Exhibit 10.5


 


BANYAN ACQUISITION CORPORATION


 


400 Skokie Blvd, Suite 820


Northbrook, Illinois 60062


 


	Banyan Acquisition Sponsor LLC	March 16, 2021







400 Skokie Blvd


Suite 820


Northbrook, Illinois 60062


 


RE:      Securities
Subscription Agreement


 


Ladies and Gentlemen:


 


Banyan Acquisition Corporation, a Delaware corporation
(the “Company”), is pleased to accept the offer Banyan Acquisition Sponsor LLC, a Delaware limited liability company
(the “Subscriber” or “you”), has made to subscribe for 8,625,000 shares of Class B common stock
(the “Shares”), $0.0001 par value per share, of the Company (the “Class B Shares”), up to 1,125,000
of which are subject to forfeiture by you if the underwriters of the Company’s initial public offering of its securities (“IPO”),
if any, do not fully exercise their over-allotment option (the “Over-allotment Option”). For the purposes of this agreement
(this “Agreement”), references to “Common Stock” are to, collectively, the Class B Shares and
the Company’s shares of Class A common stock, $0.0001 par value per share (the “Class A Shares”). Upon
certain terms and conditions, the Class B Shares will automatically convert into Class A Shares on a one-for-one basis, subject
to adjustment. Unless the context otherwise requires, as used herein “Shares” shall be deemed to include any Class A
Shares issued upon conversion of the Class B Shares comprising the Shares. The terms on which the Company is willing to issue the
Shares to the Subscriber, and the Company and the Subscriber’s agreements regarding such Shares, are as follows:


 


1. Subscription of Shares.


 


For the sum of $25,000, which the Company acknowledges
receiving in cash, the Company hereby issues the Shares to the Subscriber, and the Subscriber hereby subscribes for the Shares from the
Company, subject to forfeiture, on the terms and subject to the conditions set forth in this Agreement. Concurrently with the Subscriber’s
execution of this Agreement, the Company shall effect the delivery of the Shares in book-entry form.


 


2. Representations, Warranties and Agreements.


 


2.1 Subscriber’s Representations, Warranties
and Agreements. To induce the Company to issue the Shares to the Subscriber, the Subscriber hereby represents and warrants to the
Company and agrees with the Company as follows:


 






    


     


    

 


2.1.1 No Government Recommendation or Approval.
The Subscriber understands that no federal or state agency has passed upon or made any recommendation or endorsement of the offering of
the Shares.


 


2.1.2 No Conflicts. The execution, delivery
and performance of this Agreement and the consummation by the Subscriber of the transactions contemplated hereby do not violate, conflict
with or constitute a default under (i) the limited liability company agreement of the Subscriber, (ii) any agreement, indenture
or instrument to which the Subscriber is a party or (iii) any law, statute, rule or regulation to which the Subscriber is subject,
or any agreement, order, judgment or decree to which the Subscriber is subject.


 


2.1.3 Formation, Registration and Authority.
The Subscriber is a Delaware limited liability company formed and registered, validly existing and in good standing under the laws of
the State of Delaware and possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement.
Upon execution and delivery by you, this Agreement is a legal, valid and binding agreement of the Subscriber, enforceable against the
Subscriber in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in equity).


 


2.1.4 Experience, Financial Capability and Suitability.
The Subscriber is (i) sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the
Shares and (ii) able to bear the economic risk of its investment in the Shares for an indefinite period of time because the Shares
have not been registered under the Securities Act (as defined below) and therefore cannot be sold unless such transaction is registered
under the Securities Act or an exemption from such registration is available. The Subscriber is capable of evaluating the merits and risks
of its investment in the Company and has the capacity to protect its own interests. The Subscriber must bear the economic risk of this
investment until the Shares are sold pursuant to (i) an effective registration statement under the Securities Act or (ii) an
exemption from registration available with respect to such sale. The Subscriber is able to bear the economic risks of an investment in
the Shares and to afford a complete loss of the Subscriber’s investment in the Shares.


 


2.1.5 Access to Information; Independent Investigation.
Prior to the execution of this Agreement, the Subscriber has had the opportunity to ask questions of and receive answers from representatives
of the Company concerning an investment in the Company, as well as the finances, operations, business and prospects of the Company, and
the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make
this investment, the Subscriber has relied solely on the Subscriber’s own knowledge and understanding of the Company and its business
based upon the Subscriber’s own due diligence investigation and the information furnished pursuant to this paragraph. The Subscriber
understands that no person has been authorized to give any information or to make any representations which were not furnished pursuant
to this Section 2, and the Subscriber has not relied on any other representations or information in making its investment decision,
whether written or oral, relating to the Company, its operations and/or its prospects.


 






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2.1.6 Private Placement. The Subscriber represents
that it is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities
Act of 1933, as amended (the “Securities Act”), and acknowledges the sale contemplated hereby is being made in reliance
on a private placement exemption applicable to “accredited investors” within the meaning of Rule 501(a) of Regulation
D under the Securities Act or similar exemptions under state law.


 


2.1.7 Investment Purposes. The Subscriber
is purchasing and subscribing for the Shares solely for investment purposes, for the Subscriber’s own account and not for the account
or benefit of any other person, and not with a view towards the distribution or dissemination thereof. The Subscriber did not decide to
enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 of Regulation
D under the Securities Act.


 


2.1.8 Restrictions on Transfer; Shell Company.
The Subscriber understands the Shares are being offered in a transaction not involving a public offering within the meaning of the Securities
Act. The Subscriber understands the Shares will be “restricted securities” within the meaning of Rule 144(a)(3) under
the Securities Act, and the Subscriber understands that the book-entries representing the Shares will contain a legend or notation in
respect of such restrictions. If in the future the Subscriber decides to offer, resell, pledge or otherwise transfer the Shares, such
Shares may be offered, resold, pledged or otherwise transferred only pursuant to (i) registration under the Securities Act or (ii) an
available exemption from registration. The Subscriber agrees that if any transfer of its Shares or any interest therein is proposed to
be made, as a condition precedent to any such transfer, the Subscriber may, at the Company’s option, be required to deliver to the
Company an opinion of counsel satisfactory to the Company. Absent registration or an exemption, the Subscriber agrees not to resell the
Shares. The Subscriber further acknowledges that because the Company is a shell company, Rule 144 may not be available to the Subscriber
for the resale of the Shares until at least one year following consummation of the initial business combination of the Company (which
may not occur), despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer
restrictions.


 


2.1.9 No Governmental Consents. No governmental,
administrative or other third party consents or approvals are required or necessary on the part of the Subscriber in connection with the
transactions contemplated by this Agreement.


 


2.2 Company’s Representations, Warranties
and Agreements. To induce the Subscriber to purchase the Shares, the Company hereby represents and warrants to the Subscriber and
agrees with the Subscriber as follows:


 


2.2.1 Incorporation and
Corporate Power. The Company is a Delaware corporation and is qualified to do business in every jurisdiction in which the
failure to so qualify would reasonably be 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 Agreement. Upon execution and delivery by the Company, this Agreement is a legal, valid and binding agreement
of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights
generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in
equity).


 






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2.2.2 No Conflicts. The execution, delivery
and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby do not violate, conflict
with or constitute a default under (i) the Company’s Certificate of Incorporation or Bylaws, as amended to the date hereof
(collectively, the “Organizational Documents”), (ii) any agreement, indenture or instrument to which the Company
is a party or (iii) any law, statute, rule or regulation to which the Company is subject, or any agreement, order, judgment
or decree to which the Company is subject.


 


2.2.3 Title to Shares. Upon issuance in accordance
with, and payment pursuant to, the terms hereof and the Organizational Documents, the Shares will be duly and validly issued as fully
paid and non-assessable. Upon issuance in accordance with, and payment pursuant to, the terms hereof and the Organizational Documents,
the Subscriber will have or receive good title to the Shares, free and clear of all liens, claims and encumbrances of any kind, other
than (i) transfer restrictions hereunder and under the other agreements to which the Shares may be subject, (ii) transfer restrictions
under federal and state securities laws, and (iii) liens, claims or encumbrances imposed due to the actions of the Subscriber.


 


2.2.4 No Adverse Actions. There are no actions,
suits, investigations or proceedings pending, threatened against or affecting the Company which (i) seek to restrain, enjoin, prevent
the consummation of or otherwise affect the transactions contemplated by this Agreement or (ii) question the validity or legality
of any transactions or seek to recover damages or to obtain other relief in connection with any transactions.


 


2.2.5 Authorization. The Class A Shares
issuable upon conversion of the Class B Shares have been duly authorized and reserved for issuance upon such conversion.


 


3. Forfeiture of Shares.


 


3.1 Partial or No Exercise of the Over-allotment
Option. In the event the Over-allotment Option granted to the underwriters of the IPO is not exercised in full, the Subscriber acknowledges
and agrees that it (or, if applicable, it and any transferees of Shares, subject to the terms of the applicable transfer and assignment
agreement) shall forfeit at the time such Over-allotment Option expires (or earlier if the underwriters of the IPO waive their ability
to exercise such Over-allotment Option) any and all rights to such number of Shares (up to an aggregate of 1,125,000 Shares and pro rata
based upon the percentage of the Over-allotment Option exercised) such that immediately following such forfeiture, the number of Shares
will equal 20% of the issued and outstanding Common Stock immediately following the IPO (in each case, not including Class A Shares
issuable upon exercise of any warrants).


 


3.2 Termination of Rights as Stockholder.
If any of the Shares are forfeited in accordance with this Section 3, then after such time the Subscriber (or successor in interest),
shall no longer have any rights as a holder of such forfeited Shares, and the Company shall take such action as is appropriate to cancel
such forfeited Shares.


 






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4. Waiver of Liquidation Distributions; Redemption Rights. In
connection with the Shares purchased and subscribed for pursuant to this Agreement, the Subscriber hereby waives any and all right, title,
interest or claim of any kind in or to any distributions by the Company from the trust account which will be established for the benefit
of the Company’s public stockholders and into which substantially all of the proceeds of the IPO will be deposited (the “Trust
Account”), in the event of a liquidation of the Company upon the Company’s failure to timely complete an initial business
combination. For purposes of clarity, in the event the Subscriber purchases securities in the IPO or in the aftermarket, any Class A
Shares so purchased and subscribed for shall be eligible to receive any liquidating distributions by the Company. However, in no event
will the Subscriber have the right to redeem any shares of Common Stock held by it into funds held in the Trust Account upon the successful
completion of an initial business combination.


 


5. Restrictions on Transfer.


 


5.1 Securities Law Restrictions. In addition
to any restrictions to be contained in that certain letter agreement (commonly known as an “Insider Letter”) dated
on or prior to the closing of the IPO by and among the Subscriber, the Company and the other parties thereto, the Subscriber agrees not
to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Shares unless, prior thereto (a) a registration
statement on the appropriate form under the Securities Act and applicable state securities laws with respect to the Shares proposed to
be transferred shall then be effective or (b) the Company has received, if requested by the Company, an opinion from counsel reasonably
satisfactory to the Company, that such registration is not required because such transaction is exempt from registration under the Securities
Act and the rules promulgated by the Securities and Exchange Commission thereunder and with all applicable state securities laws.


 


5.2 Lock-up. The Subscriber acknowledges
that the Shares will be subject to lock-up provisions (the “Lock-up”) contained in the Insider Letter.


 


5.3 Restrictive Legends. The book entries
representing the Shares shall contain legends or notations thereon substantially to the effect as follows:


 


“THE SECURITIES REPRESENTED HEREBY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST
THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL (IF THE
COMPANY SO REQUESTS), IS AVAILABLE.”


 


“THE SECURITIES REPRESENTED HEREBY ARE SUBJECT
TO A LOCKUP AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCK-UP.”


 






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5.4 Additional Shares
or Substituted Securities. In the event of the declaration of a stock dividend, the declaration of an extraordinary dividend
payable in a form other than Common Stock, a spin-off, a stock split, an adjustment in conversion ratio, a recapitalization or a
similar transaction affecting the Company’s outstanding Common Stock without receipt of consideration, any new, substituted or
additional securities or other property which are by reason of such transaction distributed with respect to any Shares subject to
this Section 5 or into which such Shares thereby become convertible shall immediately be subject to this Section 5 and
Section 3. Appropriate adjustments to reflect the distribution of such securities or property shall be made to the number
and/or class of Shares subject to this Section 5 and Section 3.


 


5.5 Registration Rights. The Subscriber
acknowledges that the Shares are being purchased and subscribed for pursuant to an exemption from the registration requirements of the
Securities Act and will become freely tradable only after certain conditions are met or they are registered pursuant to a registration
rights agreement to be entered into with the Company prior to the closing of the IPO (the “Registration Rights Agreement”).


 


6. Other Agreements


 


6.1 Further Assurances. The Subscriber agrees
to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.


 


6.2 Notices. All notices, statements or
other documents which are required or contemplated by this Agreement shall be in writing and delivered (i) personally or sent by
first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated
in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated
in writing by such party, or (iii) by electronic mail, to the electronic mail address most recently provided to such party or such
other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be
deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation,
if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days
after mailing if sent by mail.


 


6.3 Entire Agreement. This Agreement, together
with the Insider Letter and the Registration Rights Agreement, each substantially in the form to be filed as an exhibit to the Registration
Statement on Form S-1 associated with the Company’s IPO, embodies the entire agreement and understanding between the Subscriber
and the Company with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating
to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this
Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.


 


6.4 Modifications and Amendments. The terms
and provisions of this Agreement may be modified or amended only by written agreement executed by all parties hereto.


 


6.5 Waivers and
Consents. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by
written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be
deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not
similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given,
and shall not constitute a continuing waiver or consent.


 






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6.6 Assignment. The rights and obligations
under this Agreement may not be assigned by either party hereto without the prior written consent of the other party.


 


6.7 Benefit. All statements, representations,
warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall inure to the benefit of the respective
successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed to create any rights or obligations
except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary of this Agreement.


 


6.8 Governing Law. This Agreement and the
rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of New York applicable
to contracts wholly performed within the borders of such state, without giving effect to the conflict of law principles thereof.


 


6.9 Severability. In the event that any
court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement shall be unreasonable
or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable,
and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof,
wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect.


 


6.10 No Waiver of Rights, Powers and Remedies.
No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between
the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right,
power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power
or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder.
The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies.
No notice to or demand on a party not expressly required under this Agreement shall entitle the party receiving such notice or demand
to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without such notice or demand.


 


6.11 Survival of Representations and Warranties.
All representations and warranties made by the parties hereto in this Agreement or in any other agreement, certificate or instrument provided
for or contemplated hereby, shall survive the execution and delivery hereof and any investigations made by or on behalf of the parties.


 


6.12 No Broker or Finder. Each of the
parties hereto represents and warrants to the other that no broker, finder or other financial consultant has acted on its behalf in
connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability on the other. Each
of the parties hereto agrees to indemnify and save the other harmless from any claim or demand for commission or other compensation
by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party and to
bear the cost of legal expenses incurred in defending against any such claim.


 






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6.13 Headings and Captions. The headings
and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify or affect
the meaning or construction of any of the terms or provisions hereof.


 


6.14 Counterparts. This Agreement may be
executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need
not sign the same counterpart. 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.


 


6.15 Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises,
this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of proof will arise favoring
or disfavoring any party hereto because of the authorship of any provision of this Agreement. The words “include,” “includes,”
and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter
genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice
versa, unless the context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,”
 “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly
so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance.
If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists
another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which
such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation,
warranty, or covenant.


 


6.16 Mutual Drafting. This Agreement is
the joint product of the Subscriber and the Company and each provision hereof has been subject to the mutual consultation, negotiation
and agreement of such parties and shall not be construed for or against any party hereto.


 


7. Voting and Tender of Shares. The
Subscriber agrees to vote the Shares in favor of an initial business combination that the Company negotiates and submits for
approval to the Company’s stockholders and shall not seek redemption or repurchase with respect to any of the Shares in
connection with an initial business combination or any amendment to the Organizational Documents, as amended, prior to an initial
business combination. Additionally, the Subscriber agrees not to tender any Shares in connection with a tender offer presented to
the Company’s stockholders in connection with an initial business combination negotiated by the Company.


 


8. Indemnification. Each party shall indemnify the other against
any loss, cost or damages (including reasonable attorney’s fees and expenses) incurred as a result of such party’s breach
of any representation, warranty, covenant or agreement in this Agreement.


 


[Signature Page Follows]


 






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If the foregoing accurately sets forth our understanding
and agreement, please sign the enclosed copy of this Agreement and return it to us.


 


	 	Very truly yours,
	 	 
	 	BANYAN ACQUISITION CORPORATION




 


	 	By:	/s/ Keith Jaffee







	 	Name: Keith Jaffee
	 	Title: Chief Executive Officer




 





	banyan
    Acquisition sponsor llc	 




 





	By:	/s/ Keith Jaffee	 







	Name: Keith Jaffee	 
	Title: Manager	 




 


[Signature Page to
Securities Subscription Agreement]