false
--04-28
0001852633
0001852633
2023-12-29
2023-12-29
0001852633
dei:FormerAddressMember
2023-12-29
2023-12-29
0001852633
us-gaap:CommonStockMember
2023-12-29
2023-12-29
0001852633
us-gaap:WarrantMember
2023-12-29
2023-12-29
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
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 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 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. |
|
|
|
* 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 |
|
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.
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.
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.
(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.
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.
(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.
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.
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);
(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).
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.
(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).
(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.
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.
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.
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.
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 |
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.
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.
(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).
(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.
(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.
(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.
(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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(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.
(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. |
| (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.
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; |
| (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. |
| (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. |
(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.
(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 (2nd) 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.
(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)
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: |
|
|
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%
EXHIBIT A
NOTICE OF EXERCISE
(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: |
|
|
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: |
|
|
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 |
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 |
|
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
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 29th 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).
1.2 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;
(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).
(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.
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).
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.
(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.
(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
(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.
(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.
(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).
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;
(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;
(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.
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.
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.
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.
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.
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.
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.
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;
(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.
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.
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,
(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.
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.
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 91st 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 91st 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 91st 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.
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;
(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 (91st)
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;
(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.
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.
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;
(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);
(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.
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.
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.
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.
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.
(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.
(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.
(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.
(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.
(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.
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.
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.
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.
(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.
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.]
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 |
The “Default Margin”
is 2.00% per annum.
(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.
| 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;
(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.
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:
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 |
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
28th 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
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.]
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.]
|
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 |
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.
“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”.
“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
(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.
“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 (91st) 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).
“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.
“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.
“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.
“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 30th 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.
“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.
“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.
“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%.
“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.
“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.
“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);
(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.
“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.
“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.
“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.
“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.
“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.
“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).
“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 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, 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.]
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.
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]
Name:
Title:
Date: ________ __, 20[●]
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]
Name:
Title:
Date: ________ __, 20[●]
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]
Name:
Title:
Date: ________ __, 20[●]
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]
Name:
Title:
Date: ________ __, 20[●]
EXHIBIT D
FORM OF WARRANT
[See attached]
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.
(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.
(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.
(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.
(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.
(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.
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.
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.
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]
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]
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:
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.
“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).
“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.
“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.
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
(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.
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.
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.
(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.
(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.
(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.
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.
(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.
(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.
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.
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
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.
(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.
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.
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.
(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.
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.
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.
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.
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.
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.
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]
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 |
|
AGENT: |
|
|
|
OAKTREE FUND ADMINISTRATION, LLC,
as Agent |
|
|
|
By: |
/s/ Vaibhav Kumar |
|
Name: Vaibhav Kumar |
|
Title: Partner |
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 |
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.
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.
(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]
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 |
|
AGENT: |
|
|
|
SILVERVIEW CREDIT PARTNERS LP |
|
|
|
By: |
/s/ Vaibhav Kumar |
|
Name: |
Vaibhav Kumar |
|
Title: |
Partner |
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.
"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;
(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.
(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.
(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.
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;
(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.
(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]
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.)
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.
(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.
(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.
(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.
(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.
(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.
(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.
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.
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.
(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]
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 |
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 |
|
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.
“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.
“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).
(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.
(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.
(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.
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.
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:
(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.
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.
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.
[The remainder of this page intentionally
left blank]
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 |
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 (2nd) 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.
(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.
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.
(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.
(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 (5th) Business Day following the date on which such information is requested from
such holder and (ii) the third (3rd) 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);
(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);
(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.
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 (10th) anniversary of the Closing Date.
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.
(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).
(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.
(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.
(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 (30th) 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.
(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.
(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.
(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
(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.
* * * * *
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 |
|
/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 |
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 |
|
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: |
|
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 (10th) anniversary of date that this Plan is effective, but Awards granted prior
to such tenth (10th) anniversary may extend beyond that date.
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 |
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.
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 (3rd) 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
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
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
Exhibit 21.1
List of Subsidiaries
The subsidiary of Pinstripes Holdings, Inc.
is as follows:
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.
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.
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.
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.
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.
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.
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 | |
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 | |
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.
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 (“2nd 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.
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.
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. |
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.
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
v3.23.4
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
|
Elected Not To Use the Extended Transition Period |
false
|
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
|
X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
+ Details
Name: |
dei_AmendmentFlag |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionEnd date of current fiscal year in the format --MM-DD.
+ References
+ Details
Name: |
dei_CurrentFiscalYearEndDate |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:gMonthDayItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
+ Details
Name: |
dei_DocumentPeriodEndDate |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:dateItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
+ Details
Name: |
dei_DocumentType |
Namespace Prefix: |
dei_ |
Data Type: |
dei:submissionTypeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
+ References
+ Details
Name: |
dei_EntityAddressAddressLine1 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 2 such as Street or Suite number
+ References
+ Details
Name: |
dei_EntityAddressAddressLine2 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 3 such as an Office Park
+ References
+ Details
Name: |
dei_EntityAddressAddressLine3 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Definition
+ References
+ Details
Name: |
dei_EntityAddressCityOrTown |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCode for the postal or zip code
+ References
+ Details
Name: |
dei_EntityAddressPostalZipCode |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the state or province.
+ References
+ Details
Name: |
dei_EntityAddressStateOrProvince |
Namespace Prefix: |
dei_ |
Data Type: |
dei:stateOrProvinceItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionLine items represent financial concepts included in a table. These concepts are used to disclose reportable information associated with domain members defined in one or many axes to the table.
+ References
+ Details
Name: |
dei_EntityAddressesLineItems |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:stringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityCentralIndexKey |
Namespace Prefix: |
dei_ |
Data Type: |
dei:centralIndexKeyItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionIndicate if registrant meets the emerging growth company criteria.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityEmergingGrowthCompany |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
+ Details
Name: |
dei_EntityFileNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:fileNumberItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
+ References
+ Details
Name: |
dei_EntityIncorporationStateCountryCode |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarStateCountryItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityRegistrantName |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityTaxIdentificationNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:employerIdItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionLocal phone number for entity.
+ References
+ Details
Name: |
dei_LocalPhoneNumber |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 13e -Subsection 4c
+ Details
Name: |
dei_PreCommencementIssuerTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 14d -Subsection 2b
+ Details
Name: |
dei_PreCommencementTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTitle of a 12(b) registered security.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b
+ Details
Name: |
dei_Security12bTitle |
Namespace Prefix: |
dei_ |
Data Type: |
dei:securityTitleItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the Exchange on which a security is registered.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection d1-1
+ Details
Name: |
dei_SecurityExchangeName |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarExchangeCodeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Section 14a -Number 240 -Subsection 12
+ Details
Name: |
dei_SolicitingMaterial |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
+ References
+ Details
Name: |
dei_TradingSymbol |
Namespace Prefix: |
dei_ |
Data Type: |
dei:tradingSymbolItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Securities Act -Number 230 -Section 425
+ Details
Name: |
dei_WrittenCommunications |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Details
Name: |
us-gaap_StatementClassOfStockAxis=us-gaap_CommonStockMember |
Namespace Prefix: |
|
Data Type: |
na |
Balance Type: |
|
Period Type: |
|
|
X |
- Details
Name: |
us-gaap_StatementClassOfStockAxis=us-gaap_WarrantMember |
Namespace Prefix: |
|
Data Type: |
na |
Balance Type: |
|
Period Type: |
|
|
Pinstripes (NYSE:PNST)
과거 데이터 주식 차트
부터 10월(10) 2024 으로 11월(11) 2024
Pinstripes (NYSE:PNST)
과거 데이터 주식 차트
부터 11월(11) 2023 으로 11월(11) 2024