FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT between AGRICO ACQUISITION CORP. KALERA PUBLIC LIMITED COMPANY and Dated [_], 2022
Exhibit 10.13
between
AGRICO ACQUISITION CORP.
KALERA PUBLIC LIMITED COMPANY
and
[_]
Dated [_], 2022
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), dated [_], 2022, is made by and among Agrico Acquisition Corp., a Cayman Islands exempted company (the “Company”), Kalera Public Limited Company, a public limited company incorporated in Ireland with registered number 606356 (“PubCo”), and [_], a [_], as warrant agent, and amends the Warrant Agreement, dated July 7, 2021, by and between the Company and Continental Stock Transfer & Trust Company, a New York corporation, as amended (the "Existing Warrant Agreement"). Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Existing Warrant Agreement;
WHEREAS, on [_], 2022, the board of directors (the “Board”) of the Company appointed [_] as the successor Warrant Agent (in such capacity, the “Warrant Agent”) pursuant to Section 8 of the Existing Warrant Agreement;
WHEREAS, all of the Warrants are governed by the Existing Warrant Agreement;
WHEREAS, on January 30, 2022, the Company entered into a Business Combination Agreement (the “Business Combination Agreement”) with (i) PubCo, (ii) Kalera Cayman Merger Sub, a Cayman Islands exempted company, (iii) Kalera Luxembourg Merger Sub SARL, a Luxembourg limited liability company, and (iv) Kalera AS, a Norwegian private limited liability company;
WHEREAS, upon effectiveness of the transactions contemplated under the Business Combination Agreement, the Warrants will no longer be exercisable for Ordinary Shares of the Company but instead will be exercisable (subject to the terms of the Existing Warrant Agreement) for ordinary shares of PubCo (the “PubCo Ordinary Shares”);
WHEREAS, the Board has determined that the consummation of the transactions contemplated by the Business Combination Agreement will constitute a Business Combination (as defined in the Existing Warrant Agreement);
WHEREAS, in connection with the Business Combination, the Company desires to assign all of its right, title and interest in the Existing Warrant Agreement to PubCo and PubCo wishes to accept such assignment;
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. Assignment and Assumption; Consent; Notice; Payment of Taxes.
1.1 Assignment and Assumption. As of and with effect on and from the Closing (as defined in the Business Combination Agreement): the Company hereby assigns to PubCo all of the Company’s right, title and interest in and to the Existing Warrant Agreement; PubCo hereby assumes, and agrees to pay, perform, satisfy and discharge in full, as the same become due, all of the Company’s liabilities and obligations under the Existing Warrant Agreement arising on, from and after the Closing. As of and with effect on and from the Closing, all references to the “Company” in the Existing Warrant Agreement (including all Exhibits thereto) shall be references to PubCo.
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1.2 Consent. The Warrant Agent hereby consents to (i) the assignment of the Existing Warrant Agreement by the Company to PubCo pursuant to Section 1.1 and the assumption of the Existing Warrant Agreement by PubCo from the Company pursuant to Section 1.1, in each case effective as of the Closing, and (ii) the continuation of the Existing Warrant Agreement in full force and effect from and after the Closing.
1.3 Notice. Any notice, statement or demand authorized by the Existing Warrant Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on PubCo in accordance with Section 9.2 of the Existing Warrant Agreement, should be made to:
Kalera Public Limited Company
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▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by PubCo to or on the Warrant Agent in accordance with Section 9.2 of the Existing Warrant Agreement, should be made to:
[_]
with a copy to:
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▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇ Dixter, Esq.
and
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▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
Attn: Connor ▇▇▇▇▇▇▇, Esq.
1.4 Payment of Taxes. Without prejudice to Section 8.1 of the Existing Warrant Agreement, Pubco, at its absolute discretion, may, or may procure that a subsidiary of Pubco shall, pay any Irish stamp duty arising on a transfer of Warrants on behalf of the transferee of such Warrants. If stamp duty resulting from the transfer of Warrants in Pubco which would otherwise be payable by the transferee is paid by Pubco or any subsidiary of Pubco on behalf of the transferee, then in those circumstances, Pubco shall, on its behalf or on behalf of its subsidiary (as the case may be), be entitled to (i) reimbursement of the stamp duty from the transferee, (ii) set-off the stamp duty against any dividends payable by Pubco to the transferee of those Warrants and (iii) to the extent permitted by section 1042 of the Companies ▇▇▇ ▇▇▇▇ of Ireland and every statutory modification and re-enactment thereof for the time being, claim a first and paramount lien on the Warrants (or Ordinary Shares issued upon the exercise of Warrants) on which stamp duty has been paid by Pubco or its subsidiary for the amount of stamp duty paid. The Company’s lien shall extend to all dividends paid on Ordinary Shares issued upon the exercise of such Warrants.
2. Miscellaneous Provisions.
2.1 Effectiveness. Each of the parties hereto acknowledges and agrees that the effectiveness of this Agreement shall be expressly subject to the occurrence of the Business Combination and substantially contemporaneous occurrence of the Closing and shall automatically be terminated and shall be null and void if the Business Combination Agreement shall be terminated for any reason.
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2.2 Successors. All the covenants and provisions of this Agreement by or for the benefit of PubCo, the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
2.3 Applicable Law and Exclusive Forum. The validity, interpretation, and performance of this Agreement shall be governed in all respects by the laws of the State of New York. Subject to applicable law, each of PubCo and the Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive forum for any such action, proceeding or claim. Each of PubCo and the Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
Any person or entity purchasing or otherwise acquiring any interest in the Warrants shall be deemed to have notice of and to have consented to the forum provisions in this Section 2.3. If any action, the subject matter of which is within the scope the forum provisions above, is filed in a court other than a court located within the State of New York or the United States District Court for the Southern District of New York (a “foreign action”) in the name of any warrant holder, such warrant holder shall be deemed to have consented to: (x) the personal jurisdiction of the state and federal courts located within the State of New York or the United States District Court for the Southern District of New York in connection with any action brought in any such court to enforce the forum provisions (an “enforcement action”), and (y) having service of process made upon such warrant holder in any such enforcement action by service upon such warrant holder’s counsel in the foreign action as agent for such warrant holder.
2.4 Counterparts. This Agreement 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. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
2.5 Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
2.6 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement 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 Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| AGRICO ACQUISITION CORP. | ||||||||
| By: | ||||||||
Name: | ▇▇▇▇▇ ▇▇ ▇▇▇▇ | |||||||
Title: | Chief Executive Officer | |||||||
| KALERA PUBLIC LIMITED COMPANY | ||||||||
| By: | ||||||||
Name: | ||||||||
Title: | ||||||||
[_], as Warrant Agent | ||||||||
| By: | ||||||||
Name: | ||||||||
Title: | ||||||||
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