so that Participants will be entitled to the benefit of Rule 16b-3, or any other rule promulgated under Section 16 of the Exchange Act, and will not be subject to short-swing liability under Section 16 of the Exchange Act. Accordingly, if the operation of any provision of this Plan would conflict with the intent expressed in this Section 14.15, such provision to the extent possible shall be interpreted or deemed amended so as to avoid such conflict.

 

14.16            Deferral of Awards. The Committee may establish one or more programs under this Plan to permit selected Participants the opportunity to elect to defer receipt of consideration upon exercise of an Award, satisfaction of performance criteria or other event that absent the election would entitle the Participant to payment or receipt of Shares or other consideration under an Award. The Committee may establish the election procedures, the timing of such elections, the mechanisms for payments of, and accrual of interest or other earnings, if any, on amounts, Shares or other consideration so deferred, and such other terms, conditions, rules and procedures that the Committee deems advisable for the administration of any such deferral program.

 

 

 

 

14.17            Section 409A of the Code. This Plan and Awards are intended to comply with or be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent. To the extent that any Award is subject to Section 409A of the Code, it shall be paid in a manner that will comply with Section 409A of the Code, and the regulations promulgated thereunder. Notwithstanding anything herein to the contrary, any provision in this Plan that is inconsistent with Section 409A of the Code shall be deemed to be amended to comply with or be exempt from Section 409A of the Code and, to the extent such provision cannot be amended to comply therewith or be exempt therefrom, such provision shall be null and void. The Company shall have no liability to a Participant, or any other party, if an Award that is intended to be exempt from, or compliant with, Section 409A of the Code is not so exempt or compliant or for any action taken by the Committee or the Company and, in the event that any amount or benefit under this Plan becomes subject to penalties under Section 409A of the Code, responsibility for payment of such penalties shall rest solely with the affected Participants and not with the Company. Notwithstanding any contrary provision in this Plan or Award Agreement, any payment(s) of “nonqualified deferred compensation” (within the meaning of Section 409A of the Code) that are otherwise required to be made under this Plan to a “specified employee” (as defined under Section 409A of the Code) as a result of such employee’s separation from service (other than a payment that is not subject to Section 409A of the Code) shall be delayed for the first six (6) months following such separation from service (or, if earlier, until the date of death of the specified employee) and shall instead be paid (in a manner set forth in the Award Agreement) upon expiration of such delay period.

 

14.18            Data Privacy. As a condition of receipt of any Award, each Participant explicitly and unambiguously consents to the collection, use, and transfer, in electronic or other form, of personal data as described in this Section 14.18 by and among, as applicable, the Company and its Affiliates, for the exclusive purpose of implementing, administering, and managing this Plan and Awards and the Participant’s participation in this Plan. The Company and its Affiliates may hold certain personal information about a Participant, including, but not limited to, the Participant’s name, home address, telephone number, date of birth, social security or insurance number or other identification number, salary, nationality, job title(s), information regarding any securities of the Company or any of its Affiliates, and details of all Awards, in each case, for the purpose of implementing, managing and administering this Plan and such Awards (the “Data”). The Company and its Affiliates may each transfer the Data to any third parties assisting the Company as necessary for the purpose of implementation, administration, and management of this Plan and such Awards and the Participant’s participation in this Plan. Recipients of the Data may be located in the Participant’s country or elsewhere, and the Participant’s country and any given recipient’s country may have different data privacy laws and protections. By accepting an Award, each Participant authorizes such recipients to receive, possess, use, retain, and transfer the Data, in electronic or other form, for the purposes of assisting the Company in the implementation, administration, and management of this Plan and Awards and the Participant’s participation in this Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Company or the Participant may elect to deposit any Shares. The Data related to a Participant will be held only as long as is necessary to implement, administer, and manage this Plan and such Awards and the Participant’s participation in this Plan. A Participant may, at any time, view the Data held by the Company or its Affiliates with respect to such Participant, request additional information about the storage and processing of the Data with respect to such Participant, recommend any necessary corrections to the Data with respect to the Participant, or refuse or withdraw the consents herein in writing, in any case without cost, by contacting such Participant’s local human resources representative. The Company may cancel the Participant’s eligibility to participate in this Plan, and in the Committee’s discretion, the Participant may forfeit any outstanding Awards if the Participant refuses or withdraws the consents described herein. For more information on the consequences of refusal to consent or withdrawal of consent, Participants may contact their local human resources representative.

 

 

 

 

14.19            Successor and Assigns. This Plan shall be binding on all successors and permitted assigns of a Participant, including the estate of such Participant and the executor, administrator, or trustee of such estate.

 

14.20            Severability of Provisions. If any portion of the Plan or any Award Agreement is declared by any court or governmental authority to be unlawful, unenforceable or invalid, such unlawfulness, unenforceability or invalidity shall not affect any other portion of the Plan or such Award Agreement and the Plan or such Award Agreement shall be construed and enforced as if such provisions had not been included. Any Section or part of a Section of the Plan or any Award Agreement so declared to be unlawful, unenforceable or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful, enforceable and valid.

 

14.21            Headings and Captions. The headings and captions herein are provided for reference and convenience only, shall not be considered part of this Plan, and shall not be employed in the construction of this Plan.

 

Article XV
EFFECTIVE DATE OF PLAN

 

This Plan shall become effective upon the Closing (as defined in the Business Combination Agreement), subject to the approval of this Plan by the stockholders of the Company in accordance with the requirements of the laws of the State of Delaware and the listing standards of any applicable exchange upon which Shares are to be traded.

 

Article XVI
TERM OF PLAN

 

No Award shall be granted pursuant to this Plan on or after the tenth (10^th) anniversary of date that this Plan is effective, but Awards granted prior to such tenth (10^th) anniversary may extend beyond that date.

 

 

 

EX-10.14

 

Exhibit 10.14

 

PINSTRIPES HOLDINGS, INC.

 

 

 

2023 EMPLOYEE STOCK PURCHASE PLAN

 

 

 

ARTICLE I

PURPOSE

 

The Pinstripes Holdings, Inc. 2023 Employee Stock Purchase Plan, as it may be amended or restated from time to time (the “Plan”), is intended to assist Eligible Employees of the Company, and its Designated Subsidiaries in acquiring a stock ownership interest in the Company. From and after such date as the Committee, in its sole discretion, determines that the Plan is able to satisfy the requirements under Section 423 of the Code and that it will operate the Plan in accordance with such requirements (such date, the “Section 423 Effective Date”), the Plan is intended to qualify as an “employee stock purchase plan” under Section 423 of the Code and will be operated and construed accordingly. Except as specifically provided herein, and unless the Plan is amended pursuant to Article IX, the operative terms of the Plan as in effect on the Effective Date will remain the same on and after the Section 423 Effective Date.

 

ARTICLE II

DEFINITIONS AND CONSTRUCTION

 

For purposes of the Plan, the following terms shall have the following meanings:

 

2.1 “Administrator” shall have the meaning given to such term in Section 11.1 of the Plan.

 

2.2 “Applicable Law” means the requirements relating to the administration of equity incentive plans under U.S. federal and state securities, tax and other applicable laws, rules and regulations, the applicable rules of any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws and rules of any foreign country or other jurisdiction where rights under this Plan are granted.

 

2.3 “Board” means the Board of Directors of the Company.

 

2.4 “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and the guidance and treasury regulations promulgated thereunder.

 

2.5 “Committee” means the Compensation Committee of the Board (or another committee or a subcommittee of the Board to which the Board delegates administration of the Plan).

 

2.6 “Common Stock” means the common stock, $0.0001 par value per share, of the Company and such other securities of the Company that may be substituted therefor pursuant to Article VIII.

 

 

 

 

2.7 “Company” means Pinstripes Holdings, Inc. (f/k/a Banyan Acquisition Corporation), a Delaware corporation, and its successors by operation of law.

 

2.8 “Compensation” means the gross base salary or wages received by an Eligible Employee as compensation for services to the Company or any Designated Subsidiary, including prior week adjustment and overtime payments but excluding vacation pay, holiday pay, jury duty pay, funeral leave pay, military leave pay, commissions, incentive compensation, one-time bonuses (e.g., retention or sign-on bonuses), education or tuition reimbursements, travel expenses, business and moving reimbursements, income received in connection with any stock options, stock appreciation rights, restricted stock, restricted stock units or other compensatory equity awards, fringe benefits, other special payments and all contributions made by the Company or any Designated Subsidiary for such Eligible Employee’s benefit under any employee benefit plan now or hereafter established. The Administrator may, on a uniform and nondiscriminatory basis, establish a different definition of Compensation for an Offering Period prior to the commencement of such Offering Period.

 

2.9 “Designated Subsidiary” means any Subsidiary designated by the Administrator in accordance with Section 11.2 (b).

 

2.10 “Effective Date” means the Closing (as defined in the Business Combination Agreement), subject to the approval of this Plan by the stockholders of the Company in accordance with the requirements of the laws of the State of Delaware and the listing standards of any applicable exchange upon which Shares are to be traded.

 

2.11 “Eligible Employee” means an Employee who does not, immediately after any rights under this Plan are granted, own (directly or through attribution) stock possessing 5% or more of the total combined voting power or value of all classes of Common Stock and other stock of the Company, a Parent or a Subsidiary (as determined under Section 423(b)(3) of the Code). For purposes of the foregoing sentence, the rules of Section 424(d) of the Code with regard to the attribution of stock ownership shall apply in determining the stock ownership of an individual, and stock that an Employee may purchase under outstanding options shall be treated as stock owned by the Employee; provided, however, that the Administrator may provide in an Offering Document that an Employee shall not be eligible to participate in an Offering Period if such Employee meets certain criteria and following the Section 423 Effective Date such criteria shall be limited to: (a) such Employee is a “highly compensated employee” of the Company or any Designated Subsidiary (within the meaning of Section 414(q) of the Code), or is such a “highly compensated employee” (i) with compensation above a specified level, (ii) who is an officer and/or (iii) is subject to the disclosure requirements of Section 16(a) of the Exchange Act; (b) such Employee has not met a service requirement designated by the Administrator pursuant to Section 423(b)(4)(A) of the Code (which service requirement may not exceed two years); (c) such Employee is customarily scheduled to work twenty (20) hours per week or less; (d) such Employee’s customary employment is for less than five (5) months in any calendar year; and/or (e) such Employee is a citizen or resident of a foreign jurisdiction (without regard to whether they are also a citizen of the United States or a resident alien (within the meaning of Section 7701(b)(1)(A) of the Code)) if either (i) the grant of the option is prohibited under the laws of the jurisdiction governing such Employee, or (ii) compliance with the laws of the foreign jurisdiction would cause the Plan or the option to violate the requirements of Section 423 of the Code; provided that any exclusion in clauses (a), (b), (c), (d) or (e) that is chosen by the Administrator shall be applied in an identical manner under each Offering Period to all Employees of the Company and all Designated Subsidiaries, in accordance with Treasury Regulations § 1.423-2(e).

 

 

 

 

2.12 “Employee” means any officer or other employee (as defined in accordance with Section 3401(c) of the Code) of the Company or any Designated Subsidiary. An Employee does not include any director of the Company or a Designated Subsidiary who does not render services to the Company or a Designated Subsidiary as an employee within the meaning of Section 3401(c) of the Code. For purposes of the Plan, the employment relationship shall be treated as continuing •      Qualified Plan Background Materials – files related to the various qualified plans, including drafts, amendments, QPAIC meeting notes, etc.

 

o            Any reason that the Firm as plan sponsor might want/need to keep these?

 

o            Any reason that QPAIC as plan fiduciary might want/need to keep these?

 

·            Non-Qualified Plan Materials – files related to the Non-Qualified Retirement/Death Benefit Plan and the Disability Plan

 

o            Includes memos on waivers under the forfeiture for competition covenant

 

o            Also includes materials related to the 2017 amendment and restatement of the Plans.

 

o            I think we should keep these, so that we have a record of what we’ve done in the past in case it comes up in the future.

 

o            I don’t think we need to have strict access restrictions on this, but let me know if you disagree.

 

intact while the individual is on sick leave or other leave of absence approved by the Company or Designated Subsidiary and meeting the requirements of Treasury Regulation Section 1.421-1(h)(2). Where the period of leave exceeds three months and the individual’s right to reemployment is not guaranteed either by statute or by contract, the employment relationship shall be deemed to have terminated on the first day immediately following such three-month period.

 

2.13 “Enrollment Date” means the first Trading Day of each Offering Period (or, with respect to the Initial Offering Period, such date set forth in the Offering Document approved by the Administrator with respect to the Initial Offering Period).

 

2.14 “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. Reference to a specific section of the Exchange Act or regulation thereunder shall include such section or regulation, any valid regulation or interpretation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing, or superseding such section or regulation.

 

 

 

 

2.15 “Fair Market Value” means, for purposes of this Plan, unless otherwise required by any applicable provision of the Code or any regulations issued thereunder, as of any date, (a) the closing (last sale) price reported for the Common Stock on the applicable date on the principal national securities exchange or other trading market in the United States on which the Common Stock is then publicly traded, or (b) if the Common Stock is not so publicly traded, the Committee shall determine in good faith the Fair Market Value in whatever manner it considers appropriate taking into account the requirements of Section 409A of the Code. For purposes of the grant of any award subject to clause (a) of the immediately preceding sentence, the applicable date shall be the Trading Day for Common Stock immediately prior to the date on which the award is granted. For purposes of the exercise of any award, the applicable date shall be the date a notice of exercise is received by the Committee or, if not a date on which the applicable market is open, the next day that it is open.

 

2.16 “Initial Offering Period” shall mean the period commencing on the Section 423 Effective Date and ending on the date set forth in the Offering Document approved by the Administrator with respect to the Initial Offering Period.

 

2.17 “Offering Document” shall have the meaning given to such term in Section 4.1.

 

2.18 “Offering Period” shall have the meaning given to such term in Section 4.1.

 

2.19 “Parent” means any corporation, other than the Company, in an unbroken chain of corporations ending with the Company if, at the time of the determination, each of the corporations other than the Company owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

 

2.20 “Participant” means any Eligible Employee who has executed a subscription agreement and been granted rights to purchase Common Stock pursuant to the Plan.

 

2.21 “Purchase Date” means the last Trading Day of each Purchase Period.

 

2.22 “Purchase Period” shall refer to one or more periods within an Offering Period, as designated in the applicable Offering Document; provided, however, that, in the event no Purchase Period is designated by the Administrator in the applicable Offering Document, the Purchase Period for each Offering Period covered by such Offering Document shall be the same as the applicable Offering Period.

 

2.23 “Purchase Price” means the purchase price designated by the Administrator in the applicable Offering Document (which purchase price shall not be less than 85% of the Fair Market Value of a Share on the Enrollment Date or on the Purchase Date, whichever is lower); provided, however, that, in the event no purchase price is designated by the Administrator in the applicable Offering Document, the purchase price for the Offering Periods covered by such Offering Document shall be 85% of the Fair Market Value of a Share on the Enrollment Date or on the Purchase Date, whichever is lower; provided, further, that the Purchase Price may be adjusted by the Administrator pursuant to Article VIII and shall not be less than the par value of a Share.

 

2.24 “Section 423” means Section 423 of the Code.

 

 

 

 

2.25 “Section 423 Effective Date” shall have the meaning given to such term in Article I.

 

2.26 “Securities Act” means the Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder. Reference to a specific section of the Securities Act or regulation thereunder shall include such section or regulation, any valid regulation or interpretation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing, or superseding such section or regulation.

 

2.27 “Share” means a share of Common Stock.

 

2.28 “Subsidiary” means (i) on and after the Section 423 Effective Date, any corporation, other than the Company, in an unbroken chain of corporations beginning with the Company if, at the time of the determination, each of the corporations other than the last corporation in an unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain; provided, however, that a limited liability company or partnership may be treated as a Subsidiary to the extent either (a) such entity is treated as a disregarded entity under Treasury Regulation Section 301.7701-3(a) by reason of the Company or any other Subsidiary that is a corporation being the sole owner of such entity, or (b) such entity elects to be classified as a corporation under Treasury Regulation Section 301.7701-3(a) and such entity would otherwise qualify as a Subsidiary or (ii) prior to the Section 423 Effective Date, in addition to the entities in clause (i), “Subsidiary” may also include a subsidiary of the Company that would be described in the first sentence of Treasury Regulation Section 1.409A-1(b)(5)(iii)(E)(1).

 

2.29 “Trading Day” means a day on which national stock exchanges in the United States are open for trading.

 

ARTICLE III

SHARES SUBJECT TO THE PLAN

 

3.1 Number of Shares. Subject to Article VIII, the aggregate number of Shares that may be issued pursuant to rights granted under the Plan shall be 850,000 Shares. In addition to the foregoing, subject to Article VIII, the number of Shares that may be issued pursuant to rights granted under the Plan shall be subject to an annual increase on the first day of each fiscal year of the Company during the term of the Plan, commencing with the 2025 fiscal year, equal to (a) 1% of the aggregate number of Shares outstanding on the final day of the immediately preceding fiscal year on a fully diluted basis or (b) such smaller number of Shares as is determined by the Board. If any right granted under the Plan shall for any reason terminate without having been exercised, the Common Stock not purchased under such right shall again become available for issuance under the Plan.

 

3.2 Stock Distributed. Any Common Stock distributed pursuant to the Plan may consist, in whole or in part, of authorized and unissued Common Stock, treasury stock or Common Stock purchased on the open market.

 

 

 

 

ARTICLE IV

OFFERING PERIODS; OFFERING DOCUMENTS; PURCHASE DATES

 

4.1 Offering Periods. The Administrator may from time to time grant, or provide for the grant of, rights to purchase Shares under the Plan to Eligible Employees during one or more periods (each, an “Offering Period”) selected by the Administrator. The terms and conditions applicable to each Offering Period shall be set forth in an “Offering Document” adopted by the Administrator, which Offering Document shall be in such form and shall contain such terms and conditions as the Administrator shall deem appropriate and shall be incorporated by reference into and made part of the Plan and shall be attached hereto as part of the Plan. The Administrator shall establish in each Offering Document one or more Purchase Periods during such Offering Period during which rights granted under the Plan shall be exercised and purchases of Shares carried out during such Offering Period in accordance with such Offering Document and the Plan. The provisions of separate Offering Periods under the Plan need not be identical.

 

4.2 Offering Documents. Each Offering Document with respect to an Offering Period shall specify (through incorporation of the provisions of this Plan by reference or otherwise):

 

(a) the length of the Offering Period, which period shall not exceed twenty-seven months;

 

(b) the length of the Purchase Period(s) within the Offering Period;

 

(c) the maximum number of Shares that may be purchased by any Eligible Employee during such Offering Period which, in the absence of a contrary designation by the Administrator, shall be 25,000Shares; provided, that, in connection with each Offering Period that contains more than one Purchase Period, the maximum aggregate number of Shares which may be purchased by any Eligible Employee during each Purchase Period, which, in the absence of a contrary designation by the Administrator, shall be 25,000Shares; and

 

(d) such other provisions as the Administrator determines are appropriate, including, without limitation, a maximum number of Shares that may be purchased by all Participants during an Offering Period, subject to the provisions of the Plan.

 

ARTICLE V

ELIGIBILITY AND PARTICIPATION

 

5.1 Eligibility. Any Eligible Employee who shall be employed by the Company or a Designated Subsidiary on a given Enrollment Date for an Offering Period shall be eligible to participate in the Plan during such Offering Period, subject to the requirements of this Article V and, on or after the Section 423 Effective Date, the limitations imposed by Section 423(b) of the Code.

 

5.2 Enrollment in Plan.

 

(a) Except as otherwise set forth in an Offering Document or determined by the Administrator, an Eligible Employee may become a Participant in the Plan for an Offering Period by delivering a subscription agreement (including an electronic form) to the Company by such time prior to the Enrollment Date for such Offering Period (or such other date specified in the Offering Document) designated by the Administrator and in such form as the Company provides.

 

 

 

 

(b) Each subscription agreement shall designate a whole percentage of such Eligible Employee’s Compensation to be withheld by the Company or the Designated Subsidiary employing such Eligible Employee on each payday during the Offering Period as payroll deductions under the Plan or, if permitted by the Administrator, contributions to be made by such Eligible Employee. The designated percentage may not be less than 1% and may not be more than the maximum percentage specified by the Administrator in the applicable Offering Document (which percentage shall be 15% in the absence of any such designation, subject to the limits of this Plan). The payroll deductions or, if permitted by the Administrator, contributions made for each Participant shall be credited to an account for such Participant under the Plan and shall be deposited with the general funds of the Company.

 

(c) A Participant may decrease (but not increase) the percentage of Compensation designated in his or her subscription agreement, subject to the limits of this Section 5.2, or may suspend his or her payroll deductions, or, if permitted by the Administrator, contributions, at any time during an Offering Period; provided, however, that the Administrator may limit the number of changes a Participant may make to his or her payroll deduction elections or, if permitted by the Administrator, contributions, during each Offering Period in the applicable Offering Document (and in the absence of any specific designation by the Administrator, a Participant shall be allowed one change to his or her payroll deduction elections or, if permitted by the Administrator, contributions, during each Offering Period). Any such change or suspension of payroll deductions, or, if permitted by the Administrator, contributions, shall be effective with the first full payroll period that is at least five business days after the Company’s receipt of the new subscription agreement (or such shorter or longer period as may be specified by the Administrator in the applicable Offering Document). In the event a Participant suspends his or her payroll deductions or contributions, such Participant’s cumulative payroll deductions or contributions prior to the suspension shall remain in his or her account and shall be applied to the purchase of Shares on the next occurring Purchase Date and shall not be paid to such Participant unless he or she withdraws from participation in the Plan pursuant to Article VII.

 

(d) Except as set forth in Section 5.8, as otherwise set forth in an Offering Document or determined by the Administrator, a Participant may participate in the Plan only by means of payroll deduction and may not make contributions by lump sum payment for any Offering Period.

 

5.3 Payroll Deductions. Except as otherwise provided in the applicable Offering Document or Section 5.8, payroll deductions for a Participant shall commence on the first payroll following the Enrollment Date and shall end on the last payroll in the Offering Period to which the Participant’s authorization is applicable, unless sooner terminated by the Participant as provided in Article VII or suspended by the Participant or the Administrator as provided in Section 5.2 and Section 5.6, respectively.

 

 

 

 

5.4 Effect of Enrollment. A Participant’s completion of a subscription agreement will enroll such Participant in the Plan for each subsequent Offering Period on the terms contained therein until the Participant either submits a new subscription agreement, withdraws from participation under the Plan as provided in Article VII or otherwise becomes ineligible to participate in the Plan.

 

5.5 Limitation on Purchase of Common Stock. An Eligible Employee may be granted rights under the Plan only if such rights, together with any other rights granted to such Eligible Employee under “employee stock purchase plans” of the Company, any Parent or any Subsidiary, as specified by Section 423(b)(8) of the Code, do not permit such employee’s rights to purchase stock of the Company or any Parent or Subsidiary to accrue at a rate that exceeds $25,000 of the fair market value of such stock (determined as of the time which such rights are granted) for each fiscal year in which such rights are outstanding at any time. This limitation shall be applied in accordance with Section 423(b)(8) of the Code. For the avoidance of doubt, this limitation shall apply to rights granted both before and after the Section 423 Effective Date.

 

5.6 Suspension of Payroll Deductions or Contributions. Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of the Code and Section 5.5 or the other limitations set forth in this Plan, a Participant’s payroll deductions or contributions may be suspended or discontinued by the Administrator at any time during an Offering Period. The balance of the amount credited to the account of each Participant that has not been applied to the purchase of Shares by reason of Section 423(b)(8) of the Code, Section 5.5 or the other limitations set forth in this Plan shall be paid to such Participant in one lump sum in cash as soon as reasonably practicable after the Purchase Date.

 

5.7 Foreign Employees. In order to facilitate participation in the Plan, the Administrator may provide for such special terms applicable to Participants who are citizens or residents of a foreign jurisdiction, or who are employed by a Designated Subsidiary outside of the United States, as the Administrator may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. Such special terms may not be more favorable than the terms of rights granted under the Plan to Eligible Employees who are residents of the United States. Moreover, the Administrator may approve such supplements to, or amendments, restatements or alternative versions of, this Plan as it may consider necessary or appropriate for such purposes without thereby affecting the terms of this Plan as in effect for any other purpose. No such special terms, supplements, amendments or restatements shall include any provisions that are inconsistent with the terms of this Plan as then in effect unless this Plan could have been amended to eliminate such inconsistency without further approval by the stockholders of the Company.

 

5.8 Leave of Absence. During leaves of absence approved by the Company meeting the requirements of Treasury Regulation Section 1.421-1(h)(2) under the Code, a Participant may continue participation in the Plan by making cash payments to the Company on his or her normal payday equal to his or her authorized payroll deduction.

 

 

 

 

ARTICLE VI

GRANT AND EXERCISE OF RIGHTS

 

6.1 Grant of Rights. On the Enrollment Date of each Offering Period, each Eligible Employee participating in such Offering Period shall be granted a right to purchase, subject to the maximum number of Shares specified under Section 4.2 and the limits in Section 5.5, on each Purchase Date during such Offering Period (at the applicable Purchase Price), a number of whole Shares as is determined by dividing (a) such Participant’s payroll deductions or permitted contributions accumulated prior to such Purchase Date and retained in the Participant’s account as of the Purchase Date, by (b) the applicable Purchase Price (rounded down to the nearest Share). The right shall expire on the earliest of: (i) the last Purchase Date of the Offering Period, (ii) the last day of the Offering Period and (iii) the date on which the Participant withdraws from an Offering Period or the Plan in accordance with Section 7.1 or Section 7.3, as applicable.

 

6.2 Exercise of Rights. On each Purchase Date, each Participant’s accumulated payroll deductions or permitted contributions and any other additional payments specifically provided for in the applicable Offering Document will be applied to the purchase of whole Shares, up to the maximum number of Shares permitted pursuant to the terms of the Plan and the applicable Offering Document, at the Purchase Price. No fractional Shares shall be issued upon the exercise of rights granted under the Plan, unless the Offering Document specifically provides otherwise. Any cash in lieu of fractional Shares remaining after the purchase of whole Shares upon exercise of a purchase right will be credited to a Participant’s account and returned to the Participant in one lump sum payment in a subsequent payroll check as soon as practicable after the Purchase Date. Shares issued pursuant to the Plan may be evidenced in such manner as the Administrator may determine and may be issued in certificated form or issued pursuant to book-entry procedures.

 

6.3 Pro Rata Allocation of Shares. If the Administrator determines that, on a given Purchase Date, the number of Shares with respect to which rights are to be exercised may exceed (a) the number of Shares that were available for issuance under the Plan on the Enrollment Date of the applicable Offering Period, or (b) the number of Shares available for issuance under the Plan on such Purchase Date, the Administrator may in its sole discretion provide that the Company shall make a pro rata allocation of the Shares available for purchase on such Enrollment Date or Purchase Date, as applicable, in as uniform a manner as shall be practicable and as it shall determine in its sole discretion to be equitable among all Participants for whom rights to purchase Common Stock are to be exercised pursuant to this Article VI on such Purchase Date, and shall either (i) continue all Offering Periods then in effect, or (ii) terminate any or all Offering Periods then in effect pursuant to Article IX. The Company may allocate, on a pro rata basis, the Shares available on the Enrollment Date of any applicable Offering Period pursuant to the preceding sentence, notwithstanding any authorization of additional Shares for issuance under the Plan by the Company’s stockholders subsequent to such Enrollment Date. The balance of the amount credited to the account of each Participant that has not been applied to the purchase of Shares shall be paid to such Participant in one lump sum in cash as soon as reasonably practicable after the Purchase Date.

 

 

 

 

6.4 Withholding. At the time a Participant’s rights under the Plan are exercised, in whole or in part, or at the time some or all of the Common Stock issued under the Plan are disposed of, the Participant must make adequate provision for the Company’s federal, state, or other tax withholding obligations, if any, that arise upon the exercise of the right or the disposition of the Common Stock. At any time, the Company may, but shall not be obligated to, withhold from the Participant’s compensation the amount necessary for the Company to meet applicable withholding obligations, including any withholding required to make available to the Company any tax deductions or benefits attributable to sale or early disposition of Common Stock by the Participant.

 

6.5 Conditions to Issuance of Common Stock. The Company shall not be required to issue or deliver any certificate or certificates for, or make any book entries evidencing, Shares purchased upon the exercise of rights under the Plan prior to fulfillment of all of the following conditions:

 

(a) the admission of such Shares to listing on all stock exchanges, if any, on which the Common Stock is then listed;

 

(b) the completion of any registration or other qualification of such Shares under any state or federal law or under the rulings or regulations of the Securities and Exchange Commission or any other governmental regulatory body, that the Administrator shall, in its absolute discretion, deem necessary or advisable;

 

(c) the obtaining of any approval or other clearance from any state or federal governmental agency that the Administrator shall, in its absolute discretion, determine to be necessary or advisable;

 

(d) the payment to the Company of all amounts that it is required to withhold under federal, state or local law upon exercise of the rights, if any; and

 

(e) the lapse of such reasonable period of time following the exercise of the rights as the Administrator may from time to time establish for reasons of administrative convenience.

 

6.6 Holding Period. The Administrator may provide in an Offering Document that Shares acquired pursuant to this Plan will be subject to a minimum holding period following the applicable Purchase Date, during which the Participant shall not be permitted to sell or otherwise transfer the Shares.

 

 

 

 

ARTICLE VII

WITHDRAWAL; CESSATION OF ELIGIBILITY

 

7.1 Withdrawal. A Participant may withdraw during an Offering Period all, but not less than all, of the payroll deductions or contributions credited to his or her account and not yet used to exercise his or her rights under the Plan at any time by giving written notice to the Company in a form acceptable to the Company no later than one week prior to the end of the Offering Period (or such shorter or longer period specified by the Administrator in the Offering Document). All of the Participant’s payroll deductions credited to his or her account or contributions made by the Participant during an Offering Period that are not yet used to exercise the Participant’s rights under the Plan shall be paid to such Participant as soon as reasonably practicable after receipt of notice of withdrawal and such Participant’s rights for the Offering Period shall be automatically terminated, and no further payroll deductions for the purchase of Shares shall be made or contributions accepted for such Offering Period. If a Participant withdraws from an Offering Period, payroll deductions shall not resume at the beginning of the next Offering Period unless the Participant timely delivers to the Company a new subscription agreement pursuant to Section 5.2.

 

7.2 Future Participation. A Participant’s withdrawal from an Offering Period shall not have any effect upon his or her eligibility to participate in any similar plan that may hereafter be adopted by the Company or a Designated Subsidiary, or in subsequent Offering Periods that commence after the termination of the Offering Period from which the Participant withdraws.

 

7.3 Cessation of Eligibility. Upon a Participant’s ceasing to be an Eligible Employee for any reason, he or she shall be deemed to have elected to withdraw from the Plan pursuant to this Article VII and the payroll deductions credited to such Participant’s account or contributions made by such Participant during the Offering Period shall be paid to such Participant or, in the case of his or her death, to the person or persons entitled thereto under Section 12.4, as soon as reasonably practicable, and such Participant’s rights for the Offering Period shall be automatically terminated.

 

ARTICLE VIII

ADJUSTMENTS UPON CHANGES IN STOCK

 

8.1 Changes in Capitalization. Subject to Section 8.3, in the event that the Administrator determines that any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), change in control, reorganization, merger, amalgamation, consolidation, combination, repurchase, recapitalization, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or sale or exchange of Common Stock or other securities of the Company, issuance of warrants or other rights to purchase Common Stock or other securities of the Company, or other similar corporate transaction or event, as determined by the Administrator, affects the Common Stock such that an adjustment is determined by the Administrator to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under the Plan or with respect to any outstanding purchase rights under the Plan, the Administrator shall make equitable adjustments, if any, to reflect such change with respect to (a) the aggregate number and type of Shares (or other securities or property) that may be issued under the Plan (including, but not limited to, adjustments of the limitations in Section 3.1 and the limitations established in each Offering Document pursuant to Section 4.2 on the maximum number of Shares that may be purchased); (b) the class(es) and number of Shares and price per Share subject to outstanding rights; and (c) the Purchase Price with respect to any outstanding rights.

 

 

 

 

8.2 Other Adjustments. Subject to Section 8.3, in the event of any transaction or event described in Section 8.1 or any unusual or nonrecurring transactions or events affecting the Company, any affiliate of the Company, or the financial statements of the Company or any affiliate (including without limitation any change in control), or of changes in Applicable Law or accounting principles, the Administrator, in its discretion, and on such terms and conditions as it deems appropriate, is hereby authorized to take any one or more of the following actions whenever the Administrator determines that such action is appropriate in order to prevent the dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to any right under the Plan, to facilitate such transactions or events or to give effect to such changes in laws, regulations or principles:

 

(a) to provide for either (i) the termination of any outstanding right in exchange for an amount of cash, if any, equal to the amount that would have been obtained upon the exercise of such right had such right been currently exercisable or (ii) the replacement of such outstanding right with other rights or property selected by the Administrator in its sole discretion;

 

(b) to provide that the outstanding rights to purchase Shares granted under the Plan shall be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar rights covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices;

 

(c) to make adjustments in the number and type of Shares (or other securities or property) subject to outstanding rights to purchase Shares granted under the Plan and/or in the terms and conditions of outstanding rights and rights that may be granted in the future;

 

(d) to provide that Participants’ accumulated payroll deductions or contributions may be used to purchase Shares prior to the next occurring Purchase Date on such date as the Administrator determines in its sole discretion and the Participants’ rights under the ongoing Offering Period(s) shall be terminated as of such prior purchase date; and

 

(e) to provide that all outstanding rights to purchase Shares granted under the Plan shall terminate without being exercised.

 

8.3 No Adjustment Under Certain Circumstances. No adjustment or action described in this Article VIII or in any other provision of the Plan shall be authorized to the extent that such adjustment or action would cause the Plan to fail to satisfy the requirements of Section 423 of the Code.

 

8.4 No Other Rights. Except as expressly provided in the Plan, no Participant shall have any rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend, any increase or decrease in the number of shares of stock of any class or any dissolution, liquidation, merger, or consolidation of the Company or any other corporation. Except as expressly provided in the Plan or pursuant to action of the Administrator under the Plan, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number of Shares subject to outstanding rights under the Plan or the Purchase Price with respect to any outstanding rights.

 

 

 

 

ARTICLE IX

AMENDMENT, MODIFICATION AND TERMINATION

 

9.1 Amendment, Modification and Termination. The Administrator may amend, suspend or terminate the Plan at any time and from time to time; provided, however, that approval of the Company’s stockholders shall be required to amend the Plan to: (a) increase the aggregate number, or change the type, of shares that may be sold pursuant to rights granted under the Plan under Section 3.1 (other than an adjustment as provided by Article VIII); (b) change the corporations or classes of corporations whose employees may be granted rights under the Plan; or (c) following the Section 423 Effective Date, change the Plan in any manner that would cause the Plan to no longer be an “employee stock purchase plan” within the meaning of Section 423(b) of the Code.

 

9.2 Certain Changes to Plan. Without stockholder consent and without regard to whether any Participant rights may be considered to have been adversely affected, to the extent permitted by Section 423 of the Code, the Administrator shall be entitled to change or terminate the Offering Periods, limit the frequency and/or number of changes in the amount withheld from Compensation during an Offering Period, establish the exchange ratio applicable to amounts withheld in a currency other than U.S. dollars, permit payroll withholding in excess of the amount designated by a Participant in order to adjust for delays or mistakes in the Company’s processing of payroll withholding elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Common Stock for each Participant properly correspond with amounts withheld from the Participant’s Compensation, and establish such other limitations or procedures as the Administrator determines in its sole discretion to be advisable that are consistent with the Plan.

 

9.3 Actions In the Event of Unfavorable Financial Accounting Consequences. In the event the Administrator determines that the ongoing operation of the Plan may result in unfavorable financial accounting consequences, the Administrator may, in its discretion and, to the extent necessary or desirable, modify or amend the Plan to reduce or eliminate such accounting consequence including, but not limited to:

 

(a) altering the Purchase Price for any Offering Period including an Offering Period underway at the time of the change in Purchase Price;

 

(b) shortening any Offering Period so that the Offering Period ends on a new Purchase Date, including an Offering Period underway at the time of the Administrator action; and

 

(c) allocating Shares.

 

 

 

 

Such modifications or amendments shall not require stockholder approval or the consent of any Participant.

 

9.4 Payments Upon Termination of Plan. Upon termination of the Plan, the balance in each Participant’s Plan account shall be refunded as soon as practicable after such termination, without any interest thereon.

 

ARTICLE X

TERM OF PLAN

 

The Plan shall be effective on the Effective Date. The effectiveness of the Plan shall be subject to approval of the Plan by the stockholders of the Company within twelve months following the date the Plan is first approved by the Board. No right may be granted under the Plan prior to such stockholder approval. No right may be granted under the Plan after the tenth anniversary of the date of the initial adoption of the Plan by the Board, unless sooner terminated under Section 9.1 hereof. No rights may be granted under the Plan during any period of suspension of the Plan or after termination of the Plan.

 

ARTICLE XI

ADMINISTRATION

 

11.1 Administrator. Unless otherwise determined by the Board, the Administrator of the Plan shall be the Committee. The Board may at any time vest in the Board any authority or duties for administration of the Plan. The Administrator may delegate administrative tasks under this Plan to the services of a brokerage firm, bank or other financial institution or Employees to assist in the administration of this Plan, including establishing and maintaining an individual securities account under this Plan for each Participant.

 

11.2 Authority of Administrator. In addition to the other authority of the Administrator set forth in this Plan, the Administrator shall have full discretionary authority, subject to, and within the limitations of, the express provisions of the Plan:

 

(a) to determine when and how rights to purchase Common Stock shall be granted and the provisions of each offering of such rights (which need not be identical);

 

(b) to designate from time to time which Subsidiaries of the Company shall be Designated Subsidiaries, which designation may be made without the approval of the stockholders of the Company;

 

(c) to impose a mandatory holding period pursuant to which Employees may not dispose of or transfer Shares purchased under this Plan for a period of time determined by the Administrator in its discretion, consistent with Applicable Law;

 

(d) to construe and interpret the Plan and rights granted under it, and to establish, amend and revoke rules and regulations for its administration. The Administrator, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan, in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective;

 

 

 

 

(e) to amend, suspend or terminate the Plan as provided in Article IX; and

 

(f) generally, to exercise such powers and to perform such acts as the Administrator deems necessary or expedient to promote the best interests of the Company and its Designated Subsidiaries.

 

11.3 Decisions Binding. The Administrator’s interpretation of the Plan, any rights granted pursuant to the Plan, any subscription agreement and all decisions and determinations by the Administrator with respect to the Plan are final, binding, and conclusive on all parties.

 

ARTICLE XII

MISCELLANEOUS

 

12.1 Restriction upon Assignment. A right granted under the Plan shall not be transferable other than by will or the applicable laws of descent and distribution, and is exercisable during the Participant’s lifetime only by the Participant. Except as provided in Section 12.4 hereof, a right under the Plan may not be exercised to any extent except by the Participant. The Company shall not recognize and shall be under no duty to recognize any assignment or alienation of the Participant’s interest in the Plan, the Participant’s rights under the Plan or any rights thereunder.

 

12.2 Rights as a Stockholder. With respect to Shares subject to a right granted under the Plan, a Participant shall not be deemed to be a stockholder of the Company, and the Participant shall not have any of the rights or privileges of a stockholder, until such Shares have been issued to the Participant or his or her nominee following exercise of the Participant’s rights under the Plan. No adjustments shall be made for dividends (ordinary or extraordinary, whether in cash securities, or other property) or distribution or other rights for which the record date occurs prior to the date of such issuance, except as otherwise expressly provided herein or as determined by the Administrator.

 

12.3 Interest. No interest shall accrue on the payroll deductions or contributions of a Participant under the Plan.

 

12.4 Section 409A. Prior to the Section 423 Effective Date, the Plan and all rights hereunder are intended to be exempt from Section 409A of the Code as “short-term deferrals” within the meaning of Treasury Regulation Section 1.409A-1(b)(4), and following the Section 423 Effective Date, as “statutory stock options” within the meaning of Treasury Regulation Section 1.409A-1(b)(5)(ii), and the Plan will be interpreted and administered accordingly. Notwithstanding any provision of the Plan to the contrary, if the Administrator determines that any right to purchase Shares granted under the Plan may be or become subject to Section 409A of the Code or that any provision of the Plan may cause a right to purchase Shares granted under the Plan to be or become subject to Section 409A of the Code, the Administrator may adopt such amendments to the Plan and/or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions as the Administrator determines are necessary or appropriate to avoid the imposition of taxes under Section 409A of the Code, either through compliance with the requirements of Section 409A of the Code or with an available exemption therefrom. Notwithstanding anything to the contrary in the Plan, none of the Company, any of its affiliates, the Administrator, or any Person acting on behalf of the Company, any of its affiliates or the Administrator, will be liable to any Participant or other Person by reason of any acceleration of income, any additional tax, or any other tax or liability asserted by reason of the failure of the Plan to be exempt from or satisfy the requirements of Section 409A of the Code.

 

 

 

 

12.5 Designation of Beneficiary.

 

(a) A Participant may, in the manner determined by the Administrator, file a written designation of a beneficiary who is to receive any Shares and/or cash, if any, from the Participant’s account under the Plan in the event of such Participant’s death subsequent to a Purchase Date on which the Participant’s rights are exercised but prior to delivery to such Participant of such Shares and cash. In addition, a Participant may file a written designation of a beneficiary who is to receive any cash from the Participant’s account under the Plan in the event of such Participant’s death prior to exercise of the Participant’s rights under the Plan. If the Participant is married and resides in a community property state, a designation of a person other than the Participant’s spouse as his or her beneficiary shall not be effective without the prior written consent of the Participant’s spouse.

 

(b) Such designation of beneficiary may be changed by the Participant at any time by written notice to the Company. In the event of the death of a Participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such Participant’s death, the Company shall deliver such Shares and/or cash to the executor or administrator of the estate of the Participant, or if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such Shares and/or cash to the spouse or to any one or more dependents or relatives of the Participant, or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate.

 

12.6 Notices. All notices or other communications by a Participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.

 

12.7 Equal Rights and Privileges. Following the Section 423 Effective Date and subject to Section 5.7, (i) all Eligible Employees will have equal rights and privileges under this Plan so that this Plan qualifies as an “employee stock purchase plan” within the meaning of Section 423 of the Code and (ii) any provision of this Plan that is inconsistent with Section 423 of the Code will, without further act or amendment by the Company, the Board or the Administrator, be reformed to comply with the equal rights and privileges requirement of Section 423 of the Code.

 

 

 

 

12.8 Use of Funds. All payroll deductions or contributions received or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll deductions or contributions.

 

12.9 Reports. Statements of account shall be given to Participants at least annually, which statements shall set forth the amounts of payroll deductions or contributions, the Purchase Price, the number of Shares purchased and the remaining cash balance, if any.

 

12.10 No Employment Rights. Nothing in the Plan shall be construed to give any person (including any Eligible Employee or Participant) the right to remain in the employ of the Company or any Parent or Subsidiary or affect the right of the Company or any Parent or Subsidiary to terminate the employment of any person (including any Eligible Employee or Participant) at any time, with or without cause.

 

12.11 Compliance with Securities Laws. Notwithstanding any other provision of the Plan, the Plan and the participation in the Plan by any individual who is then subject to Section 16 of the Exchange Act shall be subject to any additional limitations set forth in any applicable exemption rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To the extent permitted by Applicable Law, the Plan shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.

 

12.12 Notice of Disposition of Shares. With respect to Shares acquired pursuant to rights granted under the Plan following the Section 423 Effective Date, each Participant shall give prompt notice to the Company of any disposition or other transfer of any Shares purchased upon exercise of such right if such disposition or transfer is made: (a) within two years from the Enrollment Date of the Offering Period in which the Shares were purchased or (b) within one year after the Purchase Date on which such Shares were purchased. Such notice shall specify the date of such disposition or other transfer and the amount realized, in cash, other property, assumption of indebtedness or other consideration, by the Participant in such disposition or other transfer.

 

12.13 Governing Law. The Plan and any agreements hereunder shall be administered, interpreted and enforced under the internal laws of the State of Delaware without regard to conflicts of laws thereof or of any other jurisdiction.

 

12.14 Electronic Forms. To the extent permitted by Applicable Law and in the discretion of the Administrator, an Eligible Employee may submit any form or notice as set forth herein by means of an electronic form approved by the Administrator. Before the commencement of an Offering Period, the Administrator shall prescribe the time limits within which any such electronic form shall be submitted to the Administrator with respect to such Offering Period in order to be a valid election.

 

 

 

 

12.15 Construction. The following rules of construction will apply to the Plan, any Offering Document and any written instrument provided or subject thereunder: (a) the word “or” is disjunctive but not necessarily exclusive, (b) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”, and (c) words in the singular include the plural, words in the plural include the singular, and words in the neuter gender include the masculine and feminine genders and words in the masculine or feminine gender include the other neuter genders.

 

12.16 Severability of Provisions. If any portion of the Plan or any Offering Document is declared by any court or governmental authority to be unlawful, unenforceable or invalid, such unlawfulness, unenforceability or invalidity shall not affect any other portion of the Plan or such Offering Document and the Plan or such Offering Document shall be construed and enforced as if such provisions had not been included. Any Section or part of a Section of the Plan or any Offering Document so declared to be unlawful, unenforceable or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

 

12.17 Headings and Captions. The headings and captions herein are provided for reference and convenience only, shall not be considered part of the Plan, and shall not be employed in the construction of the Plan.

 

 

 

EX-10.20

Exhibit 10.20

 

INDEMNITY AGREEMENT

 

THIS INDEMNITY AGREEMENT (this “Agreement”) is made as of _____, by and between Pinstripes Holdings, Inc., a Delaware corporation (the “Company”), and _____ (“Indemnitee”).

 

RECITALS

 

WHEREAS, highly competent persons have become more reluctant to serve publicly-held corporations as directors, officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of such corporations;

 

WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and any of its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based publicly-traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The Second Amended and Restated Certificate of Incorporation of the Company (the “Charter”) and the Amended and Restated Bylaws of the Company (the “Bylaws”) require indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant to applicable provisions of the Delaware General Corporation Law (“DGCL”). The Charter, the Bylaws and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the Board, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;

 

WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;

 

WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;

 

WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, hold harmless, exonerate and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so protected against liabilities;

 

 

 

 

WHEREAS, this Agreement is a supplement to and in furtherance of the Charter and the Bylaws and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;

 

WHEREAS, Indemnitee may not be willing to serve as an officer or director, advisor or in another capacity without adequate protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that Indemnitee be so indemnified; and

 

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:

 

TERMS AND CONDITIONS

 

1.            SERVICES TO THE COMPANY. In consideration of the Company’s covenants and obligations hereunder, Indemnitee will serve or continue to serve as an officer, director, advisor, key employee or in any other capacity of the Company, as applicable, for so long as Indemnitee is duly elected, appointed or retained or until Indemnitee tenders Indemnitee’s resignation or until Indemnitee is removed. The foregoing notwithstanding, this Agreement shall continue in full force and effect after Indemnitee has ceased to serve as a director, officer, advisor, key employee or in any other capacity of the Company, as provided in Section 17. This Agreement, however, shall not impose any obligation on Indemnitee or the Company to continue Indemnitee’s service to the Company beyond any period otherwise required by law or by other agreements or commitments of the parties, if any.

 

2.            DEFINITIONS. As used in this Agreement:

 

2.1            References to “Agent” shall mean any person who is or was a director, officer or employee of the Company or a subsidiary of the Company or other person authorized by the Company to act for the Company, to include such person serving in such capacity as a director, officer, employee, advisor, fiduciary or other official of another corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request of, for the convenience of, or to represent the interests of the Company or a subsidiary of the Company.

 

2.2            The terms “Beneficial Owner” and “Beneficial Ownership” shall have the meanings set forth in Rule 13d-3 promulgated under the Exchange Act (as defined below) as in effect on the date hereof.

 

2.3            A “Change in Control” shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events:

 

2.3.1            Acquisition of Stock by Third Party. Any Person (as defined below) that is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors, unless (1) the change in the relative Beneficial Ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors, or (2) such acquisition was approved in advance by the Continuing Directors (as defined below) and such acquisition would not constitute a Change in Control under part 2.4.3 of this definition;

 

 

 

 

2.3.2            Change in Board of Directors. Individuals who, as of the date hereof, constitute the Board, and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who were directors on the date hereof or whose election or nomination for election was previously so approved (collectively, the “Continuing Directors”), cease for any reason to constitute at least a majority of the members of the Board;

 

2.3.3            Corporate Transactions. The effective date of a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving the Company and one or more businesses (a “Business Combination”), in each case, unless, following such Business Combination: (1) all or substantially all of the individuals and entities who were the Beneficial Owners of securities entitled to vote generally in the election of directors immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of directors resulting from such Business Combination (including a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more Subsidiaries (as defined below)) in substantially the same proportions as their ownership immediately prior to such Business Combination, of the securities entitled to vote generally in the election of directors; (2) no Person (excluding any corporation resulting from such Business Combination) is the Beneficial Owner, directly or indirectly, of twenty-five percent (25%) or more of the combined voting power of the then outstanding securities entitled to vote generally in the election of directors of the surviving corporation except to the extent that such ownership existed prior to the Business Combination; and (3) at least a majority of the Board of Directors of the corporation resulting from such Business Combination were Continuing Directors at the time of the execution of the initial agreement, or of the action of the Board of Directors, providing for such Business Combination; or

 

2.3.4            Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement or series of agreements for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than factoring the Company’s current receivables (or, if such stockholder approval is not required, the decision by the Board to proceed with such a liquidation, sale, or disposition in one transaction or a series of related transactions).

 

2.4            “Corporate Status” describes the status of a person who is or was a director, officer, trustee, general partner, manager, managing member, fiduciary, advisor, employee or Agent of the Company or of any other Enterprise (as defined below) which such person is or was serving at the request of the Company.

 

 

 

 

2.5            “Delaware Court” shall mean the Court of Chancery of the State of Delaware.

 

2.6            “Disinterested Director” shall mean a director of the Company who is not and was not a party to the Proceeding (as defined below) in respect of which indemnification is sought by Indemnitee.

 

2.7            “Enterprise” shall mean the Company and any other corporation, constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger to which the Company (or any of its wholly owned subsidiaries) is a party, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, trustee, general partner, manager, managing member, fiduciary, advisor, employee or Agent.

 

2.8            “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

2.9            “Expenses” shall include all direct and indirect costs, fees and expenses of any type or nature whatsoever, including all reasonable attorneys’ fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, fees of private investigators and professional advisors, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, fax transmission charges, secretarial services and all other disbursements, obligations or expenses in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settlement or appeal of, or otherwise participating in, a Proceeding (as defined below), including reasonable compensation for time spent by Indemnitee for which such Indemnitee is not otherwise compensated by the Company or any third party. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding, including the principal, premium, security for, and other costs relating to any cost bond, supersedes bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.

 

2.10            References to “fines” shall include any excise tax assessed on Indemnitee with respect to any employee benefit plan;

 

2.11            References to “serving at the request of the Company” shall include any service as a director, officer, employee, Agent or fiduciary of the Company which imposes duties on, or involves services by, such director, officer, employee, Agent or fiduciary with respect to an employee benefit plan, its participants or beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Agreement.

 

 

 

 

2.12            “Independent Counsel” shall mean a law firm or a member of a law firm with significant experience in matters of corporate law and that neither presently is, nor in the past five years (5) has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements); or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

 

2.13            The term “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act as in effect on the date hereof; provided, however, that “Person” shall exclude: (i) the Company; (ii) any Subsidiaries (as defined below) of the Company; (iii) any employment benefit plan of the Company or of a Subsidiary of the Company or of any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company; and (iv) any trustee or other fiduciary holding securities under an employee benefit plan of the Company or of a Subsidiary of the Company or of a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.

 

2.14            The term “Proceeding” shall include any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative or investigative or related nature, in which Indemnitee was, is, will or might be involved as a party or otherwise by reason of the fact that Indemnitee is or was a director or officer of the Company, by reason of any action (or failure to act) taken by Indemnitee or of any action (or failure to act) on Indemnitee’s part while acting as a director or officer of the Company, or by reason of the fact that Indemnitee is or was serving at the request of the Company as a director, officer, trustee, general partner, manager, managing member, fiduciary, employee or Agent of any other Enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement, or advancement of expenses can be provided under this Agreement.

 

2.15            The term “Subsidiary,” with respect to any Person, shall mean (i) any corporation of which more than fifty percent (50%) of the outstanding voting securities are owned directly or indirectly by the Company, or which is otherwise controlled by the Company, and (ii) any partnership, limited liability company, joint venture, trust or other entity of which more than fifty percent (50%) of the equity interest is owned directly or indirectly by the Company, or which is otherwise controlled by the Company

 

 

 

 

2.16            The phrase “to the fullest extent permitted by applicable law” shall include, but not be limited to: (a) to the fullest extent authorized or permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL, and (b) to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors.

 

3.            INDEMNITY IN THIRD-PARTY PROCEEDINGS.

 

To the fullest extent permitted by applicable law, the Company shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 3 if Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness, deponent or otherwise) in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor by reason of Indemnitee’s Corporate Status. Pursuant to this Section 3, Indemnitee shall be indemnified, held harmless and exonerated against all Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that Indemnitee’s conduct was unlawful.

 

4.            INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.

 

To the fullest extent permitted by applicable law, the Company shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 4 if Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness, deponent or otherwise) in any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of Indemnitee’s Corporate Status. Pursuant to this Section 4, Indemnitee shall be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. No indemnification, hold harmless or exoneration for Expenses shall be made under this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by a court of competent jurisdiction to be liable to the Company, unless and only to the extent that any court in which the Proceeding was brought or the Delaware Court shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, to be held harmless or to exoneration.

 

 

 

 

5.            INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL.

 

Notwithstanding any other provisions of this Agreement, to the extent that Indemnitee was or is, by reason of Indemnitee’s Corporate Status, a party to (or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter. If Indemnitee is not wholly successful in such Proceeding, the Company also shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses reasonably incurred in connection with a claim, issue or matter related to any claim, issue, or matter on which Indemnitee was successful. For purposes of this Section 5 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

 

6.            INDEMNIFICATION FOR EXPENSES OF A WITNESS.

 

Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a witness or deponent in any Proceeding to which Indemnitee was or is not a party or threatened to be made a party, Indemnitee shall, to the fullest extent permitted by applicable law, be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.

 

7.            ADDITIONAL INDEMNIFICATION, HOLD HARMLESS AND EXONERATION RIGHTS.

 

Notwithstanding any limitation in Sections 3, 4, or 5 hereof, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection with the Proceeding. No indemnification, hold harmless or exoneration rights shall be available under this Section 7 on account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty of loyalty to the Company or its stockholders or is an act or omission not in good faith or which involves intentional misconduct or a knowing violation of applicable law.

 

 

 

 

8.            CONTRIBUTION IN THE EVENT OF JOINT LIABILITY.

 

8.1            To the fullest extent permissible under applicable law, if the indemnification, hold harmless and/or exoneration rights provided for in this Agreement are unavailable to Indemnitee in whole or in part for any reason whatsoever, the Company, in lieu of indemnifying, holding harmless or exonerating Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for judgments, liabilities, fines, penalties, amounts paid or to be paid in settlement and/or for Expenses, in connection with any Proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have at any time against Indemnitee.

 

8.2            The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.

 

8.3            The Company hereby agrees to fully indemnify, hold harmless and exonerate Indemnitee from any claims for contribution which may be brought by officers, directors or employees of the Company other than Indemnitee who may be jointly liable with Indemnitee.

 

9.            EXCLUSIONS.

 

Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnification, advance expenses, hold harmless or exoneration payment in connection with any claim made against Indemnitee:

 

9.1            for which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity or advancement provision and which payment has not subsequently been returned, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity or advancement provision or otherwise;

 

9.2            for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section l6(b) of the Exchange Act (or any successor rule) or similar provisions of state statutory law or common law;

 

9.3            for any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or

 

9.4            except as otherwise provided in Sections 14.5 and 14.6 hereof, prior to a Change in Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, hold harmless or exoneration payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law.

 

 

 

 

10.            ADVANCES OF EXPENSES; DEFENSE OF CLAIM.

 

10.1            Notwithstanding any provision of this Agreement to the contrary, and to the fullest extent not prohibited by applicable law, the Company shall pay the Expenses incurred by Indemnitee (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) in connection with any Proceeding within ten (10) days after the receipt by the Company of a statement or statements requesting such advances from time to time, prior to the final disposition of any Proceeding. Advances shall, to the fullest extent permitted by law, be unsecured and interest free. Advances shall, to the fullest extent permitted by law, be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to be indemnified, held harmless or exonerated under the other provisions of this Agreement. Advances shall include any and all reasonable Expenses incurred pursuing a Proceeding to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed The Indemnitee hereby undertakes to repay any amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled under this Agreement to be indemnified by the Company in respect thereof. No other form of undertaking shall be required of Indemnitee other than the execution of this Agreement. This Section 10.1 shall not apply to any claim made by Indemnitee for which an indemnification, hold harmless or exoneration payment is excluded pursuant to Section 9.

 

10.2            The Company will be entitled to participate in the Proceeding at its own expense.

 

10.3            The Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, liability, judgment, fine, penalty or limitation on Indemnitee or which includes any admission as to fault or culpability on the part of Indemnitee without Indemnitee’s prior written consent.

 

11.            PROCEDURE FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.

 

11.1            Indemnitee agrees to notify promptly the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding, claim, issue or matter therein which may be subject to indemnification, hold harmless or exoneration rights, or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement, unless, and to the extent that, such failure actually and materially prejudices the interests of the Company

 

11.2            Indemnitee may deliver to the Company a written application to indemnify, hold harmless or exonerate Indemnitee in accordance with this Agreement. Such application(s) may be delivered from time to time and at such time(s) as Indemnitee deems appropriate in such Indemnitee’s sole discretion. Following such a written application for indemnification by Indemnitee, Indemnitee’s entitlement to indemnification shall be determined according to Section 12.1 of this Agreement.

 

 

 

 

12.            PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.

 

12.1            A determination, if required by applicable law, with respect to Indemnitee’s entitlement to indemnification shall be made in the specific case by one of the following methods, which shall be at the election of Indemnitee: (i) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, (iii) if there are no Disinterested Directors or if such directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (iv) by vote of the stockholders. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including reasonable attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.

 

12.2            In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12.1 hereof, the Independent Counsel shall be selected as provided in this Section 12.2. The Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 11.2 hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Delaware Court, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 12.1 hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14.1 of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

 

 

 

 

12.3            The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

 

13.            PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.

 

13.1            In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 11.2 of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by the Disinterested Directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

 

13.2            If the person, persons or entity empowered or selected under Section 12 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be, to the fullest extent permitted by law, deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto.

 

 

 

 

13.3            The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.

 

13.4            For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by other directors, managers, managing members or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member. The provisions of this Section 13.4 shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement.

 

13.5            The knowledge and/or actions, or failure to act, of any other director, officer, trustee, partner, manager, managing member, fiduciary, advisor, Agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

 

14.            REMEDIES OF INDEMNITEE.

 

14.1            In the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses, to the fullest extent permitted by applicable law, is not timely made pursuant to Section 10 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 12.1 of this Agreement within thirty (30) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Sections 5, 6, 7 or the last sentence of Section 12.1 of this Agreement within ten (10) days after receipt by the Company of a written request therefor, (v) a contribution payment is not made in a timely manner pursuant to Section 8 of this Agreement, (vi) payment of indemnification pursuant to Section 3 or 4 of this Agreement is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, or (vii) payment to Indemnitee pursuant to any hold harmless or exoneration rights under this Agreement or otherwise is not made within ten (10) days after receipt by the Company of a written request therefor, Indemnitee shall be entitled to an adjudication by the Delaware Court to such indemnification, hold harmless, exoneration, contribution or advancement rights. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. Except as set forth herein, the provisions of Delaware law (without regard to its conflict of laws rules) shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.

 

 

 

 

14.2            In the event that a determination shall have been made pursuant to Section 12.1 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 14, Indemnitee shall be presumed to be entitled to be indemnified, held harmless, exonerated and to receive advancement of Expenses under this Agreement and the Company shall have the burden of proving Indemnitee is not entitled to be indemnified, held harmless, exonerated and to receive advancement of Expenses, as the case may be, and the Company may not refer to or introduce into evidence any determination pursuant to Section 12.1 of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a judicial proceeding or arbitration pursuant to this Section 14, Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section 10 until a final determination is made with respect to Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted or lapsed).

 

14.3            If a determination has been made pursuant to Section 12.1 of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.

 

14.4            The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.

 

14.5            The Company shall indemnify and hold harmless Indemnitee to the fullest extent permitted by law against all Expenses and, if requested by Indemnitee, shall (within ten (10) days after the Company’s receipt of such written request) pay to Indemnitee, to the fullest extent permitted by applicable law, such Expenses which are incurred by Indemnitee in connection with any judicial proceeding or arbitration brought by Indemnitee (i) to enforce Indemnitee’s rights under, or to recover damages for breach of, this Agreement or any other indemnification, hold harmless, exoneration, advancement or contribution agreement or provision of the Charter or the Bylaws now or hereafter in effect; or (ii) for recovery or advances under any insurance policy maintained by any person for the benefit of Indemnitee, regardless of the outcome and whether Indemnitee ultimately is determined to be entitled to such indemnification, hold harmless or exoneration right, advancement, contribution or insurance recovery, as the case may be (unless such judicial proceeding or arbitration was not brought by Indemnitee in good faith).

 

 

 

 

14.6            Interest shall be paid by the Company to Indemnitee at the legal rate under Delaware law for amounts which the Company indemnifies, holds harmless or exonerates, or advances, or is obliged to indemnify, hold harmless or exonerate or advance for the period commencing with the date on which Indemnitee requests indemnification, to be held harmless, exonerated, contribution, reimbursement or advancement of any Expenses and ending with the date on which such payment is made to Indemnitee by the Company.

 

15.            SECURITY.

 

Notwithstanding anything herein to the contrary, to the extent requested by Indemnitee and approved by the Board, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of Indemnitee.

 

16.            NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.

 

16.1            The rights of Indemnitee as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Charter, the Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any Proceeding (regardless of when such Proceeding is first threatened, commenced or completed) or claim, issue or matter therein arising out of, or related to, any action taken or omitted by such Indemnitee in Indemnitee’s Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in applicable law, whether by statute or judicial decision, permits greater indemnification, hold harmless or exoneration rights or advancement of Expenses than would be afforded currently under the Charter, the Bylaws or this Agreement, then this Agreement (without any further action by the parties hereto) shall automatically be deemed to be amended to require that the Company indemnify Indemnitee to the fullest extent permitted by law. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

 

 

 

 

16.2            The Charter, the Bylaws and the DGCL permit the Company to purchase and maintain insurance or furnish similar protection or make other arrangements including, but not limited to, providing a trust fund, letter of credit, or surety bond (“Indemnification Arrangements”) on behalf of Indemnitee against any liability asserted against Indemnitee or incurred by or on behalf of Indemnitee or in such capacity as a director, officer, employee or Agent of the Company, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement or under the DGCL, as it may then be in effect. The purchase, establishment, and maintenance of any such Indemnification Arrangement shall not in any way limit or affect the rights and obligations of the Company or of Indemnitee under this Agreement except as expressly provided herein, and the execution and delivery of this Agreement by the Company and Indemnitee shall not in any way limit or affect the rights and obligations of the Company or the other party or parties thereto under any such Indemnification Arrangement.

 

16.3            To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, trustees, partners, managers, managing members, fiduciaries, advisor, employees, or Agents of the Company or of any other Enterprise which such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, trustee, partner, manager, managing member, fiduciary, advisor, employee or Agent under such policy or policies. If, at the time the Company receives notice from any source of a Proceeding as to which Indemnitee is a party or a participant (as a witness, deponent or otherwise), the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.

 

16.4            In the event of any payment under this Agreement, the Company, to the fullest extent permitted by law, shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights. No such payment by the Company shall be deemed to relieve any insurer of any of its obligations.

 

16.5            The Company’s obligation to indemnify, hold harmless, exonerate or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, trustee, partner, manager, managing member, fiduciary, employee or Agent of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification, hold harmless or exoneration payments or advancement of expenses from such Enterprise. Notwithstanding any other provision of this Agreement to the contrary, (i) Indemnitee shall have no obligation to reduce, offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple parties possessing such duties to Indemnitee prior to the Company’s satisfaction and performance of all its obligations under this Agreement, and (ii) the Company shall perform fully its obligations under this Agreement without regard to whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than the Company.

 

 

 

 

17.            DURATION OF AGREEMENT.

 

All agreements and obligations of the Company contained herein shall continue during the period Indemnitee serves as a director or officer of the Company or as a director, officer, trustee, partner, manager, managing member, fiduciary, advisor, employee or Agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other Enterprise which Indemnitee serves at the request of the Company and shall continue thereafter so long as Indemnitee shall be subject to any possible Proceeding (including any rights of appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement) by reason of Indemnitee’s Corporate Status, whether or not Indemnitee is acting in any such capacity at the time any liability or expense is incurred for which indemnification or advancement can be provided under this Agreement.

 

18.            SEVERABILITY.

 

If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: the validity, legality and enforceability of the remaining provisions of this Agreement (including each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

 

19.            ENFORCEMENT AND BINDING EFFECT.

 

19.1            The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director, officer or key employee of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director, officer or key employee of the Company.

 

19.2            Without limiting any of the rights of Indemnitee under the Charter or the Bylaws as they may be amended from time to time, this Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.

 

 

 

 

19.3            The Company shall not seek from a court, or agree to, a “bar order” which would have the effect of prohibiting or limiting the Indemnitee’s rights to receive advancement of expenses under this Agreement.

 

19.4            The indemnification, hold harmless, exoneration and advancement of expenses rights provided by or granted pursuant to this Agreement shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company), shall continue as to an Indemnitee who has ceased to be a director, officer, employee or Agent of the Company or a director, officer, trustee, general partner, manager, managing member, fiduciary, advisor, employee or Agent of any other Enterprise at the Company’s request, and shall inure to the benefit of Indemnitee and such Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.

 

19.5            The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

 

19.6            The Company and Indemnitee agree herein that a monetary remedy for breach of this Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto agree that Indemnitee may, to the fullest extent permitted by law, enforce this Agreement by seeking, among other things, injunctive relief and/or specific performance hereof, without any necessity of showing actual damage or irreparable harm and that by seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded from seeking or obtaining any other relief to which Indemnitee may be entitled. The Company and Indemnitee further agree that Indemnitee shall, to the fullest extent permitted by law, be entitled to such specific performance and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of posting bond or other undertaking in connection therewith. The Company acknowledges that, in the absence of a waiver, a bond or undertaking may be required of Indemnitee by a court of competent jurisdiction and the Company hereby waives any such requirement of such a bond or undertaking to the fullest extent permitted by law.

 

20.            MODIFICATION AND WAIVER.

 

No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the Company and Indemnitee. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver.

 

 

 

 

21.            NOTICES.

 

21.1            All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (i) if delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, on such delivery, or (ii) if mailed by certified or registered mail with postage prepaid, on the third (3^rd) business day after the date on which it is so mailed:

 

(a)            If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide in writing to the Company.

 

(b)            If to the Company, to:

 

Pinstripes Holdings, Inc.

1150 Willow Road

Northbrook, IL 60062
Attn: Tony Querciagrossa

Email: tony.q@pinstripes.com

 

With copies, which shall not constitute notice, to:

 

Katten Muchin Rosenman LLP

525 W. Monroe Street

Chicago, IL 60661-3693

Attn: Mark D. Wood and Elizabeth McNichol

Email: mark.wood@katten.com; elizabeth.mcnichol@katten.com

 

or to any other address as may have been furnished to Indemnitee in writing by the Company.

 

22.            APPLICABLE LAW AND CONSENT TO JURISDICTION.

 

This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 14.l of this Agreement, to the fullest extent permitted by law, the Company and Indemnitee hereby irrevocably and unconditionally: (a) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court and not in any other state or federal court in the United States of America or any court in any other country; (b) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement; (c) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court; and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum, or is subject (in whole or in part) to a jury trial. To the fullest extent permitted by law, the parties hereby agree that the mailing of process and other papers in connection with any such action or proceeding in the manner provided by Section 21, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.

 

 

 

 

23.            IDENTICAL COUNTERPARTS.

 

This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.

 

24.            MISCELLANEOUS.

 

As used herein, words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter. The use of the word “including” herein shall be by way of example rather than limitation and the word “or” shall not be exclusive. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

 

25.            PERIOD OF LIMITATIONS.

 

No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.

 

26.            ADDITIONAL ACTS.

 

If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required, to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement.

 

27.            MAINTENANCE OF INSURANCE.

 

The Company shall use commercially reasonable efforts to obtain and maintain in effect during the entire period for which the Company is obligated to indemnify the Indemnitee under this Agreement, one or more policies of insurance with reputable insurance companies to provide the officers and directors of the Company with coverage for losses from wrongful acts and omissions and to ensure the Company’s performance of its indemnification obligations under this Agreement. The Indemnitee shall be named as an insured in such a manner as to provide the Indemnitee with the same rights and benefits as are accorded to the most favorably insured of the Company’s directors and officers.

 

(SIGNATURE PAGE FOLLOWS)

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Indemnity Agreement to be signed as of the day and year first above written.

 

	PINSTRIPES HOLDINGS, INC.
	By:
	Name:
	Title:
	INDEMNITEE
	Name:

 

Signature Page to Indemnity Agreement

 

 

 

EX-16.1

Exhibit 16.1

January 5, 2024

Securities and Exchange Commission 

100 F Street, N.E. 

Washington, DC  20549

Commissioners:

We have read the statements made by Pinstripes Holdings, Inc. (formerly Banyan Acquisition Corp.) under Item 4.01 of its Form 8-K dated January 5, 2024.  We agree with the statements concerning our Firm in such Form 8-K under Item 4.01. We are not in a position to agree or disagree with other statements of Pinstripes Holdings, Inc. (formerly Banyan Acquisition Corp.) contained therein.

Very truly yours,

/s/ Marcum llp

Marcum llp

EX-16.2

Exhibit 16.2

January 5, 2024

Securities and Exchange Commission

100 F Street, N.E.

Washington, DC 20549

Commissioners:

We have read Item 4.01 of Form 8-K dated January 5, 2024, of Pinstripes Holdings, Inc. and are in agreement with the statements contained in the sixth, seventh and eighth paragraphs on page 16 therein. We have no basis to agree or disagree with other statements of the registrant contained therein.

/s/ Ernst & Young LLP

EX-21.1

Exhibit 21.1

List of Subsidiaries

The subsidiary of Pinstripes Holdings, Inc. is as follows:

1. Pinstripes, Inc.

EX-99.1

Exhibit 99.1

Pinstripes, Inc.

Unaudited Condensed Consolidated Financial Statements

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Pinstripes, Inc.

Contents

Unaudited Condensed Consolidated Financial Statements
Condensed Consolidated Balance Sheets	1
Unaudited Condensed Consolidated Statements of Operations	2
Unaudited Condensed Consolidated Statements of Redeemable Convertible Preferred Stock and Stockholders' Deficit	3
Unaudited Condensed Consolidated Statements of Cash Flows	4
Notes to Unaudited Condensed Consolidated Financial Statements	5-20

Pinstripes, Inc.

Condensed Consolidated Balance Sheets

(in thousands, except share and per share amounts)

	(Unaudited)
	October 15,			April 30,
	2023			2023
Assets:
Current Assets:
Cash and cash equivalents	$	7,991		$	8,436
Accounts receivable		1,121			1,310
Inventories		830			802
Prepaid expenses and other current assets		662			577
Total current assets		10,604			11,125
Property and equipment, net		69,734			62,842
Operating lease right-of-use assets		49,185			55,604
Other long-term assets		11,780			1,356
Total assets	$	141,303		$	130,927
Liabilities, Redeemable Convertible Preferred Stock, and Stockholders' Deficit:
Current Liabilities:
Accounts payable	$	24,027		$	19,305
Amounts due to customers		8,158			7,349
Current portion of long-term notes payable		2,243			1,044
Accrued occupancy costs		5,556			14,940
Other accrued liabilities		10,227			8,613
Current portion of operating lease liabilities		10,824			10,727
Total current liabilities		61,035			61,978
Long-term notes payable		41,959			36,211
Long-term accrued occupancy costs		699			2,020
Operating lease liabilities		89,888			91,398
Other long-term liabilities		1,038			850
Total liabilities		194,619			192,457
Commitments and contingencies (Note 11)
Redeemable convertible preferred stock (Note 7)		75,262			53,468
Stockholders' deficit:
Common stock (par value: $0.01; authorized: 35,000,000 shares; issued and outstanding: 6,178,962 shares at October 15, 2023 and 6,178,962 shares at April 30, 2023)		62			62
Additional paid-in capital		482			3,733
Accumulated deficit		(129,122	)		(118,793	)
Total stockholders' deficit		(128,578	)		(114,998	)
Total liabilities, redeemable convertible preferred stock, and stockholders' deficit	$	141,303		$	130,927

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

1

Pinstripes, Inc.

Unaudited Condensed Consolidated Statements of Operations

(in thousands, except per share amounts)

	Twelve Weeks Ended						Twenty-Four Weeks Ended
	October 15,			October 9,			October 15,			October 9,
	2023			2022			2023			2022
Food and beverage revenues	$	19,435		$	18,998		$	39,952		$	39,398
Recreation revenues		5,188			4,946			10,412			9,527
Total revenue		24,623			23,944			50,364			48,925
Cost of food and beverage		4,278			4,198			8,715			8,627
Store labor and benefits		9,337			9,052			18,634			18,066
Store occupancy costs, excluding depreciation		4,583			4,217			5,590			8,246
Other store operating expenses, excluding depreciation		5,134			3,864			9,556			8,178
General and administrative expenses		3,774			3,312			7,302			7,311
Depreciation expense		1,697			1,861			3,341			3,714
Pre-opening expenses		3,026			459			5,304			985
Operating loss		(7,206	)		(3,019	)		(8,078	)		(6,202	)
Interest expense		(1,908	)		(265	)		(3,601	)		(457	)
Gain on change in fair value of warrant liability		1,759			-			1,350			-
Gain (loss) on debt extinguishment (Note 4)		-			(10	)		-			8,448
Income (loss) before income taxes		(7,355	)		(3,294	)		(10,329	)		1,789
Income tax expense		(72	)		96			-			144
Net (loss) income		(7,283	)		(3,390	)		(10,329	)		1,645
Less: Cumulative unpaid dividends and change in redemption amount of preferred stock		(394	)		-			(1,951	)		-
Net (loss) income attributable to common stockholders	$	(7,677	)	$	(3,390	)	$	(12,280	)	$	1,645
Basic (loss) earnings per share	$	(1.17	)	$	(0.55	)	$	(1.87	)	$	0.27
Diluted (loss) earnings per share	$	(1.17	)	$	(0.55	)	$	(1.87	)	$	0.10
Weighted average shares outstanding, basic		6,535			6,168			6,550			6,168
Weighted average shares outstanding, diluted		6,535			6,168			6,550			16,992

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

2

Pinstripes, Inc.

Unaudited Condensed Consolidated Statements of Redeemable Convertible Preferred Stock and Stockholders’ Deficit

(in thousands, except share amounts)

	Twenty-Four Weeks Ended October 15, 2023
	Redeemable Convertible Preferred Stock				Common				Additional			Accumulated			Total Stockholders'
	Shares		Amounts		Shares		Amounts		Paid-In Capital			Deficit			Deficit
Balance as of April 30, 2023		10,203,945	$	53,468		6,178,962	$	62	$	3,733		$	(118,793	)	$	(114,998	)
Net loss						-		-		-			(3,046	)		(3,046	)
Issuance of Series I preferred stock		795,448		18,463
Cumulative unpaid dividends on preferred stock		-		134		-		-		(134	)		-			(134	)
Change in redemption amount of preferred stock		-		1,423		-		-		(1,423	)		-			(1,423	)
Stock based compensation						-		-		141			-			141
Balance as of July 23, 2023		10,999,393	$	73,488		6,178,962	$	62	$	2,317		$	(121,839	)	$	(119,460	)
Net loss						-		-		-			(7,283	)		(7,283	)
Issuance of contingently issuable warrants						-		-		173			-			173
Reclassification of liability-classified warrants						-		-		(1,834	)		-			(1,834	)
Issuance of Series I preferred stock		55,200		1,380
Cumulative unpaid dividends on preferred stock		-		394		-		-		(394	)		-			(394	)
Stock based compensation						-		-		220			-			220
Balance as of October 15, 2023		11,054,593	$	75,262		6,178,962	$	62	$	482		$	(129,122	)	$	(128,578	)

	Twenty-Four Weeks Ended October 9, 2022
	Redeemable Convertible Preferred Stock				Common				Additional		Accumulated			Total Stockholders'
	Shares		Amounts		Shares		Amounts		Paid-In Capital		Deficit			Deficit
Balance as of April 24, 2022		10,085,612	$	52,218		6,167,254	$	62	$	1,650	$	(111,268	)	$	(109,556	)
Net income						-		-		-		5,035			5,035
Issuance of Series G preferred stock		105,000		1,050
Issuance of Series H preferred stock		13,333		200
Exercise of stock options						1,000		-		6		-			6
Stock based compensation						-		-		52		-			52
Balance as of July 17, 2022		10,203,945	$	53,468		6,168,254	$	62	$	1,708	$	(106,233	)	$	(104,463	)
Net loss												(3,390	)		(3,390	)
Issuance of warrants						-		-		10		-			10
Stock based compensation						-		-		59		-			59
Balance as of October 9, 2022		10,203,945	$	53,468		6,168,254	$	62	$	1,777	$	(109,623	)	$	(107,785	)

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

3

Pinstripes, Inc.

Unaudited Condensed Consolidated Statements of Cash Flows

(in thousands)

	Twenty-Four Weeks Ended
	October 15,			October 9,
	2023			2022
Cash flows from operating activities:
Net (loss) income	$	(10,329	)		1,645
Adjustments to reconcile net (loss) income to net cash used in operating activities:
Gain on modification of operating leases		(3,281	)		-
Depreciation expense		3,341			3,714
Non-cash operating lease expense		2,646			2,560
Operating lease tenant allowances		1,272			2,424
Stock based compensation		361			111
Gain on change in fair value of warrant liability		(1,350	)		-
Gain on extinguishment of debt		-			(8,448	)
Amortization of debt issuance costs		897			9
(Increase) decrease in operating assets:
Accounts receivable		188			(56	)
Inventories		(28	)		(59	)
Prepaid expenses and other current assets		(85	)		49
Other long-term assets		(5,005	)		-
(Decrease) increase in operating liabilities:
Accounts payable		3,258			3,578
Amounts due to customers		809			23
Accrued occupancy costs		(4,210	)		(2,038	)
Other accrued liabilities		289			(408	)
Operating lease liabilities		(4,697	)		(4,101	)
Net cash (used in) operating activities		(15,924	)		(997	)
Cash flows from investing activities:
Purchase of property and equipment		(9,793	)		(3,539	)
Net cash (used in) investing activities:		(9,793	)		(3,539	)
Cash flows from financing activities:
Proceeds from stock option exercises		-			6
Proceeds from issuance of preferred stock, net		19,843			200
De-SPAC transaction costs		(1,540	)		-
Principal payments on long-term notes payable		(283	)		(999	)
Debt issuance costs		(247	)		-
Redemption of long-term notes payable		-			(100	)
Proceeds from long-term borrowings		7,499			-
Net cash provided by (used in) financing activities		25,272			(893	)
Net change in cash and cash equivalents		(445	)		(5,429	)
Cash and cash equivalents, beginning of period		8,436			8,907
Cash and cash equivalents, end of period	$	7,991		$	3,478
Supplemental disclosures of cash flow information:
Cash paid for interest	$	2,287		$	529
Supplemental disclosures of non-cash operating, investing and financing activities:
Conversion of long-term borrowings to preferred shares	$	-		$	1,050
(Increase) decrease in operating lease right-of-use assets	$	560		$	(2,654	)
Non-cash finance obligation	$	665		$	-
Non-cash capital expenditures included in accounts payable	$	2,798		$	3,288
Change in redemption amount of preferred stock	$	1,423		$	-
Cumulative unpaid dividends on preferred stock	$	528		$	-

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

4

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 1 – Nature of Business and Basis of Presentation

Pinstripes, Inc. (“Pinstripes”, the "Company", “we”, “us, or “our”) was formed for the purpose of operating and expanding a unique entertainment and dining concept. The Company has 14 locations in nine states and generates revenue primarily from the sale of food, beverages, bowling, bocce, and hosting private events. The Company operates its business as one operating and one reportable segment.

Principles of Consolidation

The accompanying unaudited condensed consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries, Pinstripes at Prairiefire, Inc., Pinstripes Illinois, LLC, and Pinstripes, Hillsdale, LLC. All intercompany accounts and transactions have been eliminated in consolidation.

Fiscal Years

The Company’s fiscal year consists of 52/53-weeks ending on the last Sunday in April. The fiscal year ended April 30, 2023 contained 53 weeks. In a 52-week fiscal year, the first, second, and third fiscal quarters each contain twelve weeks and the fourth fiscal quarter contains sixteen weeks. In a 53-week fiscal year, the first, second, and third fiscal quarters each contain twelve weeks and the fourth fiscal quarter contains seventeen weeks.

Interim Financial Statements

The Company’s financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”) in the United States for interim financial information as prescribed by the Securities and Exchange Commission (“SEC”). Accordingly, they do not include all the information and notes required by GAAP for complete financial statements. In the opinion of management, these financial statements contain all adjustments, consisting of normal recurring accruals, necessary to present fairly the financial position, results of operations and cash flows for the periods indicated.

Certain information and footnote disclosures normally included in annual financial statements presented in accordance with US GAAP have been omitted pursuant to rules and regulations of the Securities and Exchange Commission (“SEC”). Due to the seasonality of our business, results for any interim financial period are not necessarily indicative of the results that may be achieved for a full fiscal year. In addition, quarterly results of operations may be impacted by the timing and amount of sales and costs associated with opening new locations.

These interim unaudited condensed consolidated financial statements do not represent complete financial statements and should be read in conjunction with the audited consolidated financial statements and notes thereto for the year ended April 30, 2023 included in our Annual Report.

Use of Estimates

The preparation of the unaudited condensed consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the unaudited condensed consolidated financial statements and accompanying notes. Actual results could differ from those estimates.

5

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 1 – Nature of Business and Basis of Presentation (Continued) 

Cash and cash equivalents

We consider transaction settlements in process from credit card companies and all highly-liquid investments with original maturities of three months or less to be cash equivalents. Amounts due from credit card transactions with settlement terms of less than five days are included in cash and cash equivalents. Credit and debit card receivables included within cash were $1,417 and $1,381 as of October 15, 2023 and April 30, 2023, respectively.

Revenue

Food and beverage revenues and recreation revenues are recognized when payment is tendered at the point of sale as the performance obligation has been satisfied. Food and beverage revenues include the sale of food and beverage products. Recreation revenues include bowling and bocce sales. Revenues are recognized net of discounts and taxes. Event deposits received from guests are deferred and recognized as revenue when the event is held. Event deposits received from customers in advance are included in amounts due to customers in the condensed consolidated balance sheets in the amounts of $6,679 as of October 15, 2023 and $5,453 as of April 30, 2023.

The Company sells gift cards, which do not have expiration dates, and does not deduct non-usage fees from outstanding gift card balances. Gift card sales are initially recorded by the Company as a liability and subsequently recognized as revenue upon redemption by the customer. For unredeemed gift cards that the Company expects to be entitled to breakage and for which there is no legal obligation to remit the unredeemed gift card balances to the relevant jurisdictions, the Company recognizes expected breakage as revenue in proportion to the pattern of redemption by the customers. The determination of the gift card breakage is based on the Company’s specific historical redemption patterns. The contract liability related to our gift cards is included in amounts due to customers in the condensed consolidated balance sheets in the amounts of $1,479 as of October 15, 2023 and $1,896 as of April 30, 2023. The components of gift card revenue were as follows:

	Twelve Weeks Ended				Twenty-Four Weeks Ended
	October 15,		October 9,		October 15,		October 9,
	2023		2022		2023		2022
Redemptions, net of discounts	$	369	$	293	$	883	$	666
Breakage		103		70		245		462
Gift card revenue, net	$	472	$	363	$	1,128	$	1,128

Revenues are reported net of sales tax collected from customers. Sales tax collected is included in other accrued liabilities on the condensed consolidated balance sheets until the taxes are remitted to the appropriate taxing authorities.

Pre-opening costs

Pre-opening costs, which are expensed as incurred, consist of expenses prior to opening a new store location and are made up primarily of manager salaries, relocation costs, recruiting expenses, payroll and training costs, marketing, and travel costs. These costs also include occupancy costs recorded during the period between the date of possession and the date we begin operations at a location. Pre-opening costs were $3,026 and $5,304 for the twelve and twenty-four weeks ended October 15, 2023, respectively, compared to $459 and $985 for the twelve and twenty-four weeks ended October 9, 2022, respectively, due to preparations for new locations under construction.

6

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 1 – Nature of Business and Basis of Presentation (Continued)

Business combination

On June 22, 2023, the Company executed a Business Combination Agreement (BCA) with Banyan Acquisition Corporation. Pursuant to the agreement, it is anticipated that the Company will merge with Banyan Acquisition Corporation. The Company anticipates the Business Combination will close in the third quarter of fiscal year 2024.

On September 26, 2023, the Company and Banyan Acquisition Corporation entered into the Amended and Restated Business Combination Agreement (“Amended BCA”), which amends and restates the previously announced Business Combination Agreement, dated as of June 22, 2023. Pursuant to the Amended BCA, the Company provided certain holders of common stock of Pinstripes prior to the closing of the Business Combination with an aggregate of 5 million shares of common stock of the post-closing combined company that are subject to vesting conditions.

The Company incurred $4,126 of costs relating to the transaction which are recorded in other long-term assets, in the unaudited condensed consolidated balance sheet as of October 15, 2023. Of the total transaction costs incurred as of October 15, 2023, $1,540 have been paid and reflected as a cash outflow from financing activities.

Recently adopted and issued accounting standards

We reviewed the accounting pronouncements that became effective for the second quarter of fiscal year 2024 and determined that either they were not applicable, or they did not have a material impact on the condensed consolidated financial statements. We also reviewed the recently issued accounting pronouncements to be adopted in future periods and determined that they are not expected to have a material impact on the consolidated financial statements.

Note 2 – Inventory

Inventories consist of the following:

	October 15,		April 30,
	2023		2023
Beverage	$	582	$	545
Food		248		257
Total	$	830	$	802

7

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 3 – Property and Equipment

Property and equipment, net is summarized as follows:

	October 15,			April 30,
	2023			2023
Leasehold improvements	$	70,421		$	61,534
Furniture, fixtures, and equipment		38,428			33,361
Building and building improvements		7,000			7,000
Construction in progress		20,847			24,568
Total cost		136,696			126,463
Less: accumulated depreciation		(66,962	)		(63,621	)
Property and equipment, net	$	69,734		$	62,842

Construction in progress relates to new locations under construction.

Note 4 – Debt

Long-term financing arrangements consists of the following:

	October 15,			April 30,
	2023			2023
PPP and SBA loans	$	500		$	500
Term loans		25,000			22,500
Equipment loan		16,500			11,500
Convertible notes		5,000			5,000
Finance obligations		4,397			3,995
Other		106			127
Less: Unamortized debt issuance costs and discounts		(7,301	)		(6,367	)
Total		44,202			37,255
Less: Current portion		(2,243	)		(1,044	)
Long-term notes payable	$	41,959		$	36,211

PPP & SBA Loans

In April 2020, the Company executed a loan pursuant to the Paycheck Protection Program (“PPP”) loans, which was administered by the Small Business Association (“SBA”) under the CARES Act and the PPP Flexibility Act of 2020, for $7,725.

During the fiscal year ended April 25, 2021, the Company executed three PPP loans totaling $3,265. Each PPP loan matured two years after issuance. The interest rate on each PPP loan was 1.0% annually.

As authorized by the provisions of the CARES Act, the Company applied for forgiveness of the PPP loans. For the twenty-four weeks ended October 15, 2023, the Company recorded a gain on the extinguishment of debt for $8,448, which includes accrued interest.

8

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 4 – Debt (Continued)

Term Loans

On March 7, 2023, the Company entered into a term loan facility, consisting of two tranches and detachable warrants (see Note 9), with Silverview Credit Partners LP (“Silverview”) for $35,000 that matures on June 7, 2027. As part of the transaction, the Company repaid $5,598 of term loans with Live Oak Banking Company. The interest rate on the term loan is 15%, which is payable monthly, and is collateralized by the assets of the business. At each six-month interval beginning in March of fiscal year 2024, the Company will begin repaying the principal amount. As of October 15 2023, and April 30, 2023, the principal outstanding is $22,500 related to Tranche 1.

The term loan facility has a second tranche that allows the Company to draw an additional $12,500 solely during the Tranche 2 loan availability period which ends on the earlier of September 7, 2024, or the date on which obligations shall become due and payable in full per the loan agreement. Under the Tranche 2 loan, the Company can borrow $2,500 per draw for each of five new store openings ($12,500 in aggregate). The Company had no borrowings outstanding under Tranche 2 loan as of April 30, 2023.

In relation to the above term loans, the Company incurred debt issuance costs and discounts of $5,182, of which $1,354 was debt issuance costs, $2,421 was debt discount, and $1,407 was a loan commitment asset within other long-term assets on the consolidated balance sheet as of April 30, 2023.

On August 1, 2023, the Company and Silverview entered into an agreement whereby the Company agreed to grant Silverview warrants to purchase shares of the Company common stock issuable and exercisable by Silverview if the Company obtains additional funding under Tranche 2 loan. Simultaneously, the Company amended and restated its existing warrant agreement (see Note 9).

On July 27, 2023 and September 29, 2023, the Company received $1,000 and $1,500, respectively, in additional debt proceeds from Silverview Credit Partners LP under Tranche 2 to fund expansion, which bear interest at 15% and will be payable in full on June 7, 2027. Upon the issuance of each Tranche 2 loan borrowing, the Company will reduce the Tranche 2 loan commitment asset for the proportional amount received and present the amounts as a debt issuance costs and a reduction of the borrowing proceeds (i.e., a debt discount). As of October 15, 2023, $237 has been reclassified from the loan commitment asset to debt discount of $110 and debt issuance costs of $127.

As of October 15, 2023, the Company has recorded debt issuance costs and discounts, net of amortization, of $4,539, of which $1,238 was debt issuance costs, $2,327 was debt discount, and $974 was a loan commitment asset within other long-term assets on the unaudited condensed consolidated balance sheet.

Equipment Loan

On April 19, 2023, the Company entered into a subordinated equipment loan of $11,500 and detachable warrants (see Note 9) with Granite Creek Capital Partners LLC that matures on April 19, 2028. The interest rate on the loan is 12% and is payable monthly. The loan is collateralized by the specific furniture, fixture, and equipment assets of the business. The outstanding principal will be repaid in quarterly installments equal to $431 on the last day of each calendar quarter commencing on September 30, 2024.

9

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 4 – Debt (Continued)

On July 27, 2023, the Company restated the term loan agreement with Granite Creek Capital Partners, LLC, to provide $5,000 in additional debt financing and detachable warrants (see Note 9) for development of new locations that matures on April 19, 2028 bears interest at 12%, and is repayable in quarterly installments beginning September 30, 2024. The Company determined that the amendment was treated as a debt modification and accordingly, no gain or loss was recognized.

In relation to the equipment loan, the Company incurred debt issuance costs and discounts of $2,770, of which $76 was recorded as debt issuance costs and $2,694 was recorded as a debt discount on the consolidated balance sheet as of April 30, 2023.

As of October 15, 2023, the Company has recorded debt issuance costs and discounts, net of amortization, of $3,736, of which $68 was debt issuance costs and $3,668 was debt discount on the unaudited condensed consolidated balance sheet.

Convertible Notes

On June 4, 2021, the Company entered into two convertible note agreements for $5,000 in the aggregate. The convertible notes accrue interest at 1.07% annually and mature on June 4, 2025. Holders of the convertible notes have the right, at their option, to convert all of the outstanding principal and accrued interest to shares of common stock equal to the quotient of (i) the outstanding principal on the convertible note divided by (ii) the Conversion Price of $10 per share. If the holders elect not to convert the loans, they are entitled to an annual premium payment equal to 6.93% of the outstanding principal amount owed. As of October 15, 2023, and April 30, 2023, accrued interest related to the premium on the convertible notes was $819 and $660, respectively.

Finance Obligations

In 2011, the Company entered into a failed sale leaseback at its Northbrook, Illinois location. The Company sold the building, fixtures, and certain personal property and assigned the ground lease to a new lessor. The Company received $7,000 from the transaction, which was accounted for as a financing obligation with repayment terms of 15 years. The obligation is repaid in monthly installment payments, which includes principal and interest at an 8.15% annual rate. As of October 15, 2023 and April 30, 2023, the principal outstanding was $3,733 and $3,995, respectively.

During the second quarter of fiscal year 2024, the Company entered into an agreement to pay for its bowling equipment for one location through a long-term payment plan. The Company will pay approximately $665 for the equipment, which was accounted for as a financing obligation with a repayment term of five years. The obligation is repaid in monthly installment payments, which includes principal and interest at a 10% annual rate. As of October 15, 2023, the principal outstanding was $665.

10

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 4 – Debt (Continued)

Debt Covenants

The Company is required to maintain certain financial covenants as well as certain affirmative and negative covenants under its debt arrangements. For example, the term loan requires the Company to maintain a minimum liquidity of $1 million of cash and cash equivalents and a maintenance of a minimum net leverage ratio at the end of each semiannual period beginning from September 2023. No restrictions on dividends apply as long as the Company maintains the applicable financial, affirmative, and negative covenants per its debt arrangements. In August 2023, the Company amended its term loan agreement whereby the first covenant measurement period begins in March 2024. The Company’s loan agreements contain events of default with respect to, among other things, default in the payment of principal when due or the payment of interest, fees, and other amounts due thereunder after a specific grace period, material misrepresentations and failure to comply with covenants. The Company was in compliance with its debt covenants as of October 15, 2023.

Note 5 – Income Taxes

The Company's full pretax income (loss) for the twelve weeks and twenty-four weeks ended October 15, 2023 and October 9, 2022 was from U.S. domestic operations. Our effective tax rate ("ETR") from continuing operations was (0.8)% and 0% for the twelve and twenty-four weeks ended October 15, 2023, and (1.5)% and 5.4% for the twelve and twenty-four weeks ended October 9, 2022, respectively, and consists of state income taxes. There were no significant discrete items recorded for the twelve weeks and twenty-four weeks ended October 15, 2023 and October 9, 2022, respectively.

Note 6 – Leases

The Company leases various assets, including real estate, retail buildings, restaurant equipment, and office equipment. The Company has noncancelable operating leases expiring at various times through 2036.

In June 2023, the Company entered into a lease amendment for one location that resulted in a lease modification in accordance with Accounting Standards Codification 842, Leases (ASC 842), under which the company received an abatement of $4,673 and deferral of previously unpaid rent of $4,500. The modification of the lease increased the lease liability by $2,678, decreased accrued occupancy costs by $9,173, and decreased the lease asset, which resulted in a gain of $3,281 that is included as a reduction in the Company’s store occupancy costs, excluding depreciation, line of the unaudited condensed consolidated statements of operations for the twenty-four weeks ended October 15, 2023.

As of October 15, 2023, the Company entered into additional operating leases with $93,682 in aggregate future fixed lease payments related to new locations, which have not yet commenced. As of October 15, 2023, the Company did not have control of the underlying properties.

The components of lease expense are as follows:

	Twelve Weeks Ended				Twenty-Four Weeks Ended
	October 15,		October 9,		October 15,		October 9,
	2023		2022		2023		2022
Operating lease cost	$	3,545	$	3,037	$	3,878	$	5,799
Variable lease cost	$	1,570	$	1,576	$	2,870	$	3,133
Total lease cost	$	5,115	$	4,613	$	6,748	$	8,932

The operating lease costs, except pre-opening costs of $394 and $1,003 for the twelve and twenty-four weeks ended October 15, 2023, respectively, and $266 and $444 for the twelve and twenty-four weeks ended October 9, 2022, are included within store occupancy costs on the Consolidated Statements of Operations.

11

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 7 – Redeemable Convertible Preferred Stock

As of October 15, 2023, the Company had nine classes of preferred stock: Series A, B, C, D, E, F, G, H and I (collectively, the “Preferred Stock”). The common stock and Preferred Stock vote on all matters as one class, with each share of common stock and each share of the Preferred Stock being entitled to one vote, and all have a par value of $0.01. There are a total of 25,000,000 shares authorized for all issuances of the Preferred Stock, including 3,132,989 unallocated shares that may be issued as any Series at the Company’s discretion. Each share of each series of Preferred Stock may be converted at any time into shares of common stock at a ratio of one to one.

The Company issued five Convertible Notes to individuals in the aggregate of $775 and three Convertible Notes to individuals in the aggregate of $375, during fiscal years 2022 and 2021, respectively. During the twenty-four weeks ended October 9, 2022, seven of the Convertible Notes in the amount of $1,050 were converted into Series G convertible preferred stock and one of the notes in the amount of $100 was repaid.

As of October 15, 2023, Preferred Stock consisted of the following:

			PREFERRED
	PREFERRED		STOCK
	STOCK		ISSUED AND		CARRYING		LIQUIDATION
	AUTHORIZED		OUTSTANDING		VALUE		VALUE
Series A		2,301,202		2,301,200	$	1,151	$	2,915
Series B		471,164		464,914		930		2,303
Series C		240,000		120,000		300		707
Series D		3,229,645		2,670,373		10,340		20,404
Series E		5,000,000		367,833		2,207		3,809
Series F		4,125,000		3,411,292		27,290		41,724
Series G		500,000		355,000		3,550		5,109
Series H		3,000,000		513,333		7,700		10,692
Series I		3,000,000		850,648		21,794		27,000
Total		21,867,011		11,054,593		75,262		114,663

Series A through H Preferred Stock

Each series of Preferred Stock is entitled to an 8% cumulative annual dividend upon liquidation given the Preferred Stock has not been converted to common stock. The Company may not declare or pay any dividend, nor make any other distribution (other than a dividend or distribution payable solely in shares of common stock) on or with respect to its common stock or on any class of securities with dividend rights on parity with the Preferred Stock of the Company, unless and until cumulative dividends have been paid, or declared and set aside for payment. As of October 15, 2023 and April 30, 2023, no dividends were declared or paid. The cumulative undeclared dividends are $23,013 and $20,653 in aggregate as of October 15, 2023 and April 30, 2023, respectively.

12

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 7 – Redeemable Convertible Preferred Stock (Continued)

In addition to matters that the holders of Preferred Stock are entitled by law to vote on separately as a class, without the approval by vote or written consent of not less than 66 2/3 percent of the outstanding shares of each series, voting as a separate class, the Company may not (a) alter or change any of the express powers, rights, preferences, privileges, qualifications, limitations, or restrictions of the Preferred Stock; (b) increase the authorized number of shares of Preferred Stock; and (c) repurchase, redeem, or otherwise reacquire shares of the common stock of the Company.

Any consolidation of the Company with, or merger of the Company into, another corporation (other than a merger with a subsidiary of the Company in which the Company is the continuing corporation and that does not result in any reclassification or change other than a change in par value, or as a result of a subdivision or combination) and any sales or conveyance to another corporation of the property of the Company in its entirety or substantially in its entirety are deemed to be a liquidation, dissolution, or winding up of the Company. As a result of such occurrence, the redeemable convertible preferred stock is recorded outside of permanent equity as these securities would become redeemable at the option of its holders. The Company has not adjusted the carrying values of the redeemable convertible preferred stock to the redemption amount of such shares in the current year because they are not currently redeemable or probable of being redeemable until such deemed liquidation events occur.

Each share of each series of Preferred Stock will automatically be converted into common stock in the event of the closing of a firm commitment underwriting public offering with a price per share that meets or exceeds the specified amount per the Preferred Stock agreement ranging from $0.50 to $15.00.

Series I Preferred Stock

Concurrently with the execution of the BCA in June 2023, affiliates of the Sponsor of Banyan Acquisition Corporation entered into a securities purchase agreement with the Company to provide $18,000 of bridge financing in the form of Series I Convertible Preferred Stock. The shares of Series I Convertible Preferred Stock will convert into the Company’s common stock in connection with the consummation of the Business Combination. On June 30, 2023 and August 1, 2023, affiliates of the Sponsor of Banyan Acquisition Company provided an additional $1,886 and $1,380, respectively, of bridge financing in the form of Series I Convertible Preferred Stock.

Series I Preferred Stock has redemption options available to holders after a certain passage of time. Redeemable shares are classified as mezzanine equity as they are redeemable based on an event that is not solely in the control of the Company. At any time, following June 22, 2030 (seven years after the earliest original issuance date of a Series I preferred stock), the holders of a majority of the then outstanding shares of our Series I Preferred Stock may deliver a liquidation demand notice to the Company requesting that the Company effect a Series I liquidation event. Within one year after its receipt of such notice, the Company shall, at its discretion, elect one of the following actions: (i) redeem the shares at their fair market value, (ii) effect the sale of all of the equity securities of the Company for cash, or (iii) effect a qualified public offering.

The Series I Preferred Stock was initially measured at fair value, which is the transaction price (i.e., proceeds received). At each reporting period end, the Company will adjust the initial Series I carrying amount to its redemption fair value. Changes in the carrying value are recognized in additional paid-in-capital. During the second quarter of fiscal year 2024, there was no change to the redemption value other than the cumulative unpaid dividends of $528.

13

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 7 – Redeemable Convertible Preferred Stock (Continued)

Series I Holders are entitled to cast the same number of votes equal to the number of common stock shares the Series I are convertible into on all matters except the election of members to the Board of Directors (only holders of common stock are entitled to elect members to the Board of Directors).

From and after the date of the issuance of any shares of Series I, dividends at the rate per annum of $2.00 per share shall accrue on such shares of Series I, subject to appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization affecting such shares. The Series I dividends shall accrue from day to day based on a 360-day year, whether or not declared, and shall be cumulative; provided, however, that, except as set forth in the Certificate of Designations, the Company shall be under no obligation to pay such Series I Accrued Dividends. As of October 15, 2023, the cumulative accrued Series I Preferred Stock dividend is $528. Upon conversion of a share of Series I Preferred Stock into common stock, accrued dividends with respect to such shares will cease to be accrued or payable. If the shares of Series I Preferred Stock are deemed to have converted to common stock in connection with a liquidation event, the cumulative unpaid accrued dividends will be paid in cash. Upon a De-SPAC transaction with Banyan Acquisition Corporation, the dividends shall not be payable and will be converted into common stock.

Liquidation Event

In the event of any voluntary or involuntary liquidation, dissolution, or winding up of the Company, before any distribution or payment may be made to or set apart for the holders of common stock, the holders of Series A, B, C, D, E, F, G, H and I Preferred Stock are entitled to receive from the assets of the Company the amount of $0.50, $2.00, $2.50, $3.87, $6.00, $8.00, $10.00, $15.00 and $25.00 per share, respectively, plus an amount equal to all dividends declared but unpaid to the date of such liquidation, dissolution, or winding up of the Company (the “Liquidation Value”). If the assets of the Company are legally available for distribution to holders, and the Company’s capital stock are insufficient to provide the payment in full, then the assets of the Company available are to be distributed amongst the holders of Series I first, Series H second, Series G third, to Series D, E, and F fourth, and then to Series A, B, and C stock on a pro rata basis.

Note 8 – Stock-Based Compensation

The Company’s equity incentive plan, the 2008 Equity Incentive Plan (the “Plan”), provided for the issuance of 2,900,000 common stock shares in the form of an option award or restricted stock award to eligible employees and directors. On October 19, 2023, the Board of Directors approved a new equity incentive plan, the 2023 Stock Option Plan (the “2023 Plan”), which provides for the issuance of 1,500,000 common stock shares in the form of an option award eligible to employees and directors. Under both plans, option awards vest 20% at the end of each year over 5 years and expire 10 years from the date of grant, or generally within 90 days of employee termination. There were no restricted stock awards outstanding as of October 15, 2023.

14

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 8 – Stock-Based Compensation (Continued)

A summary of equity classified option activity for the twenty-four weeks ended October 15, 2023 is as follows:

						Weighted-average		Aggregate
						Remaining		Intrinsic
	Number of			Weighted-average		Contractual Term		Value
Options	Options			Exercise Price		(in years)		(in thousands)
Outstanding at April 30, 2023		2,284,399		$	9.84		6.56	$	16,628
Granted		619,500			22.77
Exercised		-			-
Expired		(13,000	)		3.35
Forfeited or cancelled		(41,047	)		14.65
Outstanding at October 15, 2023		2,849,852		$	12.61		6.90	$	8,250
Exercisable at October 15, 2023		1,299,441		$	7.53		4.64

The unrecognized expense related to our stock option plan totaled approximately $5,112 as of October 15, 2023 and will be expensed over a weighted average period of 3.04 years.

Note 9 – Warrants

As of October 15, 2023, outstanding warrants were as follows:

Warrants	Number of Warrants		Weighted-Average Exercise Price
Outstanding at April 30, 2023		483,649	$	1.31
Granted		48,530		0.01
Expired		-		-
Outstanding as of October 15, 2023		532,179	$	1.19

In fiscal year 2023, the Company issued 267,000 warrants to Silverview Credit Partners LP (“Silverview”), recorded at fair value in additional paid-in capital within the condensed consolidated balance sheet of $1,712, net of issuance costs. Upon surrender of these warrants, the holder is entitled to purchase one share of the Company’s common stock at $0.01. Furthermore, in fiscal year 2023, the Company issued 7,500 warrants to another service provider with an exercise price of $10 per share and fair value of $10.

On August 1, 2023, the Company and Silverview amended and restated a warrant agreement to correct the number of shares of common stock Silverview is entitled to subscribe and purchase from 258,303 to 162,946. A separate warrant agreement for 8,697 warrants of the 267,000 issued in fiscal year 2023 was not amended and the warrants remain issued. Under the term loan agreement, the Company is contractually obligated to issue a specified number of warrants to Silverview in the event the Company elects to exercise its right to obtain additional funding from Silverview under the Tranche 2 loan agreement. Therefore, the remaining warrants, are considered contingently issuable and the contingency is satisfied when a draw on Tranche 2 occurs.

15

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 9 – Warrants (Continued)

As a result of the amended and restated warrant agreement, the Company determined the contingently issuable warrants require recognition as a liability. The contingently issuable warrants were reclassified at their current fair value on August 1, 2023. When the contingently issuable warrants’ contingency is satisfied, the respective warrant shares will be considered indexed to the Company’s common stock and qualify for equity classification under the derivative scope exception provided by Accounting Standards Codification 815, Derivatives and Hedging (ASC 815). Upon the satisfaction of the issuance contingency, the Company shall (i) reclassify the respective warrant shares to equity and (ii) recognize any previous gains or losses in fair value through earnings during the period the shares were classified as a liability.

On August 1, 2023, the Company issued 7,629 warrant shares to Silverview in exchange for $1,000 in funding drawn under Tranche 2 loan commitment on July 27, 2023 (see Note 4). As of August 1, 2023, 179,272 shares were considered issued warrants and 87,728 shares were considered contingently issuable warrants. For accounting purposes, all 267,000 warrants were still considered issued and outstanding.

On September 29, 2023, the Company issued 11,443 warrants in exchange for the issuance of borrowing $1,500 under the Tranche 2 loan. As the contingency was satisfied for these warrants, $173 was reclassed from the warrant liability to additional paid-in-capital. As of October 15, 2023, the Company recorded a warrant liability of $1,049 in other accrued liabilities for 76,285 of the Silverview contingently issuable warrants.

In April 2023 and July 2023, the Company also issued 111,619 and 48,530 warrants, respectively, to Granite Creek Capital Partners LLC (“Granite Creek”) in connection with its equipment loan agreements. The lender has the right to require the Company to pay cash to repurchase all or any portion of the warrants or the shares of common stock issued under the warrants. The Company determined these warrants require liability classification in accordance with Accounting Standards Codification 480, Distinguishing Liabilities from Equity (ASC 480), and as a result, recorded a warrant liability of $1,925 and $2,202 in other accrued liabilities as of April 30, 2023 and October 15, 2023, respectively.

In determining the fair value of the Granite Creek warrants and Silverview contingently issuable warrants as of October 15, 2023, the Company utilized the intrinsic value valuation method using level 3 inputs consisting of the fair value of common stock as of October 15, 2023 less the exercise price of $0.01 for Silverview and previously issued Granite Creek warrants and less the exercise price of $0.001 for the Granite Creek warrants issued in July 2023. The Company adjusts the warrants to fair value at each reporting period. During the twenty-four weeks ended October 15, 2023, the change in the fair value was as follows:

Warrant liability as of April 30, 2023	$	1,925
Change in fair value		409
Warrant liability as of July 23, 2023	$	2,334
Granted to Granite Creek		1,015
Reclassification of liability-classified warrants		1,834
Issuance of contingently issuable shares		(173	)
Change in fair value		(1,759	)
Warrant liability as of October 15, 2023	$	3,251

The change in fair value of the warrant is reported on a separate line item in the unaudited condensed consolidated statement of operations. Upon surrender of these warrants, the holder is entitled to purchase one share of the Company’s common stock at $0.01.

All outstanding warrants expire at the earlier of 10 years from the date of issuance (various dates during fiscal years 2024 through 2033) or upon consummation of an initial public offering by the Company or certain other company transactions and are exercisable as of October 15, 2023, excluding the contingently issuable warrants.

16

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 10 – Net Earnings (Loss) Per Share

Beginning in fiscal year 2024, basic net loss per share is calculated using the two-class method required for companies with participating securities. The two-class method is an earnings allocation formula under which the Company treats participating securities as having rights to earnings that otherwise would have been available to common shareholders. The Company considers Series I Preferred Stock to be a participating security as the holders are entitled to receive dividends on an as-if converted basis equal to common stock in addition to the Series I Preferred Stock dividend yield.

Basic net (loss) income per share is computed by dividing net (loss) income attributable to common shareholders by the weighted average number of common stock outstanding, including issued but unexercised pre-funded warrants outstanding, during the respective periods. As the contingently issuable warrants are contingent upon additional funding under the Tranche 2 loan being received, they have not been included in the calculation of basic net (loss) income per share. Diluted net (loss) income per share is calculated using the more dilutive of either the treasury stock, and if-converted method, as applicable, or the two-class method assuming the participating security is not converted. Diluted net (loss) income per share reflects the weighted average dilutive impact of all potentially dilutive securities from the date of issuance and is computed using the treasury stock and if-converted methods. The if-converted method is used to determine if the impact of conversion of the preferred stock into common stock is more dilutive and for Series I, if such conversion is more dilutive than the Series I dividends to net (loss) income per share. If so, the preferred stock is assumed to have been converted at the later of the beginning of the period or the time of issuance, and the resulting ordinary shares are included in the denominator and the dividends are added back to the numerator.

The Company did not declare any common stock dividends in the periods presented. The following tables provide the calculation of basic and diluted net (loss) earnings per share of common stock for the twelve and twenty-four weeks ended October 15, 2023 and October 9, 2022:

	Twelve Weeks Ended						Twenty-Four Weeks Ended
	October 15,			October 9,			October 15,			October 9,
	2023			2022			2023			2022
Numerator:
Net (loss) income	$	(7,283	)	$	(3,390	)	$	(10,329	)	$	1,645
Cumulative unpaid dividends on preferred stock		(394	)		-			(528	)		-
Change in redemption amount of preferred stock		-			-			(1,423	)		-
Net loss on which basic and diluted earnings per share is calculated	$	(7,677	)	$	(3,390	)	$	(12,280	)	$	1,645
Denominator:
Weighted average common shares outstanding, basic		6,535			6,168			6,550			6,168
Dilutive awards outstanding		-			-			-			10,824
Weighted average common shares outstanding, diluted		6,535			6,168			6,550			16,992
Earnings (loss) per share:
Basic	$	(1.17	)	$	(0.55	)	$	(1.87	)	$	0.27
Diluted		(1.17	)		(0.55	)		(1.87	)		0.10

17

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 10 – Net Earnings (Loss) Per Share (Continued)

The following table conveys the number of shares that may be dilutive potential common shares in the future. The holders of these shares do not have a contractual obligation to share in the Company’s losses. The Company excluded the following potential common shares, presented based on amounts outstanding at each period end, from the computation of diluted loss per share (in thousands):

	Twelve Weeks Ended				Twenty-Four Weeks Ended
	October 15,		October 9,		October 15,
	2023		2022		2023
Stock options		2,850		2,256		2,850
Preferred stock (as converted to common shares)		12,383		10,204		12,383
Convertible debt (as converted to common shares)		513		507		513
Contingently issuable warrants		76		-		76
Warrants		105		105		105
Total common stock equivalents		15,927		13,072		15,927

Note 11 – Commitments and Contingencies

The Company is subject to certain legal proceedings and claims that arise in the ordinary course of business, including claims alleging violations of federal and state law regarding workplace and employment matters, discrimination, slip-and-fall and other customer-related incidents, and similar matters. While it is not feasible to predict the outcome of all proceedings and exposures with certainty, management believes that their ultimate disposition should not have a material adverse effect on the Company’s consolidated financial position, results of operations or cash flows.

Note 12 – Related Party Transactions

For the twelve and twenty-four weeks ended October 15, 2023 and October 9, 2022, a company owned by an individual with ownership in common shares of the Company, and who is a relative of an executive officer, performed design services and supplied furniture, fixtures, and equipment for existing and new locations under construction of $10 and $21, and $1,367 and $4,119, respectively. As of October 15, 2023 and April 30, 2023, $1,742 and $1,911 due to this related party is included in accounts payable within the condensed consolidated balance sheets, respectively.

Note 13 – Subsequent Events

The Company evaluated subsequent events through January 3, 2024, the date the quarterly financial statements were available to be issued and determined there were no additional items that required further disclosure or recognition, with the exception of additional financing.

On October 20, 2023 and December 29, 2023, the Company received $5,000 on each date in additional debt proceeds under Tranche 2 from Silverview Credit Partners LP to fund expansion, which will bear interest at 15% and will be payable in full on June 7, 2027.

18

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 13 – Subsequent Events (Continued)

On November 22, 2023, the Company and Banyan Acquisition Corporation entered into a Second Amended and Restated Business Combination Agreement (“2^nd Amended BCA”), which amends and restates the Amended BCA, dated as of September 26, 2023. Pursuant to the Second Amended BCA, holders of common stock of Pinstripes prior to the closing of the Business Combination (excluding holders of common stock issued in connection with the conversion of the Series I Convertible Preferred Stock of Pinstripes) would receive an aggregate of 4,000,000 shares of New Pinstripes Class B Common Stock (pro rata to each such holder’s entitlement to consideration in connection with the Merger) as set forth on an allocation  schedule to be delivered by Pinstripes to Banyan at least three business days prior to the Closing, which shares shall be subject to the vesting and forfeiture conditions and restrictions on transfer as implemented in the Proposed Charter by the issuance of shares of New Pinstripes Series B-3 Common Stock, which shall convert into shares of New Pinstripes Class A Common Stock upon the satisfaction of the vesting conditions described herein. In addition, the amendment also provides that a number of shares equal to the number of shares that the Sponsor will forfeit in connection with the Closing, in accordance with the amended sponsor letter agreement, will be issued to the holders of common stock of Pinstripes prior to the closing of the Business Combination as merger consideration.

On December 4, 2023, Granite Creek exercised its outstanding warrants of 111,619 and 48,530 at an exercise price of $0.01 and $0.001, respectively.

On December 29, 2023, the Company entered into a definitive agreement with Oaktree Capital Management, L.P. (“Oaktree”) under which the Company issued Senior Secured Notes (“Senior Notes") to Oaktree, which mature in five years on December 29, 2028. The principal payment is due at maturity. The agreement provides for Senior Notes up to $90,000 in the aggregate to be funded in two issuances as follows (a) an initial purchase of $50,000 of Senior Notes (“Initial Notes”) at the closing of the BCA agreement, which occurred on December 29, 2023, and (b) an additional purchase of $40,000 of Senior Notes in the sole discretion of Oaktree to be issued no earlier than nine months and no later than 12 months after the BCA closing date (“Additional Notes”). The Company will use the proceeds from the Senior Notes for general business purposes, including the settlement of BCA related transaction costs. The Senior Notes will accrue on a daily basis calculated based on a 360-day year at a rate per annum equal to (i) 12.5% payable in arrears, at Pinstripes’ option either in cash or in kind (subject to certain procedures and conditions); provided that the interest payable in respect of any period following December 31, 2024, interest under this clause (i) will be required to be paid solely in cash, plus (ii) 7.5% payable quarterly in arrears, at Pinstripes’ option, either in cash or in kind (subject to certain procedures and conditions). The Senior Notes are collateralized by the assets and equity of the business, subject to intercreditor agreements with Silverview and Granite Creek. The Silverview and Granite Creek Notes were amended as part of the issuance of the Senior Notes. The Silverview and Granite Creek Notes were amended to include Oaktree in the intercreditor agreements and align the measurement periods for the financial covenants of all Notes. The Senior Notes, along with the amended Silverview and Granite Creek Notes, require the Company to maintain certain financial covenants, as defined. The first covenant measurement period is ending on January 6, 2025.

In conjunction with the issuance Initial Notes, Oaktree will be granted fully detachable warrants for 2,500,000 shares of common stock of New Pinstripes at a strike price equal to $0.01 per share. In the event that the volume-weighted average price per share of New Pinstripes’ common stock during the period commencing on the 91st day after the BCA is completed and ending 90 days thereafter is less than $8.00 per share or $6.00 per share, Oaktree will be granted additional warrants for 187,500 shares or 412,500 shares, respectively, of common stock of New Pinstripes at a strike price equal to $0.01 per share. These warrants may be exercised at any time for 10 years following the closing date.

19

Pinstripes, Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

(Dollars in thousands, except per share amounts)

Twelve and Twenty-Four Weeks Ended October 15, 2023 and October 9, 2022

Note 13 – Subsequent Events (Continued)

Upon the purchase of the Additional Notes, Oaktree will be granted additional detachable warrants for 1,750,000 shares of common stock of New Pinstripes at a strike price equal to $0.01 per share. If Additional Notes are purchased and the volume-weighted average price per share of New Pinstripes’ common stock during the period commencing on the 91st day after the BCA is completed and ending 90 days thereafter is less than $6.00 per share, Oaktree will be granted additional warrants of 150,000 shares of common stock of New Pinstripes at a strike price equal to $0.01 per share. These warrants may be exercised at any time for 10 years following the closing date.

20

EX-99.2

Exhibit 99.2

Pinstripes Holding, Inc.

Unaudited Pro Forma Condensed Combined Balance Sheet
As of October 15, 2023
(in thousands)

	Historical						Actual Redemptions
	As of September 30, 2023			As of October 15, 2023			Transaction
	(Unaudited) Banyan			(Unaudited) Pinstripes			Accounting Adjustment			Note	Pro Forma Combined
ASSETS
Current Assets
Cash and cash equivalents	$	305		$	7,991		$	36,105		3(a)	$	44,401
Accounts receivable		-			1,121			-				1,121
Inventories		-			830			-				830
Other current assets		105			662			-				767
Total current assets		410			10,604			36,105				47,118
Funds held in Trust Account		42,424			-			(42,424	)	3(b)		-
Property and equipment, net		-			69,734			-				69,734
Operating lease right-out-use asset		-			49,185			-				49,185
Other long-term assets		-			11,780			(5,093	)	3(c)		6,687
Total assets	$	42,834		$	141,303		$	(11,412	)		$	172,725
LIABILITIES, MEZZANINE EQUITY, & STOCKHOLDERS’ DEFICIT
Current Liabilities
Accounts payable	$	409		$	24,027		$	(827	)	3(d)	$	23,609
Accrued expenses		3,551			-			(3,541	)	3(e)		10
Amounts due to customer		-			8,158			-				8,158
Current portion of long-term debt		-			2,243			-				2,243
Accrued occupancy costs		-			5,556			-				5,556
Other current liabilities		133			10,227			(3,966	)	3(f)		6,394
Excise tax liability		2,100			-			-				2,100
Promissory notes, related parties		506			-			(506	)	3(g)		-
Operating lease liabilities, current		-			10,824			-				10,824
Total current liabilities		6,699			61,035			(8,840	)			58,894
Long-term debt		-			41,959			36,402		3(h)		78,361
Long-term accrued occupancy costs		-			699			-				699
Operating lease liabilities, noncurrent		-			89,888			-				89,888
Other long-term liabilities		-			1,038			-				1,038
Warrant liability		4,353			-			-				4,353
Deferred underwriting fees		3,623			-			(3,623	)	3(i)		-
Total liabilities		14,675			194,619			23,939				233,233
Mezzanine Equity
Pinstripes’ Redeemable Convertible Preferred Stock		-			75,262			(75,262	)	3(j)		-
Banyan's Redeemable Class A Common Stock		42,424			-			(42,424	)	3(k)		-
Stockholders’ Deficit
Pinstripes Common Stock		-			62			(62	)	3(l)		-
New Pinstripes Class A Common Stock		-			-			4		3(m)		4
New Pinstripes Class B-1 Common Stock		-			-			-				-
New Pinstripes Class B-2 Common Stock		-			-			-				-
New Pinstripes Class B-3 Common Stock		-			-			-				-
Banyan Class A Common Stock		0			-			0		3(n)		-
Banyan Class B Common Stock		1			-			(1	)	3(o)		-
Additional paid-in capital		-			482			69,879		3(p)		70,361
Accumulated deficit		(14,266	)		(129,122	)		12,515		3(q)		(130,873	)
Total stockholders’ deficit		(14,265	)		(128,578	)		82,335				(60,508	)
Total liabilities, mezzanine equity, & stockholders’ deficit	$	42,834		$	141,303		$	(11,412	)		$	172,725

The accompanying notes are an integral part of the unaudited pro forma condensed combined balance sheet.

Pinstripes Holding, Inc.
Unaudited Pro Forma Condensed Combined Statement of Operations
For the Fiscal Year Ended April 30, 2023
(in thousands, except for share and per share amounts)

	Historical						Actual Redemptions
	Twelve Months Ended June 30, 2023 (Unaudited)			Twelve Months Ended April 30, 2023			Transaction Accounting				Pro Forma
	Banyan			Pinstripes			Adjustment			Note	Combined
Revenue
Food and beverage revenues	$	-		$	87,467		$	-			$	87,467
Recreation revenues		-			23,806			-				23,806
Total revenue		-			111,273			-				111,273
Operating Expenses
Cost of food and beverage		-			18,968			-				18,968
Store labor and benefits		-			40,415			-				40,415
Store occupancy costs, excluding depreciation		-			18,375			-				18,375
Other store operating expenses, excluding depreciation		-			18,655			-				18,655
Exchange listing fee		83			-			-				83
Legal fees		2,607			-			-				2,607
General and administrative expenses		1,472			13,205			30		4(a)		14,707
Depreciation expense		-			8,086			-				8,086
Impairment loss		-			2,363			-				2,363
Pre-opening expenses		-			4,935			-				4,935
Total operating expenses		4,162			125,002			30				129,194
Operating loss		(4,162	)		(13,729	)		(30	)			(17,921	)
Other Income (Expense)
Interest income		7,388			-			(7,388	)	4(b)		-
Interest expense		-			(1,946	)		(17,994	)	4(c)		(19,940	)
Other non-operating expenses		-			(13	)		-				(13	)
Gain on debt extinguishment		-			8,355			-				8,355
Unrealized loss on funds held in the Trust Account		(11	)		-			11		4(d)		-
Change in fair value of warrant liability		(2,133	)		-			-				(2,133	)
Total other income (expense)		5,244			6,396			(25,371	)			(13,731	)
Income (loss) before income taxes		1,082			(7,333	)		(25,401	)			(31,652	)
Income tax expense		1,475			192			-				1,667
Net loss	$	(393	)	$	(7,525	)	$	(25,401	)		$	(33,319	)
Weighted average shares outstanding – basic and diluted		27,507,247			6,210,254					6		39,918,036
Net loss per share – basic and diluted	$	(0.01	)	$	(1.21	)				6	$	(0.83	)

The accompanying notes are an integral part of the unaudited pro forma condensed combined statement of operations.

Pinstripes Holding, Inc.

Unaudited Pro Forma Condensed Combined Statement of Operations
For the Twenty-Four Weeks Ended October 15, 2023
(in thousands, except for share and per share amounts)

	Historical						Actual Redemptions
	Six Months Ended September 30, 2023			Twenty-Four Weeks Ended October 15, 2023			Transaction
	(Unaudited) Banyan			(Unaudited) Pinstripes			Accounting Adjustment			Note	Pro Forma Combined
Revenue
Food and beverage revenues	$	-		$	39,952		$	-			$	39,952
Recreation revenues		-			10,412			-				10,412
Total revenue		-			50,364			-				50,364
Operating Expenses
Cost of food and beverage		-			8,715			-				8,715
Store labor and benefits		-			18,634			-				18,634
Store occupancy costs, excluding depreciation		-			5,590			-				5,590
Other store operating expenses, excluding depreciation		-			9,556			-				9,556
Exchange listing fee		42			-			-				42
Legal fees		3,377			-			-				3,377
General and administrative expenses		1,285			7,302			-				8,587
Depreciation expense		-			3,341			-				3,341
Impairment loss		-			5,304			-				5,304
Pre-opening expenses		4,704			58,442			-				63,146
Total operating expenses		(4,704	)		(8,078	)		-				(12,782	)
Other Income (Expense)
Interest income		1,696			-			(1,696	)	5(a)		-
Interest expense		-			(3,601	)		(8,590	)	5(b)		(12,191	)
Change in fair value of warrant liability		(3,301	)		1,350			-				(1,951	)
Unrealized loss on funds held in the Trust Account		(47	)		-			47		5(c)		-
Total other expense		(1,652	)		(2,251	)		(10,239	)			(14,142	)
Loss before income taxes		(6,356	)		(10,329	)		(10,239	)			(26,924	)
Income tax expense		335			-			-				335
Net loss	$	(6,691	)	$	(10,329	)	$	(10,239	)		$	(27,259	)
Less: cumulative unpaid dividends and change in redemption amount of Pinstripes’ Series I Redeemable Convertible Preferred Stock		-			(1,951	)		1,951		5(d)		-
Net loss available to common stockholders	$	(6,691	)	$	(12,280	)	$	(8,288	)		$	(27,259	)
Weighted average shares outstanding – basic and diluted		13,568,839			6,550,290					6		39,918,036
Net loss per share – basic and diluted	$	(0.49	)		(1.87	)				6	$	(0.68	)

The accompanying notes are an integral part of the unaudited pro forma condensed combined statement of operations.

NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS

Note 1 – Basis of Presentation

The accompanying unaudited pro forma condensed combined financial statements and related notes were prepared pursuant with Article 11 of SEC Regulation S-X, as amended by final rule, Release No. 33-10786 “Amendments to Financial Disclosures about Acquire and Disposed Business.” The fiscal year end of Pinstripes is the 52/53-week period ending on the last Sunday in April, which is April 30, 2023, for fiscal year end 2023, while Banyan has a December 31, 2022, calendar year end. The calendar year end of Banyan has been adjusted to conform to the fiscal year end of Pinstripes, for purposes of presenting the unaudited pro forma condensed combined financial information, pursuant to Rule 11-02(c)(3) of Regulation S-X, given the most recent fiscal year ends differed by more than one fiscal quarter. At the Closing of the Business Combination, New Pinstripes changed its fiscal year end to the last Sunday in April. Accordingly, the accompanying unaudited pro forma condensed combined balance sheet as of October 15, 2023, combines the unaudited historical condensed consolidated balance sheet of Banyan as of September 30, 2023, with the unaudited historical consolidated balance sheet of Pinstripes as of October 15, 2023, after giving effect to the Closing of the Business Combination as if it occurred on October 15, 2023. The unaudited pro forma condensed combined statement of operations for the fiscal year end April 30, 2023, was derived by adding the results of the unaudited historical condensed consolidated statement of operations of Banyan for the six months ended June 30, 2023, to the results of the audited historical statement of operations of Banyan for the calendar year ended December 31, 2022, removing the results of the unaudited historical condensed statement of operations of Banyan for the six months ended June 30, 2022, and combining the results of the audited historical consolidated statement of operations of Pinstripes for the fiscal year ended April 30, 2023 after giving effect to the Business Combination, as if the Closing of the Business Combination had occurred on April 25, 2022. The unaudited pro forma condensed combined statement of operations for the twenty-four weeks ended October 15, 2023, was derived by removing the results of the unaudited historical statement of operations of Banyan for the three months ended March 31, 2023, from the results of the unaudited historical condensed consolidated statement of operations of Banyan for the nine months ended September 30, 2023, and combining the unaudited historical results of Pinstripes for the twenty-four weeks ended October 15, 2023, after giving effect to the Business Combination, as if the Closing of the Business Combination had occurred on April 25, 2022.

Banyan’s and Pinstripes’ unaudited and audited financial statements were prepared in accordance with GAAP and presented in U.S. dollars. Notwithstanding the legal form of the Business Combination pursuant to the Business Combination Agreement, the Business Combination is accounted for as a reverse recapitalization of Pinstripes, as Pinstripes has been determined to be the accounting acquirer primarily based on the evaluation of the following facts and circumstances:

● Existing Pinstripes Stockholders comprise a relative majority of the voting power of New Pinstripes;

● Pinstripes’ operations prior to the Closing of the Business Combination comprise the only ongoing operations subsequent to the Closing of the Business Combination;

● The substantial majority of the New Pinstripes Board were appointed by Pinstripes; and

● All of New Pinstripes’ senior management are comprised of Pinstripes’ senior management.

Accordingly, the Business Combination is reflected as the equivalent of Pinstripes issuing stock for the net assets of Banyan, accompanied by a reverse recapitalization. Under this method of accounting, Banyan, which is the legal acquirer, is treated as the “acquired” company for financial reporting purposes. The net assets of Banyan are stated at fair value, which is expected to approximate historical cost, with no goodwill or other intangible assets recorded. Operations prior to the Closing of the Business Combination are those of Pinstripes.

Following the Closing, holders of Banyan’s Redeemable Class A Common Stock exercising redemption rights received their per share redemption price from the funds held in the Trust Account. Each Banyan equityholder that was a holder of shares of Banyan’s Redeemable Class A Common Stock may have elected to redeem all or a portion of the Banyan’s Redeemable Class A Common Stock at a per share price, payable in cash, equal to a pro rata share of the aggregate amount of the funds held in the Trust Account, calculated as of two business days prior to the Closing, including any interest earned on the funds held in the Trust Account (net of any taxes payable).

Management is performing a comprehensive review of Banyan’s and Pinstripes’ accounting policies. As a result of the review, management may identify differences between the accounting policies of the two entities which, when conformed, could have a material impact on the financial statements of New Pinstripes. Based on its initial analysis, management did not identify any differences that would have a material impact on the financial statements of New Pinstripes. As a result, the unaudited pro forma condensed combined financial information does not assume any differences in accounting policies.

The unaudited pro forma condensed combined financial information has been prepared to illustrate the effect of the Closing of the Business Combination and has been prepared for information purposes only. The pro forma combined provision for income taxes does not necessarily reflect the amounts that would have resulted had New Pinstripes filed consolidated income tax returns during the periods presented.

Note 2 – Description of the Business Combination

As previously announced, Banyan, Merger Sub, and Pinstripes entered into the Business Combination Agreement, dated as of June 22, 2023, as amended by the Amended and Restated Business Combination Agreement, dated as of September 26, 2023, and the Second Amended and Restated Agreement, dated as of November 22, 2023 (as amended, the “Business Combination Agreement”). On September 11, 2023, in connection with the Business Combination, Banyan first filed with the U.S. Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-4 (No. 333-274442) (as amended, the “Registration Statement”) containing a joint proxy statement/consent solicitation statement/prospectus of Banyan (such proxy statement/consent solicitation statement/prospectus in definitive form, the “Definitive Proxy Statement”), which Registration Statement was declared effective by the SEC on December 4, 2023, and Banyan commenced mailing the Definitive Proxy Statement, which was filed with the SEC on December 5, 2023.

As contemplated by the Merger Agreement and described in the section titled “Proposal No. 1 – The Business Combination Proposal” of the Definitive Proxy Statement, the Closing of the Business Combination was effected on December 29, 2023 and Merger Sub merged with and into Pinstripes, with Pinstripes as the surviving entity and a wholly-owned subsidiary of Banyan ("New Pinstripes”).

Immediately prior to the Closing of the Business Combination (1) all 11,089,698 outstanding shares of Pinstripes’ Redeemable Convertible Preferred Stock (including the 850,648 shares of Pinstripes’ Series I Redeemable Convertible Preferred Stock and the 35,102 shares payable for the settlement of the cumulative unpaid dividends) automatically converted into 11,089,698 shares of Pinstripes Common Stock in accordance with the governing documents of Pinstripes; (2) the 354,426 outstanding Pinstripes’ warrants were automatically converted into 365,426 shares of Pinstripes Common Stock; and (3) the Pinstripes Convertible Notes were automatically converted into 500,000 shares of Pinstripes Common Stock (collectively, the “Conversion Shares”).

The equity and financing relating matters that occurred at, or following, the Closing of the Business Combination on December 29, 2023 are summarized as follows:

i. Each of the then-issued and outstanding 17,422,009 shares of Pinstripes Common Stock held by the Pinstripes Stockholders (including the Conversion Shares, with exception to the shares of Pinstripes Common Stock held by the investors of Pinstripes’ Series I Redeemable Convertible Preferred Stock (the “Series I Investors”) were automatically cancelled and converted into 32,206,458 shares of New Pinstripes Class A Common Stock (based on the Exchange Ratio of approximately 1.85 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock) equal to the aggregate Equity Value. For the avoidance of doubt, the Series I Investors are not, and do not constitute, Pinstripes Stockholders as referenced herein.

ii. The 885,750 shares of Pinstripes Common Stock held by the Series I Investors were cancelled and exchange into 2,214,375 shares of New Pinstripes Class A Common Stock (based on the Series I Exchange Ratio of approximately 2.50 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock).

iii. All 32,203 of the then-issued and outstanding shares of Banyan’s Redeemable Class A Common Stock held by Banyan equityholders converted (on a one-for-one basis) into 32,203 shares of New Pinstripes Class A Common Stock.

iv. The Sponsor Holders forfeited 1,242,975 shares of the then-issued and outstanding Banyan Class A Common Stock, which were re-issued as 1,242,975 shares of New Pinstripes Class A Common Stock to the Pinstripes Stockholders pursuant to the provisions of the Amended Sponsor Letter dated as of November 22, 2023. For the avoidance of doubt, the Series I Investors are not, and do not constitute, Pinstripes Stockholders as referenced herein.

v. The Sponsor Holders forfeited 507,025 shares of the then-issued and outstanding Banyan Class A Common Stock, which were re-issued as 507,025 shares of New Pinstripes Class A Common Stock to the Series I Investors in connection with the Series I Financing.

vi. The Sponsor Holders forfeited 1,018,750 shares of the then-issued and outstanding Banyan Class A Common Stock, which were re-issued as 1,018,750 shares of New Pinstripes Class A Common Stock to certain Banyan equityholders pursuant to certain non-redemption agreements.

vii. 915,000 of the then-issued and outstanding shares of Banyan Class A Common Stock held by the Sponsor Holders converted (on a one-for-one basis) into 915,000 shares of New Pinstripes Class B-1 Common Stock, 570,000 of the then-issued and outstanding shares of Banyan Class A Common Stock held by the Sponsor Holders converted (on a one-for-one basis) into 570,000 shares of New Pinstripes Class B-2 Common Stock, and all 345,000 of the then-issued and outstanding shares of Banyan Class B Common Stock held by the Sponsor Holders converted (on a one-for-one basis) into 345,000 shares of New Pinstripes Class B-2 Common Stock (collectively, the “Sponsor Earnout Shares”). The Sponsor Earnout Shares are subject to forfeiture and/or vesting upon the satisfaction of certain stock trading price conditions and represent an equity-linked contract that is classified in equity.

viii. The remaining 2,646,520 of the then-issued and outstanding shares of Banyan Class A Common Stock held by the Sponsor Holders continued as 2,646,520 shares of New Pinstripes Class A Common Stock.

ix. An aggregate of 5,000,000 shares (comprised of 2,500,000 shares of New Pinstripes Class B-1 Common Stock and 2,500,00 shares of New Pinstripes Class B-2 Common Stock) were issued to Pinstripes Stockholders, subject to forfeiture and/or vesting upon the satisfaction of certain stock trading price conditions (the “Earnout Shares”). The Earnout Shares represent an equity-linked contract that is classified in equity. For the avoidance of doubt, the Series I Investors are not, and do not constitute, Pinstripes Stockholders as referenced herein.

x. 4,000,000 shares of New Pinstripes Class B-3 Common Stock were issued to Pinstripes Stockholders, subject to forfeiture and/or vesting upon the satisfaction of a financial performance condition (the “EBITDA Earnout Shares”). The EBITDA Earnout Shares represent an equity-linked contract that is classified in equity. For the avoidance of doubt, the Series I Investors are not, and do not constitute, Pinstripes Stockholders as referenced herein.

xi. All 2,722,593 of the then-issued and outstanding Pinstripes’ options held by Pinstripes Stockholders (whether vested or unvested) were automatically cancelled and converted into 5,032,434 New Pinstripes Options (based on the Exchange Ratio of approximately 1.85 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock). Each outstanding vested New Pinstripes Option entitles the holder the right to purchase one (1) share of New Pinstripes Class A Common Stock. For the avoidance of doubt, the Series I Investors are not, and do not constitute, Pinstripes Stockholders as referenced herein.

xii. Simultaneously with, and in contemplation of, the Closing of the Business Combination, Pinstripes and Banyan entered into a loan agreement with Oaktree Fund Administration, LLC, as Agent, and the lender party thereto for aggregate cash proceeds of $50.0 million (the “Tranche 1 Loan”) with an interest that will accrue based on a 360-day year at a rate per annum equal to (i) 12.5% payable quarterly in arrears, at Pinstripes’ option either in cash or in kind (subject to certain procedures and conditions); provided that the interest payable in respect of any period following December 31, 2024, interest under this clause (i) will be required to be paid solely in cash, plus (ii) 7.5% payable quarterly in arrears, at Pinstripes’ option, either in cash or in kind (subject to certain procedures and conditions). The maturity date of the Tranche 1 Loan is December 29, 2028. Concurrently with the closing of the Tranche 1 Loan, the lender party was granted fully detachable warrants exercisable for 2,500,000 shares of New Pinstripes Class A Common Stock at an exercise price of $0.01 per share. In connection with the closing of the Tranche 1 Loan, Banyan, Merger Sub, and Pinstripes agreed to waive the Minimum Cash Amount condition set forth by the Business Combination Agreement.

xiii. Pinstripes borrowed an additional $5.0 million under its credit facility with Silverview Credit Partners LP.

xiv. Within five (5) business days after the Closing of the Business Combination, 50,000 shares of New Pinstripes Class A Common Stock are being issued to a third party as payment for $0.5 million of Pinstripes’ incurred transaction costs. The transaction costs were incurred in connection with the Closing of the Business Combination.

On December 21, 2023, Banyan held the Extension Meeting to approve the Extension Amendment and the Redemption Limitation Amendment (the “Extension Meeting”). In connection with the vote to approve the Extension Amendment and the Redemption Limitation Amendment, the holders of 1,314,065 shares of Banyan’s Redeemable Class A Common Stock exercised their right to redeem the shares for cash at an aggregate redemption price of $14.1 million, calculated using the actual redemption price of approximately $10.73 per share.

On December 5, 2023, Banyan filed the Definitive Proxy Statement for the solicitation of proxies in connection with a special meeting (the “Business Combination Meeting”) to approve the Business Combination Agreement and the Business Combination contemplated thereby. The Business Combination Meeting was held on December 27, 2023 whereby Banyan’s stockholders approved the Business Combination Agreement and the consummation of the transactions to effect the Closing of the Business Combination. In connection with the vote to approve the Business Combination Agreement and the Business Combination contemplated thereby, the holders of 2,652,419 shares of Banyan’s Redeemable Class A Common Stock exercised their right to redeem the shares for cash at an aggregate redemption price of $28.5 million, calculated using the actual redemption price of approximately $10.76 per share.

The following table summarizes the unaudited pro forma combined shares of New Pinstripes Class A Common Stock issued and outstanding immediately after the Closing of the Business Combination, excluding the potential dilutive effect of outstanding vested and unvested New Pinstripes Options:

	Share Ownership in New Pinstripes
	Shares		%
Pinstripes Stockholders(1)		33,449,433		83.8	%
Series I Investors(2)		2,721,400		6.8	%
Sponsor Holders(3)		2,646,250		6.6	%
Banyan equityholders(4)		1,050,953		2.7	%
Other(5)		50,000		0.1	%
Total shares after the Closing of the Business Combination		39,918,036		100	%

(1)	The number of shares held by the Pinstripes Stockholders is comprised of (i) the 6,363,628 then-issued and outstanding shares of Pinstripes Common Stock that were automatically cancelled and converted into 11,763,851 shares of New Pinstripes Class A Common Stock, based on the Exchange Ratio of approximately 1.85 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock, at the Closing of the Business Combination; (ii) the 924,304 then-issued and outstanding shares of Pinstripes Common Stock (that resulted from the automatic conversion of Pinstripes Convertible Notes immediately prior to the Closing of the Business Combination) that were automatically cancelled and converted into 924,304 shares of New Pinstripes Class A Common Stock, based on the Exchange Ratio of approximately 1.85 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock or common stock equivalent, at the Closing of the Business Combination; (iii) the 354,436 of the then-issued and outstanding shares of Pinstripes Common Stock (that resulted from the automatic conversion of Pinstripes’ warrants immediately prior to the Closing of the Business Combination) that were automatically cancelled and converted into 655,213 shares of New Pinstripes Class A Common Stock, based on the Exchange Ratio of approximately 1.85 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock or common stock equivalent, at the Closing of the Business Combination; (iv) the 10,203,945 then-issued and outstanding shares of Pinstripes Common Stock (that resulted from the automatic conversion of the Pinstripes’ Redeemable Convertible Preferred Stock, excluding Pinstripes’ Series I Redeemable Convertible Preferred Stock and the cumulative unpaid dividends accrued thereon, immediately prior to the Closing of the Business Combination) that were automatically cancelled and converted into 18,863,090 shares of New Pinstripes Class A Common Stock, based on the Exchange Ratio of approximately 1.85 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock or common stock equivalent; and (v) the 1,242,975 shares of New Pinstripes Class A Common Stock (that resulted from the Sponsor Holders forfeiting 1,242,975 shares of the then-issued and outstanding Banyan Class A Common Stock which were re-issued as 1,242,975 shares of New Pinstripes Class A Common Stock) issued to the Pinstripes Stockholders at the Closing of the Business Combination. The number of shares held by the Pinstripes Stockholders does not include (i) the 2,500,000 shares of New Pinstripes Series B-1 Common Stock that are subject to certain subject to certain vesting conditions pursuant to the Second Amended and Restated Certificate of Incorporation of New Pinstripes; (ii) the 2,500,000 shares of New Pinstripes Series B-2 Common Stock held by the Pinstripes Stockholders that are subject to certain vesting conditions pursuant to the Second Amended and Restated Certificate of Incorporation of New Pinstripes; or (iii) the 4,000,000 shares of New Pinstripes Series B-3 Common Stock held by the Pinstripes Stockholders that are subject to certain vesting conditions pursuant to the Second Amended and Restated Certificate of Incorporation of New Pinstripes. For the avoidance of doubt, the Series I Investors are not, and do not constitute, Pinstripes Stockholders as referenced herein.
(2)	Represents (i) the 850,648 then-issued and outstanding shares of Pinstripes Common Stock (that resulted from the automatic conversion of Pinstripes’ Series I Redeemable Convertible Preferred Stock immediately prior to the Closing of the Business Combination) that were automatically cancelled and exchanged into 2,126,620 shares of New Pinstripes Class A Common Stock, based on the Series I Exchange Ratio of approximately 2.5 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock or common stock equivalent, at the Closing of the Business Combination; (ii) the 35,102 then-issued and outstanding shares of Pinstripes Common Stock (that resulted from the automatic conversion of the cumulative unpaid dividends on Pinstripes’ Series I Redeemable Convertible Preferred Stock immediately prior to the Closing of the Business Combination) that were automatically cancelled and exchanged into 87,755 shares of New Pinstripes Class A Common Stock, based on the Series I Exchange Ratio of approximately 2.5 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock or common stock equivalent, at the Closing of the Business Combination; and (iii) the 507,025 shares of New Pinstripes Class A Common Stock (that resulted from the Sponsor Holders forfeiting 507,025 shares of the then-issued and outstanding Banyan Class A Common Stock, which were re-issued as 507,025 shares of New Pinstripes Class A Common Stock) issued to the Series I Investors at the Closing of the Business Combination.
(3)	Reflects the 2,646,520 of the then-issued and outstanding shares of Banyan Class A Common Stock held by the Sponsor Holders that continued as 2,646,520 shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination.
(4)	Represents (i) the 32,203 of the then-issued and outstanding shares of Banyan’s Redeemable Class A Common Stock that converted, on a on-for-one basis, into 32,203 shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination; and (ii) the 1,018,750 shares of New Pinstripes Class A Common Stock (that resulted from the Sponsor Holders forfeiting 1,018,750 shares of the then-issued and outstanding Banyan Class A Common Stock, which were re-issued as 1,018,750 shares of New Pinstripes Class A Common Stock) issued to Banyan equityholders, pursuant to certain non-redemption agreements, at the Closing of the Business Combination.

(5) Reflects the 50,000 shares of New Pinstripes Class A Common Stock being issued within five (5) business days after the Closing of the Business Combination to a third-party as payment for $0.5 million of Pinstripes’ incurred transaction costs. The $0.5 million of transaction costs primarily represent fees incurred by Pinstripes for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination.

Note 3 – Adjustments to the Unaudited Pro Forma Condensed Combined Balance Sheet as of October 15, 2023

Refer to the items below for a reconciliation of the pro forma adjustments reflected in the unaudited pro forma condensed combined balance sheet as of October 15, 2023:

3(a) Cash and cash equivalents – Reflects the impact of the Business Combination on the cash and cash equivalents balance of New Pinstripes. The table summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Proceeds from Pinstripes’ financing arrangements, net debt issuance costs	3 (a)(i)	$	9,700
Payments of interest on Pinstripes’ financing arrangements	3 (a)(ii)		(1,561	)
Proceeds from the exercise of Pinstripes' liability-classified warrants	3 (a)(iii)		1
Proceeds from Banyan’s promissory notes	3 (a)(iv)		10
Proceeds from the Tranche 1 Loan closed in connection with the Closing of the Business Combination	3 (a)(v)		50,000
Payment of Banyan’s outstanding promissory notes	3 (a)(vi)		(516	)
Payment of Banyan’s transaction costs	3 (a)(vii)		(16,381	)
Payment of Pinstripes’ transaction costs	3 (a)(viii)		(5,494	)
Reclassification of the funds held in the Trust Account at the Closing of the Business Combination	3 (a)(ix)		346
Pro Forma Adjustment – Cash and cash equivalents		$	36,105

3(a)(i)	Represents the $9.7 million of proceeds received from Pinstripes’ financing arrangements issued subsequent to October 15, 2023, net $0.3 million of aggregate payments in settlement of debt issuance costs. See Note 3(c)(i), Other long-term assets, and Note 3(h)(i), Long-term debt, for the corresponding pro forma adjusting entries.
3(a)(ii)	Reflects the $1.6 million of aggregate interest payments on Pinstripes’ financing arrangements through the Closing of the Business Combination. $1.2 million of the total $1.6 million aggregate interest payments represents the payments for interest accreted on Pinstripes’ financing arrangements subsequent to October 15, 2023. $0.4 million of the total $1.6 million aggregate interest payments represents payments for interest accrued on Pinstripes’ unaudited historical consolidated balance sheet as of October 15, 2023, as a component of the other current liabilities balance. Refer to Note 3(f)(i), Other current liabilities, and Note 3(q)(i), Accumulated deficit, for the corresponding pro forma adjusting entries.
3(a)(iii)	Reflects the proceeds received for the exercise of 160,149 shares of Pinstripes’ liability-classified warrants subsequent to October 15, 2023, in exchange for the issuance of 160,149 shares of Pinstripes Common Stock. See Note 3(f)(ii), Other current liabilities, Note 3(l)(i), Pinstripes Common Stock, and Note 3(p)(i), Additional paid-in capital, for the corresponding pro forma adjusting entries.
3(a)(iv)	Reflects the proceeds received from Banyan’s promissory notes issued to related parties subsequent to September 30, 2023. Refer to Note 3(g)(i), Promissory notes, related parties, for the corresponding pro forma adjusting entry.
3(a)(v)	Reflects the $50.0 million of proceeds received from the Tranche 1 Loan closed in connection with the Business Combination. See Note 3(h)(ii), Long-term debt, and Note 3(p)(xv), Additional paid-in capital, for the corresponding pro forma adjusting entries.
3(a)(vi)	Reflects the $0.5 million payment for the settlement of Banyan’ outstanding promissory notes due to related parties, at the Closing of the Business Combination. Refer to Note 3(g)(ii), Promissory notes, related parties, for the corresponding pro forma adjusting entry.
3(a)(vii)	Reflects the $16.4 million aggregate payments for nonrecurring transaction costs incurred by Banyan and settled at the Closing of the Business Combination. The transaction costs primarily represent fees incurred by Banyan for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination. Of the $16.4 million of transaction costs, (1) $0.4 million were included on Banyan’s unaudited historical condensed consolidated balance sheet as of September 30, 2023, as a component of the accounts payable balance (see corresponding pro forma adjustment entry at Note 3(d)(i), Accounts payable); (2) $3.5 million were accrued on the unaudited historical condensed consolidated balance sheet of Banyan as of September 30, 2023, as a component of the accrued expense balance (refer to Note 3(e), Accrued expenses, for the corresponding pro forma adjusting entry); (3) $3.3 million were for the settlement of the deferred underwriting fees accrued on Banyan’s unaudited historical condensed consolidated balance sheet as of September 30, 2023 (see corresponding pro forma adjusting entry at Note 3(i), Deferred underwriting fees); and (4) the approximate remaining $9.2 million were for the settlement of transaction costs that were incurred by Banyan subsequent to September 30, 2023 (refer to Note 3(q)(vii), Accumulated deficit, the corresponding pro forma adjusting entry).

3(a)(viii)

Reflects the $5.5 million aggregate payments for nonrecurring transaction costs incurred by Pinstripes and settled at the Closing of the Business Combination. The transaction costs primarily represent fees incurred by Pinstripes for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination. Of the $5.5 million of transaction costs, (1) $1.4 million were for the settlement of transaction costs included on Pinstripes’ unaudited historical consolidated balance sheet as of October 15, 2023, as a component of the accounts payable balance (see corresponding pro forma adjustment entries at Note 3(d)(ii), Accounts payable); (2) $0.3 million were for the settlement of transaction costs accrued on the unaudited historical consolidated balance sheet of Pinstripes as of October 15, 2023, as a component of the other current liabilities balance (refer to Note 3(f)(iv), Other current liabilities, for the corresponding pro forma adjusting entry); and (3) the approximate remaining $3.8 million were for the settlement of transaction costs that were incurred by Pinstripes subsequent to October 15, 2023. Refer to Note 3(p)(v), Additional paid-in capital, for the corresponding pro forma adjusting entry.

3(a)(ix)

Represents the $0.4 million release of the funds held in the Trust Account, which was dissolved and liquidated at the Closing of the Business Combination. Refer to Note 3(b)(v), Funds held in the Trust Account, for the corresponding pro forma adjusting entry.

3(b) Funds held in the Trust Account – Represents the reclassification of the funds held in Trust Account that became available at the Closing of the Business Combination after giving effect to the impact of the Extension Amendment and the Redemption Limitation Amendment. The table summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Redemption of Banyan’s Redeemable Class A Common Stock in connection with the Extension Amendment and the Redemption Limitation Amendment	3 (b)(i)	$	(14,103	)
Increase to the funds held in the Trust Account in connection with the Extension Amendment	3 (b)(ii)		53
Net increase to the funds held in the Trust Account in connection with the Closing of the Business Combination	3 (b)(iii)		516
Redemption of Banyan’s Redeemable Class A Common Stock in connection with the Closing of the Business Combination	3 (b)(iv)		(28,544	)
Reclassification of the funds held in the Trust Account at the Closing of the Business Combination	3 (b)(v)		(346	)
Pro Forma Adjustment – Funds held in the Trust Account		$	(42,424	)

3(b)(i) Reflects the $14.1 million aggregate redemption price for the redemption of 1,314,065 shares of Banyan’s Redeemable Class A Common Stock in connection with the Extension Amendment and the Redemption Limited Amendment subsequent to September 30, 2023. The $14.1 million aggregate redemption price was calculated using the redemption price of approximately $10.73 per share (based on the $42.9 million of funds held in the Trust Account at the Extension Amendment and the Redemption Limitation Amendment date of December 21, 2023). See Note 3(k)(i), Banyan’s Redeemable Class A Common Stock, for the corresponding pro forma adjusting entry.

3(b)(ii) Reflects the $0.1 million deposit to the funds held in the Trust Account in connection with the Extension Amendment subsequent to September 30, 2023, calculated at an amount of $0.02 per outstanding share of Banyan’s Redeemable Class A Common Stock (based on the 2,684,622 outstanding shares of Banyan’s Redeemable Class A Common Stock as of December 22, 2023), for the settlement of the Sponsor Holders’ contractual obligation to remit the $0.1 million deposit following the approval of the Extension Amendment. Refer to Note 3(q)(iii), Accumulated deficit, for the corresponding pro forma adjusting entry.

3(b)(iii) Reflects the $0.5 million net increase to the funds held in the Trust Account as of the Closing of the Business Combination. The increase is comprised of interest earned on the funds held in the Trust Account during the period from October 1, 2023 to the Closing of the Business Combination, net of (1) taxes and fees payable thereon and (2) the Sponsor Holders’ $0.1 million deposit to the funds held in the Trust Account. See Note 3(q)(xii), Accumulated deficit, for the corresponding pro forma adjusting entry.

3(b)(iv) Reflects the $28.5 million aggregate redemption price for the redemption of 2,652,419 shares of Banyan’s Redeemable Class A Common Stock in connection with the Closing of the Business Combination. The $28.5 million aggregate redemption price was calculated using the actual redemption price of approximately $10.76 per share (based on the $28.9 million of funds held in the Trust Account at the Closing of the Business Combination). Refer to Note 3(k)(iv), Banyan’s Redeemable Class A Common Stock, for the corresponding pro forma adjusting entry.

3(b)(v) Represents the $0.4 million release of the funds held in the Trust Account, which was dissolved and liquidated at the Closing of the Business Combination. Refer to Note 3(a)(ix), Cash and cash equivalents, for the corresponding pro forma adjusting entry.

3(c) Other long-term assets – Reflects the impact of Pinstripes’ financing arrangements and the Closing of the Business Combination on the pro forma combined other long-term assets balance. The table summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Elimination of Pinstripes’ loan commitment asset associated with Pinstripes’ financing arrangements	3(c)(i)	$	(967	)
Reclassification of Pinstripes’ capitalized transaction costs	3(c)(ii)		(4,126	)
Pro Forma Adjustment – Other long-term assets		$	(5,093	)

3(c)(i)

Reflects the $1.0 million elimination of Pinstripes’ loan commitment asset associated with Pinstripes’ right to additional financing, on amounts received from Pinstripes’ financing arrangements issued subsequent to October 15, 2023. Refer to Note 3(a)(i), Cash and cash equivalents, and Note 3(h)(i), Long-term debt, for the corresponding pro forma adjusting entries.

3(c)(ii)

Reflects the reclassification of Pinstripes’ $4.1 million capitalized transaction costs from classification within the other long-term assets balance to classification as a component of the additional paid-in capital balance at the Closing of the Business Combination in accordance with Staff Accounting Bulletin (“SAB”) Topic 5.A. The capitalized transaction costs primarily represent fees incurred by Pinstripes for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination. Of the total $4.1 million capitalized transaction costs, $2.3 million relate to fees that were accrued on Pinstripes’ unaudited historical consolidated balance sheet as of October 15, 2023, as a component of the accounts payable balance; $0.3 million represent fees accrued on the unaudited historical consolidated balance sheet of Pinstripes as of October 15, 2023, as a component of the other current liabilities balance. The approximate remaining $1.5 million relates to fees incurred and paid by Pinstripes prior to October 16, 2023. See Note 3(p)(vii), Additional paid-in capital, for the corresponding pro forma adjusting entry.

3(d) Accounts payable - Reflects the impact of the Closing of the Business Combination on the pro forma combined accounts payable balance. The table summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Payment of Banyan’s transaction costs	3(d)(i)	$	(365	)
Payment of Pinstripes’ accounts payable, net transaction costs incurred subsequent to October 15, 2023	3(d)(ii)		(462	)
Pro Forma Adjustment – Accounts payable		$	(827	)

3(d)(i)

Reflects the $0.4 million aggregate payments for the settlement of the nonrecurring transaction costs accrued as a component of the accounts payable balance on Banyan’s unaudited historical condensed consolidated balance sheet as of September 30, 2023, at the Closing of the Business Combination. The transaction costs primarily represent legal fees incurred by Banyan in connection with the Closing of the Business Combination. See Note 3(a)(vii), Cash and cash equivalents, for the corresponding pro forma adjusting entry.

3(d)(ii)

Reflects the $1.4 million aggregate payments for the settlement of the nonrecurring transaction costs accrued as a component of the accounts payable balance on Pinstripes’ unaudited historical consolidated balance sheet as of October 15, 2023, at the Closing of the Business Combination, net (1) approximately $0.7 million of transaction costs incurred by Pinstripes subsequent to October 15, 2023 and (2) $0.2 million of fees incurred by Pinstripes subsequent to October 15, 2023 for non-transaction related services. The transaction costs primarily represent fees incurred by Pinstripes for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination. Refer to Note 3(a)(viii), Cash and cash equivalents, Note 3(p)(v), Additional paid-in capital, and Note 3(q)(viii), Accumulated deficit, for the corresponding pro forma adjusting entries.

3(e) Accrued expenses - Represents the $3.5 million aggregate payments for the settlement of the nonrecurring transaction costs accrued as a component of the accrued expense balance on Banyan’s unaudited historical condensed consolidated balance sheet as of September 30, 2023, at the Closing of the Business Combination. The transaction costs primarily represent fees incurred by Banyan for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination. See Note 3(a)(vii), Cash and cash equivalents, for the corresponding pro forma adjusting entry.

3(f) Other current liabilities – Represents the pro forma impact of the Business Combination of New Pinstripes’ other current liabilities balance. The table summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Payments of interest on Pinstripes’ financing arrangements	3(f)(i)	$	(386	)
Exercise of Pinstripes' liability-classified warrants	3(f)(ii)		(2,202	)
Reclassification of Pinstripes’ liability-classified warrants to equity-classification	3(f)(iii)		(1,049	)
Payment of Pinstripes’ transaction costs	3(f)(iv)		(340	)
Accretion of interest on Pinstripes Convertible Notes	3(f)(v)		11
Pro Forma Adjustment – Other current liabilities		$	(3,966	)

3(f)(i)	Reflects the $0.4 million of aggregate interest payments for the settlement of the interest accrued on Pinstripes’ unaudited historical consolidated balance sheet as of October 15, 2023, payable on Pinstripes’ financing arrangements. See Note 3(a)(ii), Cash and cash equivalents, for the corresponding pro forma adjusting entry.
3(f)(ii)	Reflects the $2.2 million derecognition of Pinstripes’ warrant liability upon the exercise of 160,149 shares of Pinstripes’ liability-classified warrants subsequent to October 15, 2023, for the issuance of 160,149 shares of Pinstripes Common Stock. Refer to Note 3(a)(iii), Cash and cash equivalents, Note 3(l)(i), Pinstripes Common Stock, and Note 3(p)(i), Additional paid-in capital, for the corresponding pro forma adjusting entries.
3(f)(iii)	Reflects the $1.0 million reclassification of 76,285 shares of Pinstripes' liability-classified warrants to equity-classification upon the resolution of the warrants’ issuance contingency (as the warrants no longer met the liability-classification requirements and meet all other conditions for equity-classification under ASC 815-40) subsequent to October 15, 2023. See Note 3(p)(vi), Additional paid-in capital, for the corresponding pro forma entry.
3(f)(iv)	Reflects the $0.3 million aggregate payments for the settlement of the nonrecurring transaction costs accrued as a component of the other current liabilities balance on Pinstripes’ unaudited historical consolidated balance sheet as of October 15, 2023, at the Closing of the Business Combination. The transaction costs primarily represent fees incurred by Pinstripes for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination. Refer to Note 3(a)(viii), Cash and cash equivalents, for the corresponding pro forma adjusting entry.
3(f)(v)	Reflects the accretion of interest on Pinstripes Convertible Notes during the period from October 16, 2023 to the Closing of the Business Combination, which were converted to shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination. See Note 3(q)(ix), Accumulated deficit, for the corresponding pro forma adjusting entry.

3(g) Promissory notes, related parties – Reflects the impact of Banyan’s promissory notes and the Closing of the Business Combination on the pro forma combined promissory notes, related parties, balance. The table summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Proceeds from Banyan’s promissory notes	3(g)(i)	$	10
Payment of Banyan’s outstanding promissory notes	3(g)(ii)		(516	)
Pro Forma Adjustment – Promissory notes, related parties		$	(506	)

3(g)(i)	Reflects the proceeds received from Banyan’s promissory notes issued to related parties subsequent to September 30, 2023. Refer to Note 3(a)(iv), Cash and cash equivalents, for the corresponding pro forma adjusting entry.
3(g)(ii)	Reflects the $0.5 million payment for the settlement of the outstanding promissory notes due to related parties, at the Closing of the Business Combination. See Note 3(a)(vi), Cash and cash equivalents, for the corresponding pro forma adjusting entry.

3(h) Long-term debt – Reflects the impact of Pinstripes’ financing arrangements and the Closing of the Business Combination on the pro forma combined long-term debt balance. The table summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Proceeds from Pinstripes’ financing arrangements, net of debt discounts and debt issuance costs	3(h)(i)	$	8,733
Proceeds from the Tranche 1 Loan closed in connection with the Closing of the Business Combination, net of debt discount	3(h)(ii)		32,669
Conversion of Pinstripes Convertible Notes into shares of Pinstripes Common Stock	3(h)(iii)		(5,000	)
Pro Forma Adjustment – Long-term debt		$	36,402

3(h)(i)	Reflects the $10.0 million of proceeds received from Pinstripes’ financing arrangements issued subsequent to October 15, 2023, net of debt financing costs (1) the $1.0 million debt discount relating to the elimination of Pinstripes’ loan commitment asset associated the amounts received from Pinstripes’ financing arrangements issued subsequent to October 15, 2023, and (2) the $0.3 million aggregate payments for debt issuance costs. Refer to Note 3(a)(i), Cash and cash equivalents, and Note 3(c)(i), Other long-term assets, for the corresponding pro forma adjusting entries.
3(h)(ii)	Reflects the $50.0 million of proceeds received from the Tranche 1 Loan closed in connection with the Closing of the Business Combination., net of the estimated $17.3 million debt discount associated with the allocation of $17.3 million of the total $50.0 million proceeds to the New Pinstripes’ equity-classified warrants issued simultaneously with, and in contemplation of, the Tranche 1 Loan. See Note 3(a)(v), Cash and cash equivalents, and Note 3(p)(xv), Additional paid-in capital, for the corresponding pro forma adjusting entries.
3(h)(iii)	Reflects the conversion of the outstanding $5.0 million Pinstripes Convertible Notes into 500,000 shares of Pinstripes Common Stock immediately prior to the Closing of the Business Combination. Refer to Note 3(l)(iii), Pinstripes Common Stock, and Note 3(p)(vix), Additional paid-in capital, for the corresponding pro forma adjusting entries.

3(i) Deferred underwriting fees– Reflects the settlement of $3.3 million of Banyan’s deferred underwriting fees payable at the Closing of the Business Combination from the funds held in Trust Account, after taking into effect the reduction of $0.3 million reduction of the deferred underwriting fees subsequent to September 30, 2023. Refer to Note 3(a)(vii), Cash and cash equivalents, and Note 3(q)(ii), Accumulated deficit, for the respective corresponding pro forma adjusting entries.

3(j) Pinstripes’ Redeemable Convertible Preferred Stock – Represents the impact of the accretion of cumulative unpaid dividends on Pinstripes’ Series I Redeemable Convertible Preferred Stock and the Closing of the Business Combination on the pro forma combined Pinstripes’ Redeemable Convertible Preferred Stock balance. The table summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Accretion of cumulative unpaid dividends on Pinstripes’ Series I Redeemable Convertible Preferred Stock	3(j)(i)		350
Conversion of Pinstripes’ Redeemable Convertible Preferred Stock into shares of Pinstripes Common Stock	3(j)(ii)		(75,612	)
Pro Forma Adjustment – Pinstripes’ Redeemable Convertible Preferred Stock		$	(75,262	)

3(j)(i)

Reflects the $0.3 million accretion of cumulative unpaid dividends on Pinstripes’ Series I Redeemable Convertible Preferred Stock during the period from October 16, 2023 to the Closing of the Business Combination. The $0.3 million of cumulative unpaid dividends are payable in 13,988 shares of Pinstripes’ Series I Redeemable Convertible Preferred Stock. Refer to Note 3(q)(x), Accumulated deficit, for the corresponding pro forma adjusting entry.

3(j)(ii)

Represents the $75.6 million conversion of the outstanding 11,089,698 shares of Pinstripes’ Redeemable Convertible Preferred Stock into 11,089,698 shares of Pinstripes Common Stock (including the 850,648 shares converted from Pinstripes’ Series I Redeemable Convertible Preferred Stock, the 21,114 shares converted from the cumulative unpaid dividends accrued thereon as of October 15, 2023, and the 13,988 shares converted relating to the accretion of cumulative unpaid dividends on Pinstripes’ Series I Redeemable Convertible Preferred Stock during the period from October 15, 2023) immediately prior to the Closing of the Business Combination. See Note 3(l)(iv), Pinstripes Common Stock, and Note 3(p)(x), Additional paid-in capital, for the corresponding adjusting pro forma entries.

3(k) Banyan’s Redeemable Class A Common Stock – Represents the impact of the Extension Amendment, the Redemption Limitation Amendment, and the Closing of the Business Combination on the pro forma combined Banyan’s Redeemable Class A Common Stock balance. The table summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Redemption of Banyan's Redeemable Class A Common Stock in connection with the Extension Amendment and the Redemption Limitation Amendment	3(k)(i)	$	(14,103	)
Remeasurement of Banyan’s Redeemable Class A Common Stock to redemption value in connection with the Extension Amendment	3(k)(ii)		53
Remeasurement of Banyan’s Redeemable Class A Common Stock to redemption value in connection with the Closing of the Business Combination	3(k)(iii)		516
Redemption of Banyan's Redeemable Class A Common Stock in connection with the Closing of the Business Combination	3(k)(iv)		(28,544	)
Conversion of Banyan’s Redeemable Class A Common Stock into shares of New Pinstripes Class A Common Stock	3(k)(v)		(346	)
Pro Forma Adjustment – Banyan’s Redeemable Class A Common Stock		$	(42,424	)

3(k)(i)	Reflects the $14.1 million aggregate redemption price for the redemption of 1,314,065 shares of Banyan’s Redeemable Class A Common Stock in connection with the Extension Amendment and the Redemption Limited Amendment subsequent to September 30, 2023. The $14.1 million aggregate redemption price was calculated using the redemption price of approximately $10.73 per share (based on the $42.9 million of funds held in the Trust Account at the Extension Amendment and the Redemption Limitation Amendment date of December 21, 2023). See Note 3(b)(i), Funds held in the Trust Account, for the corresponding pro forma adjusting entry.
3(k)(ii)	Reflects the $0.1 million remeasurement of Banyan’s Redeemable Class A Common Stock to redemption value in connection with the $0.1 million deposit to the funds held in the Trust Account subsequent to September 30, 2023, calculated at an amount of $0.02 per outstanding share of Banyan’s Redeemable Class A Common Stock (based on the 2,684,622 outstanding shares of Banyan’s Redeemable Class A Common Stock as of December 22, 2023), for the settlement of the Sponsor Holders’ contractual obligation to remit the $0.1 million deposit following the approval of the Extension Amendment. Refer to Note 3(q)(iv), Accumulated deficit, for the corresponding pro forma adjusting entry.
3(k)(iii)	Reflects the $0.5 million remeasurement of Banyan’s Redeemable Class A Common Stock to redemption value as of the Closing of the Business Combination, reflective of the net increase to the funds held in the Trust Account. The increase resulted from the interest earned on the funds held in the Trust Account during the period from October 1, 2023 to the Closing of the Business Combination, net of (1) taxes and fees payable thereon and (2) the Sponsor Holders’ $0.1 million deposit to the funds held in the Trust Account. Refer to Note 3(q)(xiii), Accumulated deficit, for the corresponding pro forma adjusting entry.

3(k)(iv)

Reflects the $28.5 million aggregate redemption price for the redemption of 2,652,419 shares of Banyan’s Redeemable Class A Common Stock in connection with the Closing of the Business Combination. The $28.5 million aggregate redemption price was calculated using the actual redemption price of approximately $10.76 per share (based on the $28.9 million of funds held in the Trust Account at the Closing of the Business Combination). See Note 3(b)(iv), Funds held in the Trust Account, for the corresponding pro forma adjusting entry.

3(k)(v)

Reflects the $0.4 million conversion of the outstanding 32,203 shares of Banyan’s Redeemable Class A Common Stock into 32,303 shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination. Refer to Note 3(m)(i), New Pinstripes Class A Common Stock, and Note 3(p)(xii), Additional paid-in capital, for the corresponding pro forma adjusting entries.

3(l) Pinstripes Common Stock – Represents the impact of the exercise of Pinstripes’ liability-classified warrants, the exercise of Pinstripes’ options, and the Closing of the Business Combination on the pro forma combined Pinstripes Common Stock balance. The table summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Exercise of Pinstripes’ liability-classified warrants	3(l)(i)	$	2
Exercise of Pinstripes’ options	3(l)(ii)		0
Conversion of Pinstripes Convertible Notes into shares of Pinstripes Common Stock	3(l)(iii)		5
Conversion of Pinstripes’ Redeemable Convertible Preferred Stock into shares of Pinstripes Common Stock	3(l)(iv)		111
Conversion of Pinstripes’ equity-classified warrants into shares of Pinstripes Common Stock	3(l)(v)		4
Conversion of Pinstripes Common Stock to shares of New Pinstripes Class A Common Stock	3(l)(vi)		(184	)
Pro Forma Adjustment – Pinstripes Common Stock		$	(62	)

3(l)(i)	Reflects the exercise of 160,149 shares of Pinstripes’ liability-classified warrants subsequent to October 15, 2023, for the issuance of 160,149 shares of Pinstripes Common Stock at a par value of $0.01 per share resulting in an aggregate par value of $1,601. Refer to Note 3(a)(iii), Cash and cash equivalents, Note 3(f)(ii), Other current liabilities, and Note 3(p)(i), Additional paid-in capital, for the corresponding pro forma adjusting entries.
3(l)(ii)	Reflects the cashless exercise of Pinstripes’ options subsequent to October 15, 2023, for the issuance of 24,517 shares of Pinstripes Common Stock at a par value of $0.01 per share resulting in an aggregate par value of $245. See Note 3(p)(xi), Additional paid-in capital, for the corresponding pro forma adjusting entry.
3(l)(iii)	Reflects the conversion of the outstanding Pinstripes Convertible Notes into 500,000 shares of Pinstripes Common Stock at a par value of $0.01 per share immediately prior to the Closing of the Business Combination, resulting in an aggregate par value of $5,000. Refer to Note 3(h)(iii), Long-term debt, and Note 3(p)(xiv), Additional paid-in capital, for the corresponding pro forma adjusting entries.
3(l)(iv)	Represents the conversion of the outstanding 11,089,698 shares of Pinstripes’ Redeemable Convertible Preferred Stock into 11,089,698 shares of Pinstripes Common Stock at a par value of $0.01 per share immediately prior to the Closing of the Business Combination, resulting in an aggregate par value of $110,897. See Note 3(j)(ii), Pinstripes’ Redeemable Convertible Preferred Stock, and Note 3(p)(x), Additional paid-in capital, for the corresponding adjusting pro forma entries.
3(l)(v)	Reflects the conversion of the outstanding 354,426 shares of Pinstripes’ equity-classified warrants into 354,436 shares of Pinstripes Common Stock at a par value of $0.01 per share immediately prior to the Closing of the Business Combination, resulting in an aggregate par value of $3,544. Refer to Note 3(p)(xi), Additional paid-in capital, for the corresponding pro forma adjusting entry.
3(l)(vi)	Reflects the conversion of the outstanding 18,307,759 shares of Pinstripes Common Stock into 34,420,833 shares of New Pinstripes A Common Stock at the Closing of the Business Combination, as consideration for the reverse recapitalization. Refer to Note 3(m)(ii), New Pinstripes Class A Common Stock, and Note 3(p)(xiii), Additional paid-in capital, for the corresponding pro forma adjusting entries.

3(m) New Pinstripes Class A Common Stock - Represents the impact of the Business Combination on the pro forma combined New Pinstripes Class A Common Stock balance. The table below summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Conversion of Banyan’s Redeemable Class A Common Stock into shares of New Pinstripes Class A Common Stock	3(m)(i)	$	0
Conversion of Pinstripes Common Stock into shares of New Pinstripes Class A Common Stock	3(m)(ii)		3
Conversion of Banyan Class A Common Stock into shares of New Pinstripes Class A Common Stock	3(m)(iii)		0
Conversion of Banyan Class B Common Stock into shares of New Pinstripes Class A Common Stock	3(m)(iv)		1
Issuance of New Pinstripes Class A Common Stock as payment for Pinstripes’ transaction costs	3(m)(v)		0
Pro Forma Adjustment – New Pinstripes Class A Common Stock		$	4

3(m)(i)	Reflects the conversion of the outstanding 32,203 shares of Banyan’s Redeemable Class A Common Stock into 32,203 shares of New Pinstripes Class A Common Stock at a par value of $0.001 per share upon the Closing of the Business Combination, resulting in an aggregate par value of $3. Refer to Note 3(k)(v), Banyan’s Redeemable Class A Common Stock, and Note 3(p)(xii), Additional paid-in capital, for the corresponding pro forma adjusting entries.
3(m)(ii)	Reflects the conversion of the outstanding 18,307,759 shares of Pinstripes Common Stock into 34,420,833 shares of New Pinstripes Class A Common Stock at a par value of $0.001 per share upon the Closing of the Business Combination as consideration for the reverse recapitalization, resulting in an aggregate par value of $3,442. See Note 3(l)(vi), Pinstripes Common Stock, and Note 3(p)(xiii), Additional paid-in capital, for the corresponding pro forma adjusting entries.
3(m)(iii)	Reflects the conversion of the outstanding 2,000,000 shares of Banyan Class A Common Stock into 2,000,000 shares of New Pinstripes Class A Common Stock at a par value of $0.001 per share upon the Closing of at Business Combination, resulting in an aggregate par value of $200. Refer to Note 3(n), Banyan Class A Common Stock, for the corresponding pro forma adjusting entry.
3(m)(iv)	Reflects the conversion of the outstanding 5,245,000 shares of Banyan Class B Common Stock into 5,245,000 shares of New Pinstripes Class A Common Stock at a par value of $0.001 per share upon the Closing of the Business Combination, resulting in an aggregate par value of $525. See Note 3(o), Banyan Class B Common Stock, for corresponding pro forma adjusting entry.
3(m)(v)	Reflects the 50,000 shares of New Pinstripes Class A Common Stock at a par value of $0.001 per share, being issued within five (5) business days after the Closing of the Business Combination for the settlement of $0.5 million of Pinstripes’ incurred transaction costs resulting in an aggregate par value of $5. The $0.5 million transaction costs primarily represent fees incurred by Pinstripes for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination. Refer to Note 3(p)(xvi), Additional paid-in capital, for the corresponding pro forma adjusting entry.

3(n) Banyan Class A Common Stock - Reflects the conversion of 5,415,000 shares of Banyan Class A Common Stock into 5,415,000 shares of New Pinstripes Class A Common Stock, at a par value of $0.0001 per share, and the conversion of 1,485,000 shares of Banyan Class A Common Stock into 915,000 shares of New Pinstripes Class B-1 Common Stock, at a par value of $0.0001 per share, and 570,000 shares of New Pinstripes Class B-2 Common Stock, at a par value of $0.0001 per share, upon the Closing of the Business Combination, after giving effect to the conversion of 4,900,000 shares of Banyan Class B Common Stock to Banyan Class A Common Stock in connection with the Extension Amendment. Refer to Note 3(m)(iii), New Pinstripes Class A Common Stock, for the corresponding pro forma adjusting entry.

3(o) Banyan Class B Common Stock – Reflects the conversion of the 345,000 outstanding shares of Banyan Class B Common Stock into 345,000 shares of New Pinstripes Class B-2 Common Stock, at a par value of $0.0001 per share, upon the Closing of the Business Combination, after giving effect to the conversion of 4,900,000 shares of Banyan Class B Common Stock to Banyan Class A Common Stock in connection with the Extension Amendment. See Note 3(m)(iv), New Pinstripes Class A Common Stock, for the corresponding pro forma adjusting entry.

3(p) Additional paid-in capital – Represents the impact of Pinstripes’ liability-classified warrants, the issuance of Pinstripes’ equity-classified warrants, the exercise and forfeitures of Pinstripes’ options, and the Closing of the Business Combination on the pro forma combined additional paid-in capital balance. The table below summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Exercise of Pinstripes' liability-classified warrants	3(p)(i)	$	2,201
Issuance of Pinstripes’ equity-classified warrants	3(p)(ii)		22
Exercise of Pinstripes' options	3(p)(iii)		0
Forfeiture of Pinstripes’ options	3(p)(iv)		(17	)
Transaction costs incurred by Pinstripes’ subsequent to October 15, 2023	3(p)(v)		(4,512	)
Reclassification of Pinstripes’ liability-classified warrants to equity-classification	3(p)(vi)		1,049
Reclassification of Pinstripes’ capitalized transaction costs	3(p)(vii)		(4,126	)
Accelerated vesting of Pinstripes’ options	3(p)(viii)		30
Conversion of Pinstripes Convertible Notes into shares of Pinstripes Common Stock	3(p)(ix)		4,995
Conversion of Pinstripes’ Redeemable Convertible Preferred Stock into shares of Pinstripes Common Stock	3(p)(x)		75,501
Conversion of Pinstripes’ equity-classified warrants into shares of Pinstripes Common Stock	3(p)(xi)		(4	)
Conversion of Banyan’s Redeemable Class A Common Stock into shares of New Pinstripes Class A Common Stock	3(p)(xii)		346
Conversion of Pinstripes Common Stock into shares of New Pinstripes Class A Common Stock	3(p)(xiii)		181
Reclassification of Banyan's accumulated deficit to additional paid-in capital (elimination)	3(p)(xiv)		(23,118	)
Issuance of New Pinstripes’ equity-classified warrants associated with the Tranche 1 Loan	3(p)(xv)		17,331
Issuance of New Pinstripes Class A Common Stock as payment for Pinstripes’ transaction costs	3(p)(xvi)		0
Pro Forma Adjustment –Additional paid-in capital		$	69,879

3(p)(i)	Reflects the exercise of 160,149 shares of Pinstripes’ liability-classified warrants in exchange for the issuance of 160,149 shares of Pinstripes Common Stock subsequent to October 15, 2023, resulting in a $2.2 million adjustment to additional paid-in capital. Refer to Note 3(a)(iii), Cash and cash equivalents, Note 3(f)(ii), Other current liabilities, and Note 3(l)(i), Pinstripes Common Stock, for the corresponding pro forma adjusting entries.
3(p)(ii)	Reflects the issuance of 18,070 shares of Pinstripes’ equity-classified warrants (exercisable for 18,070 shares of Pinstripes Common Stock) subsequent to October 15, 2023. See Note 3(q)(v), Accumulated deficit, for the corresponding pro forma adjusting entry.
3(p)(iii)	Reflects the cashless exercise of 24,517 Pinstripes’ options in exchange for the issuance of 24,517 shares of Pinstripes Common Stock subsequent to October 15, 2023. Refer to Note 3(l)(ii), Pinstripes Common Stock, for the corresponding pro forma adjusting entry.
3(p)(iv)	Reflects the impact of the reversal of Pinstripes’ previously recognized compensation cost on the additional paid-in capital balance, resulting from the forfeiture of 147,742 Pinstripes’ options subsequent to October 15, 2023. See Note 3(q)(vi), Accumulated deficit, for the corresponding pro forma adjusting entry.
3(p)(v)	Reflects the $4.5 million aggregate transaction costs incurred by Pinstripes subsequent to October 15, 2023. The transaction costs primarily represent fees incurred by Pinstripes for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination. $3.8 million of the total $4.5 million aggregate transaction costs were paid by Pinstripes at the Closing of the Business Combination while the remaining $0.7 million of the total $4.5 million aggregate transaction costs are included as a component of the pro forma combined accounts payable balance. Refer to Note 3(a)(viii), Cash and cash equivalents, and Note 3(d)(ii), Accounts payable, for the corresponding pro forma adjusting entries.
3(p)(vi)	Reflects the $1.0 million reclassification of 76,285 shares of Pinstripes’ liability-classified warrants to equity-classification upon the resolution of the warrants’ issuance contingency (as the warrants no longer met the liability-classification requirements and meet all other conditions for equity-classification under ASC 815-40) subsequent to October 15, 2023. See Note 3(f)(iii), Other current liabilities, for the corresponding pro forma entry.
3(p)(vii)	Reflects the reclassification of Pinstripes’ $4.1 million capitalized transaction costs from classification within the other long-term assets balance to classification as a component of the additional paid-in capital balance at the Closing of the Business Combination in accordance with SAB Topic 5.A. The capitalized transaction costs primarily represent fees incurred by Pinstripes for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination. $2.3 million of the total $4.1 million capitalized transaction costs relate to the fees included on Pinstripes’ unaudited historical consolidated balance sheet as of October 15, 2023, as a component of accounts payable. $0.3 million of the total $4.1 million capitalized transaction costs represent the fees accrued on the unaudited historical consolidated balance sheet of Pinstripes as of October 15, 2023. The approximate remaining $1.5 million of the total $4.1 million capitalized transaction costs relates to fees incurred and paid by Pinstripes prior to October 16, 2023. Refer to Note 3(c)(ii), Other long-term assets, for the corresponding pro forma adjusting entry.

3(p)(viii)	Reflects the accelerated vesting of certain Pinstripes’ options with the historical share-based compensation plan of Pinstripes immediately prior to the Closing of the Business Combination. These Pinstripes’ options fully vested at the Closing of the Business Combination, a qualifying event. See Note 3(q)(xi), Accumulated deficit, for the corresponding pro forma adjusting entry.
3(p)(ix)	Reflects the conversion of the outstanding $5.0 million Pinstripes Convertible Notes into 500,000 shares of Pinstripes Common Stock immediately prior to the Closing of the Business Combination, resulting in a $5.0 million reclassification to additional paid-in capital. Refer to Note 3(h)(iii), Long-term debt, and Note 3(l)(iii), Pinstripes Common Stock, for the corresponding pro forma adjusting entries.
3(p)(x)	Represents the conversion of the outstanding 11,089,698 shares of Pinstripes’ Redeemable Convertible Preferred Stock into 11,089,698 shares of Pinstripes Common Stock (including the 850,648 shares converted from Pinstripes’ Series I Redeemable Convertible Preferred Stock, the 21,114 shares converted from the cumulative unpaid dividends accrued thereon as of October 15, 2023, and the 13,988 shares converted relating to the accretion of cumulative unpaid dividends on Pinstripes’ Series I Redeemable Convertible Preferred Stock during the period from October 16, 2023 to the Closing of the Business Combination) immediately prior to the Closing of the Business Combination, resulting in a $75.5 million reclassification to additional paid-in capital. See Note 3(j)(ii), Pinstripes’ Redeemable Convertible Preferred Stock, and Note 3(l)(iv), Pinstripes Common Stock, for the corresponding adjusting pro forma entries.
3(p)(xi)	Reflects the conversion of the outstanding 354,436 shares of Pinstripes’ equity-classified warrants into 354,436 shares of Pinstripes Common Stock immediately prior to the Closing of the Business Combination, resulting in a reclassification to additional paid-in capital. Refer to Note 3(l)(v), Pinstripes Common Stock, for the corresponding pro forma adjusting entry.
3(p)(xii)	Reflects the conversion of the outstanding 32,203 shares of Banyan’s Redeemable Class A Common Stock into 32,203 shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination, resulting in a $0.4 million reclassification to additional paid-in capital See Note 3(k)(v), Banyan’s Redeemable Class A Common Stock, and Note 3(m)(i), New Pinstripes Class A Common Stock, for the corresponding pro forma adjusting entries.
3(p)(xiii)	Reflects the conversion of the outstanding 18,307,759 shares of Pinstripes Common Stock into 34,420,833 shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination as consideration for the reverse recapitalization, resulting in the reclassification of $0.2 million to additional paid-in capital. Refer to Note 3(l)(vi), Pinstripes Common Stock, and Note 3(m)(ii), New Pinstripes Class A Common Stock, for the corresponding pro forma adjusting entries.
3(p)(xiv)	Reflects the $23.1 million elimination of Banyan’s historical accumulated deficit as part of the reverse recapitalization at the Closing of the Business Combination. See Note 3(q)(xiv), Accumulated deficit, for the corresponding pro forma adjusting entry.
3(p)(xv)	Reflects the $17.3 million of the total $50.0 million of proceeds received from the Tranche 1 Loan allocated to the issuance of 2,500,000 shares of New Pinstripes’ equity-classified warrants (exercisable for 2,500,000 shares of New Pinstripes Class A Common Stock) issued simultaneously with, and in contemplation of, the Tranche 1 Loan, at the Closing of the Business Combination. The Tranche 1 Loan was closed in connection with the Closing of the Business Combination. Refer to Note 3(a)(v), Cash and cash equivalents, and Note 3(h)(ii), Long-term debt, for the corresponding pro forma adjusting entries.
3(p)(xvi)	Reflects the 50,000 shares of New Pinstripes Class A Common Stock being issued within five (5) business days after the Closing of the Business Combination for the settlement of $0.5 million of Pinstripes’ incurred transaction costs. The $0.5 million of transaction costs primarily represent the fees incurred by Pinstripes for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination. See Note 3(m)(v), New Pinstripes Class A Common Stock, for the corresponding pro forma adjusting entry.

3(q) Accumulated deficit – Represents the impact of Pinstripes’ financing arrangements, the reduction of the deferred financing fees, the Extension Amendment, issuance of Pinstripes’ equity-classified warrants, the forfeiture of Pinstripes’ options, and the Closing of the Business Combination on the pro forma combined accumulated deficit balance. The table below reflects the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Payments of interest on Pinstripes’ financing arrangements	3(q)(i)	$	(1,175	)
Reduction of deferred underwriting fees	3(q)(ii)		362
Increase to the funds held in the Trust Account in connection with the Extension Amendment	3(q)(iii)		53
Remeasurement of Banyan’s Redeemable Class A Common Stock to redemption value in connection with the Extension Amendment	3(q)(iv)		(53	)
Issuance of Pinstripes’ equity-classified warrants	3(q)(v)		(22	)
Forfeiture of Pinstripes’ options	3(q)(vi)		17
Payment of Banyan’s transaction costs	3(q)(vii)		(9,214	)
Costs incurred by Pinstripes’ subsequent to October 15, 2023	3(q)(viii)		(180	)
Accretion of interest on Pinstripes Convertible Notes	3(q)(ix)		(11	)
Accretion of cumulative unpaid dividends on Pinstripes’ Series I Redeemable Convertible Preferred Stock	3(q)(x)		(350	)
Accelerated vesting of Pinstripes’ options	3(q)(xi)		(30	)
Net increase to the funds held in the Trust Account in connection with the Closing of the Business Combination	3(q)(xii)		516
Remeasurement of Banyan’s Redeemable Class A Common Stock to redemption value in connection with the Closing of the Business Combination	3(q)(xiii)		(516	)
Reclassification of Banyan’s accumulated deficit to additional paid-in capital (elimination)	3(q)(xiv)		23,118
Pro Forma Adjustment – Accumulated deficit		$	12,515

3(q)(i)	Reflects the $1.2 million of aggregate interest payments on Pinstripes' financing arrangements subsequent to October 15, 2023. Pinstripes’ financing arrangements. Refer to Note 3(a)(ii), Cash and cash equivalents, for the corresponding pro forma adjusting entry.
3(q)(ii)	Reflects the $0.3 million reduction of the deferred underwriting fees accrued on Banyan’s unaudited historical condensed consolidated balance sheet as of September 30, 2023 subsequent to September 30, 2023. See Note 3(i), Deferred underwriting fees, for the corresponding pro forma adjusting entry.
3(q)(iii)	Reflects the $0.1 million deposit to the funds held in the Trust Account in connection with the Extension Amendment subsequent to September 30, 2023, calculated at an amount of $0.02 per outstanding share of Banyan’s Redeemable Class A Common Stock (based on the 2,684,622 outstanding shares of Banyan’s Redeemable Class A Common Stock as of December 22, 2023), for the settlement of the Sponsor Holders’ contractual obligation to remit the $0.1 million deposit following the approval of the Extension Amendment. Refer to Note 3(b)(ii), Funds held in the Trust Account, for the corresponding pro forma adjusting entry.
3(q)(iv)	Reflects the $0.1 million remeasurement of Banyan’s Redeemable Class A Common Stock to redemption value in connection with the $0.1 million deposit to the funds held in the Trust Account subsequent to September 30, 2023, calculated at an amount of $0.02 per outstanding share of Banyan’s Redeemable Class A Common Stock (based on the 2,684,622 outstanding shares of Banyan’s Redeemable Class A Common Stock as of December 22, 2023), for the settlement of the Sponsor Holders’ contractual obligation to remit the $0.1 million deposit following the approval of the Extension Amendment. See Note 3(k)(ii), Banyan’s Redeemable Class A Common Stock, for the corresponding pro forma adjusting entry.
3(q)(v)	Reflects the issuance of 18,070 shares of Pinstripes’ equity-classified warrants (exercisable for 18,070 shares of Pinstripes Common Stock) subsequent to October 15, 2023. Refer to Note 3(p)(ii), Additional paid-in capital, for the corresponding pro forma adjusting entry.
3(q)(vi)	Reflects the impact of the reversal of Pinstripes’ previously recognized compensation cost on the additional paid-in capital balance, resulting from the forfeiture of 147,742 Pinstripes’ options subsequent to October 15, 2023. See Note 3(p)(iv), Additional paid-in capital, for the corresponding pro forma adjusting entry.
3(q)(vii)	Reflects the $9.2 million aggregate payments of nonrecurring transaction costs incurred by Banyan and settled at the Closing of the Business Combination. The transaction costs primarily represent fees incurred by Banyan for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination. These costs are not reflected in the unaudited pro forma condensed combined statement of operations as they represent costs expected to be incurred and recognized by Banyan, not Pinstripes (e.g., the accounting acquirer for financial reporting purposes). Refer to Note 3(a)(vii), Cash and cash equivalents, for the corresponding pro forma adjusting entry.
3(q)(viii)	Reflects the $0.2 million aggrege costs incurred by Pinstripes subsequent to October 15, 2023 not related to the Closing of the Business Combination. See Note 3(d)(ii), Accounts payable, for the corresponding pro forma adjusting entry.
3(q)(ix)	Reflects the accretion of interest on Pinstripes Convertible Notes during the period from October 16, 2023 to the Closing of the Business Combination, which were converted to shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination. Refer to Note 3(f)(v), Other current liabilities, for the corresponding pro forma adjusting entry.

3(q)(x)	Reflects the $0.3 million accretion of cumulative unpaid dividends on Pinstripes’ Series I Redeemable Convertible Preferred Stock during the period from October 16, 2023 to the Closing of the Business Combination, payable in 13,988 shares of Pinstripes’ Series I Redeemable Convertible Preferred Stock. See Note 3(j)(i), Pinstripes’ Redeemable Convertible Preferred Stock, for the corresponding pro forma adjusting entry.
3(q)(xi)	Reflects the accelerated vesting of certain Pinstripes’ options with the historical share-based compensation plan of Pinstripes immediately prior to the Closing of the Business Combination. These Pinstripes’ options fully vested at the Closing of the Business Combination, a qualifying event. Refer to Note 3(p)(viii), Additional paid-in capital, for the corresponding pro forma adjusting entry.
3(q)(xii)	Reflects the $0.5 million net increase to the funds held in the Trust Account as of the Closing of the Business Combination. The increase is comprised of interest earned on the funds held in the Trust Account during the period from October 1, 2023 to the Closing of the Business Combination, net of (1) taxes and fees payable thereon and (2) the Sponsor Holders’ $0.1 million deposit to the funds held in the Trust Account. See Note 3(b)(iii), Funds held in the Trust Account, for the corresponding pro forma adjusting entry.
3(q)(xiii)	Reflects the $0.5 million remeasurement of Banyan’s Redeemable Class A Common Stock to redemption value at the Closing of the Business Combination reflective of the net increase to the funds held in the Trust Account. The increase resulted from the interest earned on the funds held in the Trust Account during the period from October 1, 2023 to the Closing of the Business Combination, net of (1) taxes and fees payable thereon and (2) the Sponsor Holders’ $0.1 million deposit to the funds held in the Trust Account. Refer to Note 3(k)(iii), Banyan’s Redeemable Class A Common Stock, for the corresponding pro forma adjusting entry.
3(q)(xiv)	Reflects the $23.1 million elimination of Banyan's historical accumulated deficit as part of the reverse recapitalization at the Closing of the Business Combination. See Note 3(p)(xiv), Additional paid-in capital for the corresponding pro forma adjusting entry.

Note 4 – Adjustments to the Unaudited Pro Forma Condensed Combined Statement of Operations for the Fiscal Year Ended April 30, 2023

Refer to the items below for a reconciliation of the pro forma adjustments reflected in the unaudited pro forma condensed combined statement of operations for the fiscal year ended April 30, 2023:

4(a) Recognition of share-based payment expense - Reflects the stock compensation expense related to the accelerated vesting of certain Pinstripes’ options pursuant to the terms of the historical share-based compensation plan on Pinstripes. These Pinstripes Option awards fully vested at the Closing of the Business Combination. The accelerated vesting adjustment is considered to be a one-time charge and is not expected to recur.

4(b) Elimination of interest income - Represents the $7.4 million elimination of Banyan’s historical interest income earned on the funds held in the Trust Account, which was dissolved and liquidated at the Closing of the Business Combination.

4(c) Interest expense - Represents the impact of Pinstripes’ financing arrangements and the Closing of the Business Combination on the pro forma combined interest expense for the fiscal year ended April 30, 2023. The table below summarizes the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Elimination of historical interest expense	4(c)(i)	$	406
Accretion of interest on Pinstripes’ financing arrangements issued subsequent to April 30, 2023	4(c)(ii)		(3,138	)
Accretion of interest on the Tranche 1 Loan closed subsequent to April 30, 2023, in connection with the Closing of the Business Combination	4(c)(iii)		(15,262	)
Pro Forma Adjustment – Interest expense		$	(17,994	)

4(c)(i)

Reflects the $0.4 million elimination of historical interest expense on Pinstripes Convertible Notes, which were converted to shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination.

4(c)(ii)

Represents the recognition of interest expense in the amount of $3.1 million including the amortization of debt issuance costs on Pinstripes' financing arrangements issued subsequent to April 30, 2023 in New Pinstripes’ unaudited pro form consolidated statement of operations for the twelve months ended April 30, 2023 giving effect to the Business Combination, had the Business Combination occurred on April 25, 2022.

4(c)(iii) Represents the recognition of interest expense in the amount of $15.3 million including the amortization of debt issuance costs on the Tranche 1 Loan closed in connection with the Closing of the Business Combination in New Pinstripes’ unaudited pro form consolidated statement of operations for the twelve months ended April 30, 2023 giving effect to the Business Combination, had the Business Combination occurred on April 25, 2022.

4(d) Elimination of the unrealized loss on funds held in the Trust Account - Represents the elimination of the historical unrealized loss on the funds held in the Trust Account, which was dissolved and liquidated at the Closing of the Business Combination.

Note 5 – Adjustments to the Unaudited Pro Forma Condensed Combined Statement of Operations for the Twenty-Four Weeks Ended October 15, 2023

Refer to the items below for a reconciliation of the pro forma adjustments reflected in the unaudited pro forma condensed combined statement of operations for the twenty-four weeks ended October 15, 2023:

5(a) Elimination of interest income - Represents the $1.7 million elimination of Banyan’s historical interest income earned on the funds held in the Trust Account, which was dissolved and liquidated at the Closing of the Business Combination.

5(b) Interest expense - Represents the impact of Pinstripes financing arrangements and the Closing of the Business Combination on the pro forma combined interest expense for the twenty-four weeks ended October 15, 2023. The table below summaries the pro forma adjustments as follows:

Description	Note	Amount
(Amounts in thousands)
Elimination of historical interest expense	5(b)(i)	$	186
Accretion of interest on Pinstripes’ financing arrangements issued subsequent to October 15, 2023	5(b)(ii)		(897	)
Accretion of interest on the Tranche 1 Loan closed subsequent to October 15, 2023, in connection with the Closing of the Business Combination	5(b)(iii)		(7,879	)
Pro Forma Adjustment – Interest expense		$	(8,590	)

5(b)(i)	Reflect the $0.2 million elimination of historical interest expense on Pinstripes Convertible Notes, which were converted to shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination.
5(b)(ii)	Represents the recognition of interest expense in the amount of $0.9 million including the amortization of debt issuance costs on Pinstripes' financing arrangements issued subsequent to October 15, 2023 in New Pinstripes’ unaudited pro form consolidated statement of operations for the twenty-four weeks ended October 15, 2023 giving effect to the Business Combination, had the Business Combination occurred on April 25, 2022.
5(b)(iii)	Represents the recognition of interest expense in the amount of $7.9 million including the amortization of debt issuance costs on the Tranche 1 Loan closed in connection with the Closing of the Business Combination in New Pinstripes’ unaudited pro form consolidated statement of operations for the twenty-four weeks ended October 15, 2023 giving effect to the Business Combination, had the Business Combination occurred on April 25, 2022.

5(c) Elimination of the unrealized loss on funds held in the Trust Account - Represents the approximate $0.1 million elimination of the historical unrealized loss on funds held in the Trust Account, which was dissolved and liquidated at the Closing of the Business Combination.

5(d) Elimination of the cumulative unpaid dividends and change in redemption amount of Pinstripes’ Series I Redeemable Convertible Preferred Stock - Represents the $2.0 million elimination of historical cumulative unpaid dividends and change in redemption amount of Pinstripes’ Series I Redeemable Convertible Preferred Stock, which was converted into shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination.

Note 6 – Pro Forma Net Loss Per Share

Represents the pro forma net loss per share calculated using the weighted average shares outstanding that resulted from the Business Combination, assuming the shares were outstanding since April 25, 2022, the beginning of the earliest period presented. As the Business Combination is reflected as if it had occurred at the beginning of the period presented, the calculation of weighted average shares outstanding for basic and diluted net loss per share assumes that the shares issuable relating to the Business Combination had been outstanding for the entire period presented.

Description	Twenty-Four Weeks Ended October 15, 2023			Fiscal Year Ended April 30, 2023
Pro Forma Weighted Average Shares Outstanding – Basic and Diluted
Por forma net loss attributable to stockholders	$	(27,259	)	$	(33,319	)
Weighted average shares outstanding - basic and diluted		39,918,036			39,918,036
Pro Forma Net Loss Per Share - Basic and Diluted	$	(0.68	)	$	(0.83	)
Pro Forma Weighted Average Shares Outstanding – Basic and Diluted
Pinstripes Stockholders(1)		33,449,433			33,449,433
Series I Investor(2)		2,721,400			2,721,400
Sponsor Holders(3)		2,646,250			2,646,250
Banyan equityholders(4)		1,050,953			1,050,953
Other(5)		50,000			50,000
Pro Forma Weighted Average Shares Outstanding – Basic and Diluted		39,918,036			39,918,036

(1) The number of shares held by the Pinstripes Stockholders is comprised of (i) the 6,363,628 then-issued and outstanding shares of Pinstripes Common Stock that were automatically cancelled and converted into 11,763,851 shares of New Pinstripes Class A Common Stock, based on the Exchange Ratio of approximately 1.85 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock, at the Closing of the Business Combination; (ii) the 924,304 then-issued and outstanding shares of Pinstripes Common Stock (that resulted from the automatic conversion of Pinstripes Convertible Notes immediately prior to the Closing of the Business Combination) that were automatically cancelled and converted into 924,304 shares of New Pinstripes Class A Common Stock, based on the Exchange Ratio of approximately 1.85 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock or common stock equivalent, at the Closing of the Business Combination; (iii) the 354,436 of the then-issued and outstanding shares of Pinstripes Common Stock (that resulted from the automatic conversion of Pinstripes’ warrants immediately prior to the Closing of the Business Combination) that were automatically cancelled and converted into 655,213 shares of New Pinstripes Class A Common Stock, based on the Exchange Ratio of approximately 1.85 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock or common stock equivalent, at the Closing of the Business Combination; (iv) the 10,203,945 then-issued and outstanding shares of Pinstripes Common Stock (that resulted from the automatic conversion of the Pinstripes’ Redeemable Convertible Preferred Stock, excluding Pinstripes’ Series I Redeemable Convertible Preferred Stock and the cumulative unpaid dividends accrued thereon, immediately prior to the Closing of the Business Combination) that were automatically cancelled and converted into 18,863,090 shares of New Pinstripes Class A Common Stock, based on the Exchange Ratio of approximately 1.85 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock or common stock equivalent; and (v) the 1,242,975 shares of New Pinstripes Class A Common Stock (that resulted from the Sponsor Holders forfeiting 1,242,975 shares of the then-issued and outstanding Banyan Class A Common Stock which were re-issued as 1,242,975 shares of New Pinstripes Class A Common Stock) issued to the Pinstripes Stockholders at the Closing of the Business Combination.   The number of shares held by the Pinstripes Stockholders does not include (i) the 2,500,000 shares of New Pinstripes Series B-1 Common Stock that are subject to certain subject to certain vesting conditions pursuant to the Second Amended and Restated Certificate of Incorporation of New Pinstripes; (ii) the 2,500,000 shares of New Pinstripes Series B-2 Common Stock held by the Pinstripes Stockholders that are subject to certain vesting conditions pursuant to the Second Amended and Restated Certificate of Incorporation of New Pinstripes; or (iii) the 4,000,000 shares of New Pinstripes Series B-3 Common Stock held by the Pinstripes Stockholders that are subject to certain vesting conditions pursuant to the Second Amended and Restated Certificate of Incorporation of New Pinstripes.   For the avoidance of doubt, the Series I Investors are not, and do not constitute, Pinstripes Stockholders as referenced herein.

(2)	Represents (i) the 850,648 then-issued and outstanding shares of Pinstripes Common Stock (that resulted from the automatic conversion of Pinstripes’ Series I Redeemable Convertible Preferred Stock immediately prior to the Closing of the Business Combination) that were automatically cancelled and exchanged into 2,126,620 shares of New Pinstripes Class A Common Stock, based on the Series I Exchange Ratio of approximately 2.5 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock or common stock equivalent, at the Closing of the Business Combination; (ii) the 35,102 then-issued and outstanding shares of Pinstripes Common Stock (that resulted from the automatic conversion of the cumulative unpaid dividends on Pinstripes’ Series I Redeemable Convertible Preferred Stock immediately prior to the Closing of the Business Combination) that were automatically cancelled and exchanged into 87,755 shares of New Pinstripes Class A Common Stock, based on the Series I Exchange Ratio of approximately 2.5 shares of New Pinstripes Class A Common Stock for each share of Pinstripes Common Stock or common stock equivalent, at the Closing of the Business Combination; and (iii) the 507,025 shares of New Pinstripes Class A Common Stock (that resulted from the Sponsor Holders forfeiting 507,025 shares of the then-issued and outstanding Banyan Class A Common Stock, which were re-issued as 507,025 shares of New Pinstripes Class A Common Stock) issued to the Series I Investors at the Closing of the Business Combination.
(3)	Reflects the 2,646,520 of the then-issued and outstanding shares of Banyan Class A Common Stock held by the Sponsor Holders that continued as 2,646,520 shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination.
(4)	Represents (i) the 32,203 of the then-issued and outstanding shares of Banyan’s Redeemable Class A Common Stock that converted, on a on-for-one basis, into 32,203 shares of New Pinstripes Class A Common Stock at the Closing of the Business Combination; and (ii) the 1,018,750 shares of New Pinstripes Class A Common Stock (that resulted from the Sponsor Holders forfeiting 1,018,750 shares of the then-issued and outstanding Banyan Class A Common Stock, which were re-issued as 1,018,750 shares of New Pinstripes Class A Common Stock) issued to Banyan equityholders, pursuant to certain non-redemption agreements, at the Closing of the Business Combination.
(5)	Reflects the 50,000 shares of New Pinstripes Class A Common Stock being issued within five (5) business days after the Closing of the Business Combination to a third-party as payment for $0.5 million of Pinstripes’ incurred transaction costs. The $0.5 million of transaction costs primarily represent fees incurred by Pinstripes for financial advisory, legal, and other professional services in connection with the Closing of the Business Combination.

The potentially dilutive shares presented in the table below have been excluded from the calculation of net loss per share as the effect of inclusion would be anti-dilutive. The number of potentially dilutive shares is based on the maximum number of shares issuable upon exercise or conversion of the related securities as of the period end. Such amounts have not been adjusted for the treasury stock method or weighted average shares outstanding calculations as would have been required if the securities were dilutive.

Potentially Dilutive Shares	Shares
New Pinstripes Warrants (exercisable for an equal amount of shares of New Pinstripes Class A Common Stock)(1)		26,485,000
New Pinstripes Options		5,033,006
Unvested shares of New Pinstripes Class B-1 Common Stock –Earnout Shares(2)		2,500,000
Unvested shares of New Pinstripes Class B-2 Common Stock –Earnout Shares(2)		2,500,000
Unvested shares of New Pinstripes Class B-3 Common Stock –EBITDA Earnout Shares(3)		4,000,000
Unvested shares of New Pinstripes Class B-1 Common Stock – Sponsor Earnout Shares(4)		915,000
Unvested shares of New Pinstripes Class B-2 Common Stock – Sponsor Earnout Shares(4)		915,000
Pro Forma Common Stock Equivalents		42,348,006

(1)	The number of New Pinstripes Warrants (exercisable for an equal amount of shares of New Pinstripes Class A Common Stock) gives effect to (1) the conversion of the historical 12,075,000 Banyan Public Warrants into 12,750,000 New Pinstripes Warrants (exercisable for an equal amount of shares of New Pinstripes Class A Common Stock); (2) the conversion of the historical 11,910,000 Banyan Private Placement Warrants into 11,910,000 New Pinstripes Warrants (exercisable for an equal amount of shares of New Pinstripes Class A Common Stock); and (3) the grant of 2,500,000 New Pinstripes Warrants (exercisable for an equal amount of shares of New Pinstripes Class A Common Stock) issued simultaneously with, and in contemplation of, the Tranche 1 Loan at the Closing of the Business Combination. Each whole New Pinstripes Warrant entitles the holder thereof to purchase one (1) share of New Pinstripes Class A Common Stock.
(2)	Pursuant to the provisions of the Second Amended and Restated Certificate of Incorporation of New Pinstripes, an aggregate of 5,000,000 shares (comprised of 2,500,000 shares of New Pinstripes Series B-1 Common Stock and 2,500,000 shares of New Pinstripes Series B-2 Common Stock) held by the Pinstripes Stockholders are subject to certain vesting conditions. For the avoidance of doubt, the Series I Investors are not, and do not constitute, Pinstripes Stockholders as referenced herein.
(3)	Pursuant to the provisions of the Second Amended and Restated Certificate of Incorporation of New Pinstripes, 4,000,000 shares of New Pinstripes Series B-3 Common Stock held by the Pinstripes Stockholders are subject to certain vesting conditions. For the avoidance of doubt, the Series I Investors are not, and do not constitute Pinstripes Stockholders as referenced herein.

(4) Pursuant to the provisions of the Second Amended and Restated Certificate of Incorporation of New Pinstripes, an aggregate of 1,830,000 shares of common stock (comprised of 915,000 shares of New Pinstripes Class B-1 Common Stock and 915,000 shares of New Pinstripes Class B-2 Common Stock) held by the Sponsor Holders are subject to certain vesting conditions.

EX-99.3

Exhibit 99.3

MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF PINSTRIPES

Defined terms included below have the same meaning as terms defined and included elsewhere in this current report on Form 8-K (this “Current Report on Form 8-K”) dated January 5, 2024, or if not defined in this Current Report on Form 8-K, in the definitive proxy statement/consent solicitation statement/prospectus filed by Banyan with the Securities and Exchange Commission (“SEC”) on December 5, 2023 (the “definitive proxy statement/consent solicitation statement/prospectus”).

Unless the context otherwise requires, any reference in this section to Pinstripes, Inc., the “Company,” “we,” “us,” “our,” or “Pinstripes” refers to Pinstripes, Inc. and its consolidated subsidiaries prior to the consummation of the Business Combination. You should read the following discussion and analysis of our financial condition and results of operations together with our consolidated financial statements and the related notes and other financial information included elsewhere in this Current Report on Form 8-K and in the joint proxy statement/consent solicitation statement/prospectus, including the “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Pinstripes” section of the definitive proxy statement/consent solicitation statement/prospectus, which covers prior periods of Pinstripes. Some of the information contained in this discussion and analysis or set forth elsewhere in this Current Report on Form 8-K, including information with respect to our plans and strategy for our business, includes forward-looking statements that involve risks and uncertainties. You should review the “Cautionary Note Regarding Forward-Looking Statements” in this Current Report on Form 8-K and the “Cautionary Note Regarding Forward-Looking Statements” and “Risk Factors” sections of the definitive proxy statement/consent solicitation statement/prospectus for a discussion of important factors that could cause actual results to differ materially from the results described in or implied by the forward-looking statements contained in the following discussion and analysis.

We have a 52- or 53- week fiscal year ending on the last Sunday of April. All references to fiscal 2023, fiscal 2022 and fiscal 2021 reflect the results of the 53-week fiscal year ended April 30, 2023, the 52-week fiscal year ended April 24, 2022, and the 52-week fiscal year ended April 25, 2021 respectively. The first and second fiscal quarters of 2024 reflect the results of the twelve-weeks ended on July 23, 2023 and October 15, 2023, respectively. Our first three fiscal quarters are comprised of 12 weeks each, and the fourth quarter 16 weeks, except for fiscal years consisting of 53 weeks for which the fourth quarter will consist of 17 weeks, and end on the 12th Sunday of each quarter (16th Sunday of the fourth quarter, and, when applicable, the 17th Sunday of the fourth quarter).

Overview

Pinstripes is an experiential dining and entertainment concept combining exceptional Italian-American cuisine with bowling, bocce, and private events. Our large-format community venues offer a winning combination of sophisticated fun for the consumer longing for human connectedness across generations, and we deliver a broad range of experiences, from a 300-person wedding in one of our many event spaces, to an intimate date night for two in one of our dining rooms, to a birthday party on our bowling lanes or bocce courts. This ability to offer curated and engaging experiences across a broad range of occasions enables us to generate revenue from numerous sources, including dining, bowling and bocce and private events and off-site events and catering.

As of January 5, 2024, we owned and operated 15 restaurants in nine states and Washington D.C., and employed approximately 2,000 PinMembers. We are highly disciplined in our site selection process, and we design and construct large-format locations that are each 26,000 to 38,000 square feet of interior space, plus additional outdoor patio space that includes outdoor dining, bocce courts, fire-pits and decorative fountains. Each location can host over 900 guests at a time, with dining capacity of approximately 300 guests, bar capacity of 75 guests, 11 to 20 bowling lanes, 6 to 12 indoor/outdoor bocce courts and multiple private event spaces that can accommodate groups of 20 to 1,000 guests. Our locations generated average unit volumes (“AUV”), as further defined below, of $8.6 million for the fiscal year ended April 30, 2023, demonstrating the scale of our operating model and ability to tailor our space in bespoke ways. Our overall revenue growth over the past few years has primarily been driven by increases in same store sales and is expected in the future to be primarily driven by revenues from new location openings and increases in same store sales.

Factors Affecting Our Business

Expanding Footprint

We have developed a disciplined new venue growth strategy in both new and existing markets, and target certain initial sales, profitability and payback period goals for each new venue opening. We employ a sophisticated, data-based site selection strategy that is highly collaborative with our real estate development partners and network of brokers around the country and focuses on markets with high income and education levels, population density and strong co-tenants. We expect to benefit from a powerful density effect as we continue to open new venues in existing markets, which increases market awareness and generates staffing synergies.

Macroeconomic Conditions

Consumer spending on food and entertainment outside the home fluctuates with macroeconomic conditions. Consumers tend to allocate higher spending to food outside the home when macroeconomic conditions are stronger, and rationalize spending on food outside the home during weaker economies. While we have been able to partially offset inflation and other increases, such as wage increases, in the costs of core operating resources by gradually increasing menu prices, coupled with more efficient purchasing practices, productivity improvements, and greater economies of scale, there can be no assurance that we will be able to continue to do so in the future. In particular, macroeconomic conditions could make additional menu price increases imprudent. There can be no assurance that future cost increases can be offset by increased menu prices or that increased menu prices will be fully absorbed by our customers without any resulting change to their visit frequencies or purchasing patterns.

Fiscal Calendar and Seasonality

We operate on a 52-week or 53-week fiscal year that ends on the last Sunday of April. In a 52-week fiscal year, the first, second and third fiscal quarters each contain twelve weeks and the fourth fiscal quarter contains sixteen weeks. In a 53-week fiscal year, the first, second and third fiscal quarters each contain twelve weeks and the fourth fiscal quarter contains seventeen weeks.

Our revenues are influenced by seasonal shifts in consumer spending. Typically, our average sales per location are highest during the holiday season (specifically the period from the last week of November to the second week of January) and summer, and lowest in the winter and the fall (other than during the holiday season). This seasonality is due to increases in spending and private events during the holiday season, following by continued increased activity as the weather improves in the spring and summer. The fall and winter are our lowest sales seasons due to the fact that the weather is typically deteriorating and children are returning to school. However, throughout fiscal 2021, a variety of factors, including the impacts of COVID-19 on our business, government actions taken to respond to COVID-19 and to stimulate the United States’ recovery from COVID-19, and changing consumer preferences caused fluctuations in our sales volumes that were different than our typical seasonality. Additionally, holidays, changes in the economy, severe weather and similar conditions may impact sales volumes seasonally in some operating regions.

As a result of these factors and the differences among our fiscal quarters, our quarterly operating results and comparable restaurant sales, as well as our key performance measures, may fluctuate significantly from quarter to quarter and our results for any one quarter are not indicative of any other quarter.

The COVID-19 Pandemic and Other Impacts to our Operating Environment

For much of our fiscal year ended April 25, 2021, the COVID-19 pandemic resulted in a significant reduction in guest traffic due to changes in consumer behavior as public health officials encouraged social distancing and required personal protective equipment. Also, state and local governments mandated restrictions including suspension of dine-in operations, reduced restaurant seating capacity, table spacing requirements, bar closures and additional physical barriers. Once COVID-19 vaccines were approved and moved into wider distribution in the United States in early 2021, public health conditions improved and almost all of the COVID-19 restrictions on businesses eased.

During our fiscal year ended April 24, 2022, increases in the number of cases of COVID-19 throughout the United States including those as a result of the Omicron variant which significantly impacted our locations in January 2022, subjected some of our locations to other COVID-19-related restrictions such as mask and/or vaccine requirements for team members, guests or both. Exclusions and quarantines of PinMembers or groups thereof disrupt an individual location’s operations and often come with little or no notice to the local management. During fiscal 2022, fiscal 2023 and the first twelve weeks of fiscal 2024 along with COVID-19, our operating results were impacted by geopolitical and other macroeconomic events, leading to higher than usual inflation of wages and other cost of goods sold. These events also impacted the availability of PinMembers needed to staff our locations and caused additional disruptions in our product supply chain. The market for qualified talent is competitive and we must provide increasingly attractive wages, benefits, and workplace conditions to retain qualified PinMembers, particularly with respect to managerial positions where the pool of qualified candidates can be small. Increases in wage and benefits costs, including as a result of increases in minimum wages, including sub minimum wages applicable to tipped positions, and other governmental regulations affecting labor costs, have significantly increased our labor costs and operating expenses and have made it more difficult to fully staff our restaurants.

The Company continues to monitor and address impacts of the COVID-19 pandemic, including any related governmental actions. Although we believe our operating results will continue to improve as we expand our footprint and continue to implement operating efficiencies, we may incur future expenses related to wage inflation, staffing challenges, product cost inflation and disruptions in the supply chain.

The Business Combination

Pinstripes, Banyan and Merger Sub, entered into the Second Amended and Restated Business Combination Agreement on November 22, 2023. Upon consummation of the Business Combination, on December 29, 2023, Pinstripes merged with and into Merger Sub, with Pinstripes surviving the merger as a wholly owned subsidiary of Banyan. In connection with the Closing, Banyan was renamed “Pinstripes Holdings, Inc.” References below to “New Pinstripes” denote the post-Business Combination entity that was formerly Banyan.

The Business Combination is accounted for as a reverse recapitalization in accordance with GAAP. Under this method of accounting, Banyan is treated as the acquired company and Pinstripes is treated as the acquirer for financial reporting purposes. Accordingly, for accounting purposes, the financial statements of New Pinstripes represent a continuation of the financial statements of Pinstripes, with the Business Combination treated as the equivalent of Pinstripes issuing stock for the historical net assets of Banyan, accompanied by a recapitalization. The net assets of Banyan will be stated at fair value, which is expected to approximate historical cost, with no goodwill or other intangible assets recorded. Operations prior to the Business Combination are those of Pinstripes.

As a consequence of the Business Combination, Pinstripes, became a subsidiary of an SEC- registered and NYSE-listed company, which will require us to hire additional personnel and implement procedures and processes to address public company regulatory requirements. We expect to incur additional annual expenses as a public company for, among other things, directors’ and officers’ liability insurance, director fees and additional internal and external accounting and legal and administrative resources, including increased audit and legal fees.

Key Performance Metrics

We track the following key business metrics to evaluate our performance, identify trends, formulate financial projections, and make strategic decisions. We believe that these key business metrics provide useful information to investors and others in understanding and evaluating our results of operations in the same manner as our management team. These key business metrics are presented for supplemental informational purposes only, and may be different from similarly titled metrics or measures presented by other companies.

Selected Metrics:

Average Unit Volumes (AUV)

	Fiscal Year Ended
(dollar amounts in millions)	April 30, 2023		April 24, 2022		April 25, 2021
Total Locations		13		13		13
AUV		8.6		5.9		1.9

Average unit volume (“AUV”) is the total revenue generated by operating Pinstripes locations for the entire fiscal year, divided by the number of operating Pinstripes locations for the entire fiscal year. This measurement allows us to assess, and our investors to understand, changes in guest spending patterns of our restaurants and the overall performance of our existing locations. An increase or decrease in AUV is the result of changes in guest traffic and average guest check. We gather daily sales data and regularly analyze the restaurant traffic counts and the mix of menu items sold to aid in developing menu pricing, product offerings and promotional strategies designed to produce sustainable AUV. When opening locations in new markets, we typically generate significant revenues in the first year of operation as a result of guests wanting to experience a new concept open in the market, and typically continue to generate significant revenues in the second year and years thereafter as our overall brand awareness increases in the surrounding areas, coupled with an increase in many types of private events that are booked months, or years, in advance (i.e., weddings, bar mitzvahs, graduation parties, and others).

Store Labor and Benefits Percentage

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Store labor and benefits	$	9,337		$	9,052			3.1	%
As a percentage of total revenue		37.9	%		37.8	%

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Store labor and benefits	$	18,634		$	18,066			3.0	%
As a percentage of total revenue		37.0	%		36.9	%

Store Labor and Benefits Percentage is store labor and benefits costs measured under GAAP divided by total revenue.

Same Store Sales Growth

	Twelve Weeks Ended
	October 15,			October 9,
	2023			2022
Same Store Sales Growth		1.9	%		36.6	%
Store Base		13			13

	Twenty-Four Weeks Ended
	October 15,			October 9,
	2023			2022
Same Store Sales Growth		2.5	%		45.2	%
Store Base		13			13

Same store sales growth refers to the change in year-over-year sales for the comparable store base. We include stores in the comparable store base that have been in operation for at least 12 full months prior to the accounting period presented. The COVID-19 pandemic impacted our store operations in fiscal year 2021 and resulted in stores being closed or capacity severely limited during our fiscal year 2021. Therefore, our stores were not comparable until the first quarter of fiscal year 2023, and therefore comparable same store sales growth can only be measured for periods beginning with the first quarter of fiscal year 2023.

Since opening new stores will be a significant component of our sales growth, comparable restaurant sales growth is only one measure of how we evaluate our performance.

Number of Store Openings

The number of store openings reflects the number of stores opened during a particular reporting period. Before we open new stores, we incur pre-opening expenses. The number and timing of store openings has had, and is expected to continue to have, an impact on our results of operations.  For both the twelve and twenty-four weeks ended October 15, 2023 we had one new store opening.

Components of Results of Operations

Revenue

We recognize food and beverage revenue, net of discounts and incentives, when payment is tendered at the point of sale as the performance obligation has been satisfied. Food and beverage revenues include the sale of food and beverage products. Recreation revenue includes bowling and bocce sales. Revenues are recognized net of discounts and taxes. Event deposits received from guests are deferred and recognized as revenue when the event is held. Events sales consisting of charges for bowling or bocce play are recognized as “recreation revenue,” while all other event sales are recognized as “food and beverage revenue.”

We sell gift cards, which do not have expiration dates and do not deduct non-usage fees from outstanding gift card balances. We record gift card sales as a liability and recognized as revenue upon redemption by the customer. For unredeemed gift cards that we expect to be entitled to breakage and for which there is no legal obligation to remit the unredeemed gift card balances to the relevant jurisdictions, we recognize expected breakage as revenue in proportion to the pattern of redemption by the customers. The determination of the gift card breakage is based on our specific historical redemption patterns.

Revenues are reported net of sales tax collected from customers. Sales tax collected is included in other accrued liabilities on the Consolidated Balance Sheets until the taxes are remitted to the appropriate taxing authorities.

Restaurant Operating Costs

Cost of food and beverage

The components of food and beverage are variable in nature, increase as sales volumes increase and are influenced by sales mix, commodity costs, and inflation.

Store labor and benefits

Store labor and benefits consists of all restaurant-level management and hourly labor costs including salaries, wages, benefits, bonuses, and payroll taxes. Corporate-level employees are otherwise classified within general and administrative expenses on the consolidated statements of operations.

Factors that influence labor costs include minimum wage and payroll tax legislation, health care costs, and size and location of our stores.

Store occupancy costs, excluding depreciation

Store occupancy costs, excluding depreciation, consists of rent expense, common area maintenance costs, real estate taxes, and utilities.

Other store operating expenses, excluding depreciation

Other store operating expenses include other operating expenses incidental to operating our locations, such as third-party delivery fees, non-perishable supplies, repairs and maintenance, credit card fees and property insurance.

Operating Expenses

General and administrative expenses

General and administrative expenses consist primarily of operations, finance, advertising, legal, human resources, administrative personnel, and other personnel costs that support development and operations, as well as stock-based compensation expense.

Depreciation expense

Depreciation expense includes the depreciation of fixed assets, including leasehold improvements and equipment.

Impairment loss

Long-lived assets, such as property and equipment, and operating lease right-of-use assets are reviewed for impairment annually or whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Impairment loss is recognized for the amount by which the carrying amount of the asset group exceeds the fair value of the asset group. See Note 2, Significant Accounting Policies, to our audited consolidated financial statements included in the definitive proxy statement/consent solicitation statement/prospectus and the notes to our unaudited financials filed as an exhibit to the Current Report on Form 8-K for further information.

Pre-opening expenses

Pre-opening costs include costs associated with the opening and organizing of new stores, including the cost of pre-opening rent, training, relocation, recruiting and travel costs for team members engaged in such pre-opening activities. All pre-opening costs are expensed as incurred.

Interest expense

Interest expense includes mainly the interest incurred on our outstanding indebtedness, as well as amortization of deferred financing costs, mainly debt origination and commitment fees.

Other expenses

Other expenses have to date been immaterial.

Gain on debt extinguishment

Gain on debt extinguishment includes forgiveness of Paycheck Protection Program Loans (“PPP Loans”).

Gain on change in fair value of warrant liability

Changes in the fair value of our outstanding warrant liabilities are recognized in the statement of operations. Decreases or increases on the liability are based changes to our fair market valuation.

Income tax expense

Our income tax expense consists primarily of federal and state income taxes and has historically not been material.

Results of Operations

We operate in one operating and reportable segment.

Comparison of twelve weeks ended October 15, 2023 (“ second quarter of fiscal 2024”) and twelve weeks ended October 9, 2022 (“second quarter of fiscal 2023”)

The following table summarizes our results of operations:

	Twelve Weeks Ended						Dollar			Percentage
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Change			Change
Food and beverage revenues	$	19,435		$	18,998		$	437			2.3	%
Recreation revenues		5,188			4,946			242			4.9	%
Total revenue		24,623			23,944			679			2.8	%
Cost of food and beverage		4,278			4,198			80			1.9	%
Store labor and benefits		9,337			9,052			285			3.1	%
Store occupancy costs, excluding depreciation		4,583			4,217			366			8.7	%
Other store operating expenses, excluding depreciation		5,134			3,864			1,270			32.9	%
General and administrative expenses		3,774			3,312			462			13.9	%
Depreciation expense		1,697			1,861			(164	)		(8.8	)%
Pre-opening expenses		3,026			459			2,567			559.3	%
Operating loss		(7,206	)		(3,019	)		(4,187	)		(138.7	)%
Interest expense		(1,908	)		(265	)		(1,643	)		(620.0	)%
Gain on change in fair value of warrant liability		1,759			-			1,759			100.0	%

	Twelve Weeks Ended						Dollar			Percentage
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Change			Change
Gain (loss) on debt extinguishment		-			(10	)		10			100.0	%
Income (loss) before income taxes		(7,355	)		(3,294	)		(4,061	)		(123.3	)%
Income tax expense		(72	)		96			(168	)		(175.0	)%
Net income (loss)	$	(7,283	)	$	(3,390	)	$	(3,893	)		(114.8	)%

Revenue

The increase in revenue for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to increases in menu and event pricing and one new location opening in the second quarter of fiscal 2024 compared to none in fiscal 2023 offset by modest decreases in transaction volume.

Restaurant Operating Costs

Cost of food and beverage

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Cost of food and beverage	$	4,278		$	4,198			1.9	%
As a percentage of total revenue		17.4	%		17.5	%

The increase in food and beverage costs for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was entirely due to an increase in food and beverage sales which was partially offset by reduced food and beverage costs of approximately $16,564.16 as efficiency efforts began in fiscal 2024.

As a percentage of revenue, the decrease in food and beverage costs for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to efficiencies resulting from (i) an increase in event sales, which generally result in higher margins due to a favorable pricing model, scale and simplicity of menus, and (ii) the use of a higher percentage of lower-cost spirit sales versus beer and wine.

Store labor and benefits

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Store labor and benefits	$	9,337		$	9,052			3.1	%
As a percentage of total revenue		37.9	%		37.8	%

The increase in store labor and benefits expenses for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to an increased number of hourly employees to meet increased demand and customer traffic and an increased number of event sales employees in connection with the growth of our private events operations. Also, the addition of one new store contributed to higher store labor and benefits costs.

As a percentage of revenue, the increase in store labor and benefits expenses for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to the addition of one new location and the associated initial post-opening ramp up in costs relative to the ramp up in revenues of the new location.

Store occupancy costs, excluding depreciation

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Store occupancy costs, excluding depreciation	$	4,583		$	4,217			8.7	%
As a percentage of total revenue		18.6	%		17.6	%

The increase in store occupancy costs, excluding depreciation for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to one new location opening in fiscal 2024 compared to fiscal 2023 plus modest increases in common area maintenance charges at various locations due to normal increases in operating costs passed on by various landlords pursuant to our leases, as well as modest increases in real estate taxes for similar locations.

As a percentage of revenue, the increase in store occupancy costs, excluding depreciation for fiscal 2024 compared to fiscal 2023 was primarily due to the addition of one new location and the associated initial post-opening ramp up in costs being relatively higher to the ramp up in revenues of the new location.

Other store operating expenses, excluding depreciation

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Other store operating expenses, excluding depreciation	$	5,134		$	3,864			32.9	%
As a percentage of total revenue		20.9	%		16.1	%

The increase in other store operating expenses, excluding depreciation for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to due to one new location opening in fiscal 2024 compared to fiscal 2023 plus overall store supply and location infrastructure expenses increasing due to increased utilization and inflation driven cost increases.

As a percentage of revenue, the increase in other store operating expenses, excluding depreciation for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to the addition of one new location and the associated initial post-opening ramp up in costs relative to the ramp up in revenues of the new location.

General and administrative expenses

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
General and administrative expenses	$	3,774		$	3,312			13.9	%
As a percentage of total revenue		15.3	%		13.8	%

The increase in general and administrative expenses, including as a percentage of total revenue, for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to increased marketing spend and additional corporate headcount added in fiscal 2024 compared to fiscal 2023.

Depreciation expense

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Depreciation expense	$	1,697		$	1,861			(8.8	)%
As a percentage of total revenue		6.9	%		7.8	%

The decrease in depreciation expense for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to a change in our fixed asset depreciation schedule, most notably assets being fully depreciated and removed from the schedule.

As a percentage of revenue, the decrease in depreciation expense for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to an increase in sales and decrease in depreciation expense.

Pre-opening expenses

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Pre-opening expenses	$	3,026		$	459			559.3	%
As a percentage of total revenue		12.3	%		1.9	%

The increase in pre-opening expenses, including as a percentage of total revenue, for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to training and hiring, marketing and legal expenses associated with the planned opening of six new venues opening in fiscal 2024 compared to one new planned location in fiscal 2023.

Interest expense

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Total interest expense	$	(1,908	)	$	(265	)		620	%
As a percentage of total revenue		7.7	%		1.1	%

The increase in interest expense for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to an increase in indebtedness.

Gain on change in fair value of warrant liability

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022		Percentage Change
Gain on change in fair value of warrant liability	$	1,759		$	-		100.0	%
As a percentage of total revenue		7.1	%		0.0

The increase in gain on change in fair value of warrant liability is due to the decrease in our fair market valuation and its impact on the value of our outstanding warrants as of end of the second quarter of fiscal 2024.

Loss before income taxes

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
(Loss) before income taxes	$	(7,355	)	$	(3,294	)		(123.3	)%

The increase in loss before income taxes for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to the factors described above.

Net Loss

	Twelve Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Net (loss)/income	$	(7,283	)	$	(3,390	)		(114.8	)%

The increase in net loss for the second quarter of fiscal 2024 compared to the second quarter of fiscal 2023 was primarily due to the factors described above.

Comparison of twenty-four weeks ended October 15, 2023 and twenty-four weeks ended October 9, 2022

The following table summarizes our results of operations:

	Twenty-Four Weeks Ended						Dollar			Percentage
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Change			Change
Food and beverage revenues	$	39,952		$	39,398		$	554			1.4	%
Recreation revenues		10,412			9,527			885			8.5	%
Total revenue		50,364			48,925			1,439			2.9	%
Cost of food and beverage		8,715			8,627			88			1.0	%
Store labor and benefits		18,634			18,066			568			3.0	%
Store occupancy costs, excluding depreciation		5,590			8,246			(2,656	)		(32.2	)%
Other store operating expenses, excluding depreciation		9,556			8,178			1,378			14.4	%
General and administrative expenses		7,302			7,311			(9	)		(0.1	)%
Depreciation expense		3,341			3,714			(373	)		(11.2	)%
Pre-opening expenses		5,304			985			4,319			81.4	%
Operating loss		(8,078	)		(6,202	)		(1,876	)		(30.2	)%
Interest expense		(3,601	)		(457	)		(3,144	)		(87.3	)%
Gain on change in fair value of warrant liability		1,350			-			1,350			100.0	%
Gain (loss) on debt extinguishment		-			8,448			(8,448	)		(100.0	)%
Income (loss) before income taxes		(10,329	)		1,789			(12,118	)		(677.4	)%
Income tax expense		-			144			(144	)		(100.0	)%

	Twenty-Four Weeks Ended					Dollar			Percentage
(dollar amounts in thousands)	October 15, 2023			October 9, 2022		Change			Change
Net income (loss)	$	(10,329	)	$	1,645	$	(11,974	)		(727.9	)%

Revenue

The increase in revenue for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to price increases in menu items and events, contributing 89% of the increase in revenue in the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022. In addition, revenue also benefitted one new location being open for a portion of the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022.

Restaurant Operating Costs

Cost of food and beverage

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Cost of food and beverage	$	8,715		$	8,627			1.0	%
As a percentage of total revenue		17.3	%		17.6	%

The increase in food and beverage costs for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was entirely due to an increase in food and beverage sales which was partially offset by reduced food and beverage costs of approximately $33,309.66 as efficiency efforts began in fiscal 2024.

As a percentage of revenue, the decrease in food and beverage costs for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to efficiencies resulting from (i) an increase in event sales, which generally result in higher margins due to a favorable pricing model, scale and simplicity of menus, and (ii) the use of a higher percentage of lower-cost spirit sales versus beer and wine.

Store labor and benefits

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Store labor and benefits	$	18,634		$	18,066			3.0	%
As a percentage of total revenue		37.0	%		36.9	%

The increase in store labor and benefits expenses for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to an increased number of event sales employees in connection with the growth of our private events operations and one new location open in a portion of the twenty-four weeks ended October 15, 2023.

As a percentage of revenue, store labor and benefits for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 remained consistent resulting from an increase in event sales, which generally result in more predictable and favorable labor costs offset by modest increases in wages and other labor related costs.

Store occupancy costs, excluding depreciation

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Store occupancy costs, excluding depreciation	$	5,590		$	8,246			(32.2	)%
As a percentage of total revenue		11.1	%		16.9	%

The decrease in store occupancy costs, excluding depreciation for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to the impact of the amendment of our lease agreement entered in June 2023 for our Georgetown location, resulting in a reduction of occupancy cost in the period of $3,281,265, offset in part by modest increases in common area maintenance charges at various locations due to normal increases in operating costs passed on by various landlords pursuant to our leases, as well as modest increases in real estate taxes for similar locations.

As a percentage of revenue, the decrease in store occupancy costs, excluding depreciation for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to the Georgetown lease restructuring and an increase in sales in the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022.

Other store operating expenses, excluding depreciation

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Other store operating expenses, excluding depreciation	$	9,556		$	8,178			14.4	%
As a percentage of total revenue		19.0	%		16.7	%

The increase in other store operating expenses, excluding depreciation for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to overall store supply and location infrastructure expenses increasing due to increased utilization and inflation driven cost increases plus one new store opening.

As a percentage of revenue, the increase in other store operating expenses, excluding depreciation for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to inflation and utilization rates for supply and location infrastructure expenses outpacing revenue increases.

General and administrative expenses

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
General and administrative expenses	$	7,302		$	7,311			(0.1	)%
As a percentage of total revenue		14.5	%		14.9	%

The decrease in general and administrative expenses for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to reductions in consulting and legal fees as compared to fiscal 2023.

As a percentage of revenue, the decrease in general and administrative expenses for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to the reductions discussed in the preceding paragraph and an increase in sales.

Depreciation expense

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Depreciation expense	$	3,341		$	3,714			(11.2	)%
As a percentage of total revenue		6.6	%		7.6	%

The decrease in depreciation expense for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to a change in our fixed asset depreciation schedule, most notably assets being fully depreciated and removed from the schedule.

As a percentage of revenue, the decrease in depreciation expense for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to lower depreciation expense as described in the preceding paragraph and an increase in sales.

Pre-opening expenses

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Pre-opening expenses	$	5,304		$	985			438.5	%
As a percentage of total revenue		10.5	%		0.2	%

The increase in pre-opening expenses, including as a percentage of total revenue, for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to training and hiring, marketing and legal expenses associated with the opening of the planned six new venues scheduled to open in fiscal 2024 compared to one new location in fiscal 2023.

Interest expense

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022			Percentage Change
Total interest expense	$	(3,601	)	$	(457	)		(688.0	%
As a percentage of total revenue		7.1	%		0.1	%

The increase in interest expense for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to an increase in indebtedness near the end of the twenty-four weeks ended October 15, 2023.

As a percentage of revenue, the interest expense for the twenty-four weeks ended October 15, 2023 increased due to the increase in indebtedness as compared to the twenty-four weeks ended October 9, 2022.

Gain on change in fair value of warrant liability

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022		Percentage Change
Gain on change in fair value of warrant liability	$	1,350		$	-		100.0	%
As a percentage of total revenue		2.7	%		-

The increase in gain on change in fair value of warrant liability is primarily due to the decrease in our fair market valuation in the second quarter of fiscal 2024 and its impact on the value of warrants outstanding.

Gain (loss) on debt extinguishment

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023		October 9, 2022			Percentage Change
Gain (loss) on debt extinguishment	$	-	$	8,448			(100.0	)%
As a percentage of total revenue		-		17.3	%

The decrease in gain on debt extinguishment was due to no PPP Loans being forgiven in the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022.

Income (loss) before income taxes

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022		Percentage Change
Income (loss) before income taxes	$	(10,329	)	$	1,789		(677.4	)%

The increase in loss before income taxes for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to the factors described above.

Net Loss

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022		Percentage Change
Net (loss)/income	$	(10,329	)	$	1,645		(727.9	)%

The increase in net loss for the twenty-four weeks ended October 15, 2023 compared to the twenty-four weeks ended October 9, 2022 was primarily due to the factors described above.

Liquidity and Capital Resources

To date, we have funded our operations through proceeds received from previous common stock and preferred stock issuances, through borrowings under various lending commitments and through cash flow from operations. As of October 15, 2023 and April 30, 2023 we had $8.0 million and $8.4 million in cash and cash equivalents, respectively. In fiscal 2023, we borrowed $22.5 million under a loan facility (the “Silverview Facility”) with Silverview Credit Partners LP (“Silverview”) and had access to second tranche in the amount of $12.5 million through the Silverview Facility. In fiscal 2023 we borrowed $11.5 million under an equipment loan facility (the “Granite Creek Facility”) with Granite Creek Partners (“Granite Creek”). In the first twenty-four weeks of fiscal 2024, we borrowed an additional $7.5 million under such facilities. On December 29, 2023, we borrowed an additional $5.0 million under the Silverview Facility for a total of $35 million in conjunction with entering into a new Loan Agreement with Oaktree under which we borrowed an additional $50.0 million. As of December 29, 2023 we had approximately $40.0 million in cash and cash equivalents. If we are unable to generate positive operating cash flows, additional debt and equity financings may be necessary to sustain future operations, and there can be no assurance that such financing will be available to us on commercially reasonable terms, or at all.

Historically, our primary liquidity and capital requirements have been for new location development, initiatives to improve the customer experience in our locations, working capital and general corporate needs. We have not required significant working capital because landlords have provided substantial tenant improvement allowances for construction, customers generally pay using cash or credit and debit cards and, as a result, our operations do not generate significant receivables. We have benefitted from tenant improvement allowances. Additionally, our operations do not require significant inventories due, in part, to our use of numerous fresh ingredients, and we are able to sell most of our inventory items before payment is due to the supplier of such items.

In the first twenty-four weeks of fiscal 2024, we completed the closing of $21.3 million of Series I Convertible Preferred Stock, representing the sale of an aggregate of 850,648 shares of our Series I Convertible Preferred Stock at a purchase price of $25.00 per share. In connection with Closing, the shares of Series I Convertible Preferred Stock were automatically cancelled and extinguished and converted into the right to receive shares of New Pinstripes Class A Common Stock, in accordance with the Business Combination Agreement.

Based on our current operating plan, we believe our existing cash and cash equivalents, additional cash from the Business Combination (primarily the proceeds from the Oaktree Loan Agreement, as described below), and additional tenant improvement allowances will be sufficient to fund our operating lease obligations, capital expenditures, and working capital needs for at least the next 12 months following the date of this Current Report on Form 8-K. We expect the proceeds from the Oaktree Loan Agreement will also facilitate further growth in our business, including through the development of additional locations. Furthermore, our ability to organically generate cash from continuing operations of existing and new locations will provide additional liquidity and resources beyond the next 12 months following the date of this Current Report on Form 8-K.

Indebtedness

As of October 15, 2023 and April 30, 2023, we had an aggregate of $44.2 million and $37.3 million of indebtedness outstanding under a variety of credit facilities and other instruments, respectively. On March 7, 2023, we borrowed $22.5 million under the Silverview Facility (the “Silverview Term Loan”), which loan is disbursable in two tranches and matures on June 7, 2027. On April 19, 2023, we borrowed $11.5 million under a term loan with GCP II Agent, LLC (the “Granite Creek Term Loan”), which loan matures on April 19, 2028. During the first twenty-four weeks of fiscal 2024, we borrowed an additional $7.5 million under such facilities. On December 29, 2023, we borrowed an additional $5.0 million under the Silverview Facility and $50.0 million under the Oaktree Loan Agreement. Total indebtedness on December 29, 2023 was approximately $99.2 million. The proceeds of the Granite Creek Term Loan were used to finance the purchase of furniture, trade fixtures, equipment and other personal property in connection with five of our new locations (the “Purchased FF&E”). We may enter into further equipment financings from time to time. On June 4, 2021, we issued $5.0 million aggregate principal amount of convertible notes, which convertible notes automatically converted into Pinstripes Common Stock immediately prior to the consummation of the Business Combination and converted into the right to receives shares of New Pinstripes Class A Common Stock, in accordance with the Business Combination Agreement. During Fiscal 2021, we borrowed a total of $3.3 million of PPP Loans, of which $500,000 remained outstanding as of October 15, 2023.

Oaktree Loan Agreement

Also on December 29, 2023, following the Business Combination Pinstripes and the registrant entered into a Loan Agreement (the “Loan Agreement”) with Oaktree Fund Administration, LLC, as agent (the “Agent”) and the lenders party thereto (the “Lenders), providing for a term loan commitment of $50.0 million to Pinstripes (the “Tranche 1 Loan”) from the Lenders. The Loan Agreement provides that:

·              interest on the Tranche 1 Loan accrue on a daily basis calculated based on a 360-day year at a rate per annum equal to (i) 12.5% payable quarterly in arrears, at Pinstripes’ option either in cash or in kind (subject to certain procedures and conditions); provided that the interest payable in respect of any period following December 31, 2024, interest under this clause (i) will be required to be paid solely in cash, plus (ii) 7.5% payable quarterly in arrears, at Pinstripes’ option, either in cash or in kind (subject to certain procedures and conditions);

·              the maturity date of the Tranche 1 Loan is December 29, 2028;

·              the obligations of Pinstripes under the Tranche 1 Loan are unconditionally guaranteed (the “Guarantees”) by Pinstripes Holdings, Inc. and certain other subsidiaries of Pinstripes (collectively, the “Guarantors”);

·              the obligations under the Tranche 1 Loan and the Guarantees are secured by a second lien security interest in substantially all assets of Pinstripes and the Guarantors, subordinate to the first lien security interests of the other senior secured lenders of Pinstripes, and including a pledge of the equity of Pinstripes;

·              Pinstripes and the Guarantors are subject to certain financial covenants that require the Company and its subsidiaries to maintain a minimum specified total net leverage ratio, beginning on January 6, 2025 and thereafter throughout the term of the loan as follows:

January 6, 2025	6.00:1.00
January 7, 2025 – January 4, 2026	5.00:1.00
January 5, 2026 – January 3, 2027	4.50:1.00
January 4, 2027 – January 2, 2028	4.00:1.00
After January 2, 2028	3.75:1.00

·              Pinstripes and the Guarantors are subject to negative covenants restricting the activities of Pinstripes and the Guarantors, including, without limitation, limitations on: dispositions; mergers or acquisitions; incurring indebtedness or liens; paying dividends or redeeming stock or making other distributions; making certain investments; and engaging in certain other business transactions;

·              any prepayment of the Tranche 1 Loan prior to its maturity date will be subject to a customary “make-whole” premium calculated using a discount rate equal to the yield on comparable Treasury securities plus 50 basis points; and

·              in connection with the Tranche 1 Loan Closing, the Lenders were granted fully detachable warrants exercisable for an aggregate of 2,500,000 shares of Class A Common Stock, at a strike price equal to $0.01 per share (the “Tranche 1 Warrants”). In the event that the volume-weighted average price per share of Class A Common Stock during the period commencing on the 91st day after Tranche 1 Loan Closing and ending 90 days thereafter is less than $8.00 per share, the Lenders will be granted additional Tranche 1 Warrants exercisable for an aggregate of 187,500 shares of Class A Common Stock, and in the event that the volume-weighted average price per share of New Pinstripes Class A Common Stock during the period commencing on the 91st day after Tranche 1 Loan Closing and ending 90 days thereafter is less than $6.00 per share, the Lenders will instead be granted additional Tranche 1 Warrants exercisable for 412,500 shares of Class A Common Stock. The Loan Agreement further provides that (i) the Tranche 1 Warrants may be exercised at any time after the Tranche 1 Loan Closing, and prior to the date that is ten years from the Tranche 1 Loan Closing and (ii) subject to customary exceptions, the Lenders will agree not to transfer, assign or sell any Tranche 1 Loan Warrants, or the shares of Class A Common Stock underlying such Tranche 1 Loan Warrants, until twelve months after the Tranche 1 Loan Closing.

The Loan Agreement also provides that the Lenders will have the option at their sole discretion and election, but not the obligation, subject to satisfaction of certain conditions, to fund an additional loan of $40.0 million (the “Tranche 2 Loans”) no earlier than nine months and no later than 12 months following the Tranche 1 Loan Closing. The Loan Agreement provides that in connection with the funding of Tranche 2 Loans, the Lenders will be granted additional warrants exercisable for an aggregate of 1,750,000 shares of Class A Common Stock, at a strike price equal to $0.01 per share (the “Tranche 2 Warrants” and, together with the Tranche 1 Warrants, the “Oaktree Warrants”) and that in the event that the volume-weighted average price per share of Class A Common Stock during the period commencing on the 91st day after the Tranche 1 Loan Closing and ending 90 days thereafter is less than $6.00 per share, the Lenders will instead be granted Tranche 2 Warrants exercisable for an aggregate of 1,900,000 shares Class A Common Stock, at a strike price equal to $0.01 per share. The Oaktree Warrants will be exercisable on a cashless basis and the Company will provide for the registration for resale of the shares of Class A Common Stock underlying the Oaktree Warrants.

The Loan Agreement also provides that the Agent will have the right to either appoint a director to the Board of Directors of the Company (the “Board”) or an observer to the Board, at the election of the Agent. The Agent will initially elect to appoint an observer to the Board.

Silverview Loan Agreement Amendment and Joinder

On December 29, 2023, Pinstripes, the other guarantors party thereto, Silverview Credit Partners LP, as agent (“Silverview”), and the lenders party thereto entered into the Fifth Amendment (the “Fifth Amendment”) to the Loan Agreement, dated as of March 7, 2023 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Silverview Loan Agreement”) and Second Amendment to Pledge and Security Agreement. On December 29, 2023 Pinstripes Holdings, Inc. (“Holdings”) also entered into that certain Omnibus Joinder (the “Joinder”) with Silverview pursuant to which Holdings agreed to become a party to (i) that certain continuing Guaranty Agreement, dated Mach 7, 2023 among Pinstripes, the other guarantors defined therein, and Silverview and (ii) Pledge and Security Agreement, dated Mach 7, 2023 among Pinstripes and the other grantors (as defined therein). Pursuant to the Fifth Amendment, the Silverview Loan Agreement was modified to (x) permit the transactions contemplated in connection with the Business Combination, (y) permit the Tranche 1 Loan, subject to the terms of an intercreditor agreement between Silverview and Oaktree Fund Administration, LLC, and (z) conform the representations, warranties, and financial covenants owed by Pinstripes to Silverview to be substantially similar to those set forth in the Tranche 1 Loan. In connection with the Joinder, Holdings agreed to guarantee payment in full of the amounts owed by Pinstripes pursuant to the Silverview Loan Agreement and granted a first lien security interest and pledge of all shares of stock of Pinstripes held by Holdings.

On December 29, 2023, Pinstripes also borrowed an additional $5.0 million pursuant to the Silverview Loan Agreement.

Granite Creek Loan Agreement Amendment and Joinder

On December 29, 2023, Pinstripes, GCCP II Agent, LLC, as agent (“Granite Creek”) and the lenders party thereto entered into Amendment No. 2 to (the “Amendment No. 2”) to the Term Loan and Security Agreement, dated as of April 19, 2023 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Granite Creek Loan Agreement”). On December 29, 2023, Holdings also entered into that certain Guaranty with Granite Creek pursuant to which Holdings has guaranteed payment of amounts owed by Pinstripes pursuant to the Granite Creek Loan Agreement. Pursuant to Amendment No. 2, the Granite Creek Loan Agreement was modified to (i) permit the transactions contemplated in connection with the Business Combination, and (ii) permit the Tranche 1 Loan, subject to the terms of an intercreditor agreement between Granite Creek and Oaktree Fund Administration, LLC.

For further discussion of our indebtedness, see “Indebtedness of Pinstripes” in the defintive proxy statement/consent solicitation statement/prospectus.

Redeemable Convertible Preferred Stock

As of October 15, 2023, we had nine classes of preferred stock: Series A, B, C, D, E, F, G, H and I (collectively, the “Preferred Stock”). In the first twenty-four weeks of fiscal 2024, we completed the closing of the sale of an aggregate of 850,648 shares of our Series I Convertible Preferred Stock at a purchase price of $25.00 per share. The common stock and Preferred Stock voted on all matters as one class, with each share of common stock and each share of the Preferred Stock being entitled to one vote, and all have a par value of $0.01. Each share of each series of Preferred Stock was convertible at any time into shares of Pinstripes Common Stock at a ratio of one to one. Each share of Preferred Stock converted to a share of Pinstripes Common Stock in connection with the Business Combination and such shares of Pinstripes Common Stock were automatically cancelled and extinguished and converted into the right to receive shares of New Pinstripes Common Stock in accordance with the Business Combination Agreement.

Warrants

As of October 15, 2023 and April 30, 2023, we had 532,179 and 483,649, respectively, of warrants outstanding with certain financing providers in connection with the issuance of certain debt and leasing obligations and other service providers. Upon surrender of the warrants, the holder was entitled to purchase one share of Pinstripes Common Stock at the predetermined exercise price, as defined in the warrant agreement, ranging from $0.01 to $10.00. The warrants expired at the earlier of 10 years from the date of issue (various dates during fiscal years 2022 through 2028) or upon consummation of an initial public offering by Pinstripes or certain other company transactions. During the first twenty-four weeks of fiscal 2024, there were no warrants exercised. During the fiscal year ended April 30, 2023, there were no warrants exercised. Each outstanding warrant automatically converted to shares Pinstripes Common Stock upon consummation of the Business Combination and such shares of Pinstripes Common Stock were automatically cancelled and extinguished and converted into the right to receive shares of New Pinstripes Common Stock in accordance with the Business Combination Agreement.

Cash Flows

The following table summarizes our cash flows for the periods indicated:

	Twenty-Four Weeks Ended
(dollar amounts in thousands)	October 15, 2023			October 9, 2022
Net cash (used in) operating activities	$	(15,924	)	$	(997	)
Net cash (used in) investing activities		(9,793	)		(3,539	)
Net cash provided by (used in) financing activities		25,272			(893	)
Net (decrease) increase in cash and cash equivalents	$	(455	)	$	3,478

Operating Activities ($ in thousands)

Net cash used in operating activities was $15,924 for the twenty-four weeks ended October 15, 2023 compared to $997 for the twenty-four weeks ended October 9, 2022. The increase in net cash used in operating activities was due to a higher operating loss driven by higher pre-opening expenses and other store operating expenses in the twenty-four weeks ended October 15, 2023 as compared to the twenty-four weeks ended October 9, 2022.

Investing Activities ($ in thousands)

Net cash used in investing activities was $9,793 for the twenty-four weeks ended October 15, 2023 compared to $3,539 for the twenty-four weeks ended October 9, 2022. Our purchase of property and equipment of $5,244, increased in the twenty-four weeks ended October 15, 2023 from $579 in the twenty-four weeks ended October 9, 2022 in connection with construction of six locations that are expected to open in the remainder of fiscal 2024.

Financing Activities ($ in thousands)

Net cash provided by financing activities was $25,272 for the twenty-four weeks ended October 15, 2023 compared to net cash used in financing activities of $893 for the twenty-four weeks ended October 9, 2022. The primary component of net cash provided by financing activities for the twenty-four weeks ended October 15, 2023 was proceeds from the issuance of the Series I Preferred Stock and incurrence of indebtedness under the Silverview Facility and the Granite Creek Facility.

Contractual Obligations and Commitments

Our contractual obligations and commitments as of October 15, 2023 were as follows:

(in thousands)	Total		Less than 1 year		1 – 3 years		3 – 5 years		More than 5 years
Operating lease obligations	$	253,684	$	22,187	$	53,345	$	46,207	$	131,945
Long-term debt (principal)	$	43,484	$	1,055	$	13,176	$	28,753	$	500
Interest Expense	$	19,176	$	5,536	$	9,467	$	3,759	$	414
	$	316,344	$	28,778	$	75,988	$	78,719	$	132,859

Off-Balance Sheet Arrangements

As of the date of this Current Report on Form 8-K, we do not have any off-balance sheet arrangements.

Critical Accounting Policies and Estimates

The preparation of financial statements in conformity with GAAP requires us to make certain estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the balance sheet date, as well as reported amounts of revenue and expenses during the reporting period. Our most significant estimates and judgments involve difficult, subjective, or complex judgements made by management. Actual results may differ from these estimates. To the extent that there are differences between our estimates and actual results, our future financial statement presentation, financial condition, results of operations, and cash flows will be affected. We believe that the accounting policies described below involve a greater degree of judgment and complexity. Accordingly, these are the policies we believe are the most critical to aid in fully understanding and evaluating our financial condition and results of operations. For further information, see Note 2 to our audited consolidated financial statements included in the definitive proxy statement/consent solicitation statement/prospectus.

Leases

We have made an accounting policy election applicable to all asset classes not to record leases with an initial term of twelve months or less on the balance sheet as allowed within ASC 842. We lease all of our locations from third parties. For leases with an initial term greater than twelve months, a related lease liability is recorded on the balance sheet at the present value of future fixed payments discounted at our estimated fully collateralized borrowing rate corresponding with the lease term (i.e. incremental borrowing rate). In addition, a right-of-use asset is recorded as the initial amount of the lease liability, plus any initial direct costs incurred and lease prepayment, less any tenant improvement allowance incentives received. Most of our leases include one or more options to renew, with terms that can extend from five to ten years. To determine the expected lease term, we excluded all options to renew as it is not reasonably certain we would exercise these options.

Lease payments include fixed payments and variable payments for common area maintenance costs, real estate taxes, insurance related to leases or additional rent based upon sales volume (variable lease cost). Variable lease costs are expensed as incurred whereas fixed lease costs are recorded on a straight-line basis over the life of the lease. We do not separate lease and non-lease components (e.g. common area maintenance), which is a policy maintained for all asset classes. Leases do not contain any material residual value guarantee or material restrictive covenants.

The discount rate used to determine the amount of right-of-use assets and lease liabilities is the interest rate implicit in the lease, when known. If the rate is not implicit in the lease, we use our incremental borrowing rate, which is derived based on available information at the commencement date.

Impairment of Long-lived Assets

We review long-lived assets, such as property and equipment, and operating lease right-of-use assets with definitive lives, for impairment annually or whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. We perform our long-lived asset impairment analysis by grouping assets and liabilities at the individual store level, since this is the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities and evaluate the asset group against the sum of the undiscounted future cash flows.

In determining the undiscounted future cash flows, we consider historical cash flows and other relevant factors and circumstances, including the maturity of the store, changes in the economic environment, unfavorable changes in business climate and future operating plans. The significant inputs used in determining our estimate of the projected undiscounted future cash flows include future revenue growth, changes in store labor and operating costs, future lease payments and projected operating margins as well as the estimate of the remaining useful life of the assets.

Revenue Recognition

We recognize food and beverage revenues and recreation revenue when payment is tendered at the point of sale as the performance obligation has been satisfied. Food and beverage revenues include the sale of food and beverage products. Recreation revenue includes bowling and bocce sales. We recognize revenues net of discounts and taxes. We defer event deposits received from guests and recognized such deposits as revenue when the event is held. Event deposits received from customers in advance are included in amounts due to customers, and we recognize revenues from events when the event takes place.

We sell gift cards, which do not have expiration dates, and do not deduct non-usage fees from outstanding gift card balances. We record gift card sales as a liability and recognized as revenue upon redemption by the customer. For unredeemed gift cards that we expect to be entitled to breakage and for which there is no legal obligation to remit the unredeemed gift card balances to the relevant jurisdictions, we recognize expected breakage as revenue in proportion to the pattern of redemption by the customers. The determination of the gift card breakage is based on our specific historical redemption patterns. The contract liability related to our gift cards is included in amounts due to customers in the Consolidated Balance Sheets. We report revenues net of sales tax collected from customers. We include sales tax collected in other accrued liabilities on the Consolidated Balance Sheets until the taxes are remitted to the appropriate taxing authorities.

Classification of Instruments as Liabilities or Equity

We have applied ASC 480, “Distinguishing Liabilities from Equity,” to classify as a liability or equity certain redeemable and/or convertible instruments, including the Company’s preferred stock. We determine the liability classification if the financial instrument is mandatorily redeemable for cash or by issuing a variable number of equity shares.

If we determine that a financial instrument should not be classified as a liability, we then determine whether the financial instrument should be presented between the liability section and the equity section of the balance sheet as temporary equity. We determine financial instruments as temporary equity if the redemption of the preferred stock or other financial instrument is outside the control of the Company. Otherwise, we account for the financial instrument as permanent equity.

Emerging Growth Company

The JOBS Act contains provisions that, among other things, relax certain reporting requirements for qualifying public companies for up to five years or until we are no longer an emerging growth company. We expect to qualify as an “emerging growth company” and under the JOBS Act are allowed to comply with new or revised accounting pronouncements based on the effective date for private (not publicly traded) companies. We have elected not to opt out of such extended transition period, and as a result, we may not comply with new or revised accounting standards on the relevant dates on which adoption of such standards is required for non-emerging growth companies. As a result, the consolidated financial statements may not be comparable to those of companies that comply with new or revised accounting pronouncements as of public company effective dates.

Quantitative and Qualitative Disclosure about Market Risk

Commodities Price Risk

We are exposed to commodity price risks. Many of the ingredients we use to prepare our food, as well as our packaging materials and utilities to run our locations, are ingredients or commodities that are affected by the price of other commodities, exchange rates, foreign demand, weather, seasonality, production, availability and other factors outside our control. We work closely with our suppliers and use a mix of forward pricing protocols under which we agree with our supplier on fixed prices for deliveries at some time in the future, fixed pricing protocols under which we agree on a fixed price with our supplier for the duration of that protocol, formula pricing protocols under which the prices we pay are based on a specified formula related to the prices of the goods, such as spot prices, and range forward protocols under which we agree on a price range for the duration of that protocol. Generally, our pricing agreements with suppliers range from one to three years, depending on the outlook for prices of the particular ingredient. In some cases, we have minimum purchase obligations. We have tried to increase, where practical, the number of suppliers for our ingredients, which we believe can help mitigate pricing volatility, and we follow industry news, trade issues, exchange rates, foreign demand, weather, crises, and other world events that may affect our ingredient prices. Increases in ingredient prices could adversely affect our results if we choose for competitive or other reasons not to increase menu prices at the same rate at which ingredient costs increase, or if menu price increases result in customer resistance. We also could experience shortages of key ingredients if our suppliers need to close or restrict operations due to unforeseen events, such as during the COVID-19 outbreak.

Interest Rate Risk

An increase in interest rates could impact our ability to secure financing to fund growth initiatives, such as growth capital expenditures and acquisitions. In addition, rising interest rates could also limit our ability to refinance our existing debt obligations as they come due or result in us paying higher interest rates upon refinancing our existing debt obligations. We do not currently have floating rate debt.

Inflation Risk

We have a substantial number of hourly employees who are paid wage rates at or based on the applicable federal, state, or local minimum wage, and increases in the minimum wage, the elimination of the sub-minimum wage applicable to tipped positions, and other upward pressure on wage rates, will increase our labor costs. While we have been able to partially offset inflation and other changes in the costs of core operating resources by gradually increasing menu prices, coupled with more efficient purchasing practices, productivity improvements and greater economies of scale, there can be no assurance that we will be able to continue to do so in the future. From time to time, competitive conditions could limit our menu pricing flexibility. In addition, macroeconomic conditions could make additional menu price increases imprudent. There can be no assurance that future cost increases can be offset by increased menu prices or that increased menu prices will be fully absorbed by our customers without any resulting change to their visit frequencies or purchasing patterns. In addition, there can be no assurance that we will generate same stores sales growth in an amount sufficient to offset inflationary or other cost pressures.

EX-99.4

Exhibit 99.4

Pinstripes Completes Business Combination with Banyan Acquisition Corporation and Will Begin Trading on New York Stock Exchange

Pinstripes Class A Common Stock and Warrants to Trade on NYSE on January 2, 2024, under the Symbols “PNST and “PNST WS”

Best-in-Class Experiential Dining and Entertainment Brand Has Raised More Than $70 Million, Including $50 Million in Senior Secured Financing from Oaktree

Company to Ring the NYSE Opening Bell on January 19, 2024

Northbrook, il. – December 29, 2023 – Pinstripes, Inc., a best-in-class experiential dining and entertainment brand combining bistro, bowling, bocce and private event space, and Banyan Acquisition Corporation (“Banyan”) (NYSE: BYN) today announced they have closed their previously announced business combination (“the Business Combination”), which was approved by Banyan’s stockholders at a meeting on December 27, 2023.

Pursuant to the Business Combination, Pinstripes has become a wholly-owned subsidiary of Banyan, which has changed its name to Pinstripes Holdings, Inc. (together with Pinstripes, Inc, “Pinstripes”). Pinstripes’ Class A common stock and warrants will begin trading on NYSE under the ticker symbols “PNST” and “PNST WS,” respectively, on January 2, 2024. Pinstripes’ Founder and Chief Executive Officer, Dale Schwartz, and the rest of the current management team of Pinstripes, will continue in their management roles.

In connection with the Business Combination, Pinstripes has raised more than $70 million in gross proceeds to support the Company’s strategic growth plans and the opening of additional locations. As part of such gross proceeds, Pinstripes has obtained a $50 million senior secured loan due 2028 (“2028 Loan”) from funds managed by Oaktree Capital Management, L.P. (“Oaktree”), on terms substantially the same as those set forth in the non-binding term sheet disclosed in a current report on Form 8-K filed by Banyan on December 19, 2023. Oaktree will have the option at its sole discretion and election, subject to satisfaction of certain conditions, to loan an additional $40 million in aggregate principal amount to Pinstripes no earlier than nine months and no later than 12 months following the 2028 Loan closing.

“Today is a significant milestone for Pinstripes. Completing our business combination with Banyan and introducing Pinstripes to the public markets is a tremendous achievement and the next chapter in our business journey,” said Mr. Schwartz. “We have achieved strong results to date, and this transaction will help fuel our growth as we continue to scale and open additional Pinstripes locations. On behalf of Pinstripes, I want to thank Banyan for their strong partnership, Oaktree for their financial commitment, our Pinstripes team for their passion and dedication, and our guests who for seventeen years have joined us for countless celebrations and magical moments.”

Jerry Hyman, Chairman of Banyan stated: “We formed Banyan to identify a strong business with promising growth in the foodservice industry and take them to the public markets, and after partnering with Pinstripes on this transaction, we are proud to say we have accomplished this goal. Pinstripes is a leader in experiential dining and as consumers demand multidimensional dining options in this post-COVID world, Pinstripes will continue scaling as an example for all others to follow. Once more, we’re thrilled to have played a key role in taking Pinstripes public and are confident Dale and the entire exceptional management team will continue to execute on their robust growth plans and strategy and I’m looking forward to serving on the Pinstripes board.”

To celebrate the completion of the Business Combination, Pinstripes will be ringing the Opening Bell at the NYSE at 9:30 a.m. ET on January 19, 2024. A live stream of the event and replay can be accessed by visiting https://www.nyse.com/bell.

Additional information regarding Pinstripes and the closing of the Business Combination, including the loan from Oaktree, will be included in a current report on Form 8-K to be filed with the Securities and Exchange Commission.

Management and Board of Directors

Following the Business Combination, Mr. Schwartz will serve as Chairman of the Board of Directors, in addition to President and Chief Executive Officer, and Tony Querciagrossa will continue as Chief Financial Officer of Pinstripes. In addition, Jack Greenberg, Dr. Daniel Goldberg, Larry Kadis, George Koutsogiorgas and Diane Aigotti, along with Jerry Hyman, will serve as independent directors on the board of Pinstripes.

Advisors

William Blair & Company, L.L.C. served as financial advisor, capital markets advisor and placement agent to Banyan. BTIG, LLC served as capital markets advisor and placement agent to Banyan. Oppenheimer & Co. Inc., Roth Capital Partners and Stephens Inc. served as capital markets advisors to Pinstripes. DLA Piper LLP (US) served as legal counsel to William Blair & Company, L.L.C. and BTIG, LLC. Katten Muchin Rosenman LLP acted as legal advisor to Pinstripes, Kirkland & Ellis LLP acted as legal advisor to Banyan and White & Case LLP acted as legal advisor to Oaktree.

About Pinstripes

Born in the Midwest, Pinstripes’ best-in-class venues offer a combination of made-from-scratch dining, bowling and bocce and flexible private event space. From its full-service Italian-American food and beverage menu to its gaming array of bowling and bocce, Pinstripes offers multi-generational activities seven days a week. Its elegant and spacious 25,000 – 38,000 square foot venues can accommodate groups of 20 to 1,500 people for private events, parties, and celebrations. For more information on Pinstripes, please visit www.pinstripes.com.

About Oaktree

Oaktree is a leader among global investment managers specializing in alternative investments, with $183 billion in assets under management as of September 30, 2023. The firm emphasizes an opportunistic, value-oriented and risk-controlled approach to investments in credit, private equity, real assets and listed equities. The firm has over 1,200 employees and offices in 21 cities worldwide. For additional information, please visit Oaktree’s website at http://www.oaktreecapital.com/.

Cautionary Note Regarding Forward-Looking Statements

Certain statements in this press release constitute “forward-looking statements.” Such forward-looking statements are often identified by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “predict,” “forecasted,” “projected,” “potential,” “seem,” “future,” “outlook,” and similar expressions that predict or indicate future events or trends or otherwise indicate statements that are not of historical matters, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements and factors that may cause actual results to differ materially from current expectations include, but are not limited to: the ability of Pinstripes to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition, the ability of Pinstripes to grow and manage growth profitably, maintain key relationships and retain its management and key employees; risks related to the uncertainty of the projected financial information with respect to Pinstripes; risks related to Pinstripes’ current growth strategy; Pinstripes’ ability to successfully open and integrate new locations; risks related to the substantial indebtedness of Pinstripes; risks related to the capital intensive nature of Pinstripes’ business; the ability of Pinstripes’ to attract new customers and retain existing customers; the impact of the COVID-19 pandemic, including the resulting labor shortage and inflation, on Pinstripes; and other economic, business and/or competitive factors. The foregoing list of factors is not exhaustive.

Stockholders and prospective investors should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the definitive joint proxy statement/consent solicitation statement/prospectus filed by Banyan in connection with the Business Combination, and other documents filed by Pinstripes from time to time with the SEC.

Stockholders and prospective investors are cautioned not to place undue reliance on these forward-looking statements, which only speak as of the date made, are not a guarantee of future performance and are subject to a number of uncertainties, risks, assumptions and other factors, many of which are outside the control of Pinstripes. Pinstripes expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in the expectations of Pinstripes with respect thereto or any change in events, conditions or circumstances on which any statement is based.

Contacts:

Investor Relations:
ICR for Pinstripes

PinstripesIR@icrinc.com

Media Relations:

ICR for Pinstripes

PinstripesPR@icrinc.com

XML

Cover	Dec. 29, 2023
Entity Addresses [Line Items]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Dec. 29, 2023
Current Fiscal Year End Date	--04-28
Entity File Number	001-41236
Entity Registrant Name	PINSTRIPES HOLDINGS, INC.
Entity Central Index Key	0001852633
Entity Tax Identification Number	86-2556699
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	1150 Willow Road
Entity Address, City or Town	Northbrook
Entity Address, State or Province	IL
Entity Address, Postal Zip Code	60062
City Area Code	847
Local Phone Number	480-2323
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	true
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Common Stock [Member]
Entity Addresses [Line Items]
Title of 12(b) Security	Class A common stock, par value $0.0001 per share
Trading Symbol	PNST
Security Exchange Name	NYSE
Warrant [Member]
Entity Addresses [Line Items]
Title of 12(b) Security	Redeemable Warrants, each exercisable for one share of Class A common stock at an exercise price of $11.50 per share
Trading Symbol	PNST.WS
Security Exchange Name	NYSE
Former Address [Member]
Entity Addresses [Line Items]
Entity Address, Address Line One	Banyan Acquisition Corporation
Entity Address, Address Line Two	400 Skokie Blvd
Entity Address, Address Line Three	Suite 820
Entity Address, City or Town	Northbrook
Entity Address, State or Province	IL
Entity Address, Postal Zip Code	60062