ARKO CORP. : Entry of Material Definitive Agreement, Unrecorded Equity Sale, Settlement FD Disclosure, Financial Statements and Exhibits (Form 8-K)

Section 1.01 Entering into a Material Definitive Agreement.

On September 9, 2022, GPM Investments, LLCa Delaware limited liability company (“GPM”) and a subsidiary of ARKO Corp.a Delaware company (“ARKO”), entered into an asset purchase agreement (the “Purchase Agreement”) with Transit Energy Group, LLCa Delaware limited liability company (“Transit”), certain of Transit’s affiliated entities (together with Transit, the “Seller”) and certain of GPM’s subsidiaries, including GPM Petroleum, LLCa Delaware limited liability company (these subsidiaries, together with GPM, “Buyer”). Pursuant to the Purchase Agreement, Buyer has agreed to purchase and assume, and Seller has agreed to sell and assign, subject to certain exceptions, the assets and certain liabilities constituting Seller’s business, including including (i) approximately 150 gas stations and retail stores, (ii) approximately 200 dealership sites, (iii) commercial, government and industrial enterprise, including certain bulk storage facilities, and (iv) certain semi- trailers, tank trailers and delivery trucks (collectively, the “Acquired Business”).

Pursuant to the Purchase Agreement, upon closing of the contemplated transactions (the “Closing”), Buyer will purchase from Seller, and Seller will sell to Buyer, subject to certain exceptions, all right, title and interest of the seller in the assets. comprising the Acquired Business, and Buyer will assume certain liabilities to Seller with respect to the Acquired Business (the “Transaction”). At closing, the buyer has agreed to pay the seller an aggregate cash consideration equal to $325.0 million plus the value of inventory at closing, as well as for certain deposits and assets that may be acquired prior to closing (such cash amount, the “Cash Consideration at the Closing Date”). In addition, on each of the first two anniversaries of Closing, Buyer will pay Seller an amount equal to $25.0 million (each an “Instalment Payment”), which the Buyer may elect to pay either in cash or, subject to satisfaction of certain conditions, in common stock of ARKO, $0.0001 par value per share (the “Payout Shares”). Pursuant to the Purchase Agreement, upon Closing, ARKO and Transit have agreed to enter into a Registration Rights Agreement, pursuant to which ARKO will agree to prepare and file a Registration Statement with the Security and Exchange Commissionregistering the payout shares, if any, for resale by Transit.

ARKO intends to finance from its own resources approximately $60.0 million cash consideration at the closing date plus the value of inventory and other closing adjustments, with the balance coming from Oak Street Real Estate Capital Net Lease Property Fund, LP (“Oak Street”) pursuant to the previously stated ARKO Reserve Real Estate Purchase, Designation and Lease Program Agreement, by and between Oak Street and GPM. Under this agreement, Oak Street or its affiliates have agreed to acquire fee simple ownership of 106 sites of the acquired business, which GPM or its affiliates will lease to Oak Street.

Completion of the Transaction is subject to customary conditions, including the absence of legal restrictions and the termination or expiration of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as than modified. Each party’s obligation to consummate the transaction is also subject to the accuracy of the other parties’ representations and warranties (subject to certain exceptions) and the performance in all material respects of the other parties’ respective covenants under the contract. of purchase. Completion of the Transaction is not subject to a financing condition.

The purchase contract contains certain customary rescission rights for the buyer on the one hand and the seller on the other hand.

The foregoing description of the Purchase Agreement is a summary only and is qualified in its entirety by reference to the full text of the Purchase Agreement, which is filed as Schedule 2.1 to this Current Report on Form 8-K. and incorporated by reference herein.

The Purchase Agreement is being filed with this Current Report on Form 8-K to provide securityholders with information about its terms. It is not intended to provide any other factual information about ARKO, the buyer, the seller, the acquired company or any of the other parties to the purchase agreement. The representations, warranties and covenants contained in the Purchase Agreement are made solely for the purposes of this Agreement and as of specific dates, are for the benefit of the parties to the Purchase Agreement only, may be subject to any limitations agreed upon by the parties contracting parties, including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties to the purchase contract rather than establishing such matters as fact, and may be subject to materiality standards applicable to the parties which differ from those applicable to holders of securities. Securityholders should not rely on any representations, warranties, and covenants or any description thereof as characterizing the true state of facts or condition of ARKO, the buyer, the seller, the company acquired or from one of the other parties to the purchase contract. In addition, information regarding the subject matter of representations and warranties may change after the date of the Purchase Agreement, which subsequent information may or may not be fully reflected in ARKO’s public disclosures, except to the extent required by law.

Item 3.02 Unrecorded Sales of Equity securities.

The information contained in Section 1.01 of this Current Report on Form 8-K is incorporated by reference into this Section 3.02. If issued pursuant to the Purchase Agreement, the number of Installment Shares issuable in respect of an Installment Payment would be equal to the dollar amount of such Installment Payment divided by the value of each Payout Share, which value would be equal to the daily volume-weighted average closing price of ARKO Common Shares on The Nasdaq stock market for a period consisting of ten consecutive trading days ending on the trading day immediately preceding the applicable anniversary of the closing date. ————————————————– —————————— The Payout Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and ARKO has offered the Settlement Shares based on the registration exemptions contained in Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder. Transit told ARKO that it was an “accredited investor” as defined in Rule 501(a) of the Securities Act and that it was acquiring the Payout Shares (if and when issued pursuant to the Contract purchase) for investment purposes and not with a view to their distribution in violation of the Securities Act.

Section 7.01 Disclosure of FD Rules.

On September 12, 2022, ARKO issued a press release announcing the conclusion of the purchase agreement. A copy of the press release is provided as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated by reference in this Section 7.01.

The information contained in Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1 furnished herewith, is provided and shall not be considered “filed” for purposes of Section 18 of the Act. exchanges, or otherwise subject to the responsibilities of this Section and shall not be incorporated by reference in any filing under securities law or stock exchange law except to the extent expressly set forth in such filing.

Item 9.01 Financial statements and supporting documents.

(d) Exhibits.

Exhibit
Number    Description
2.1*        Asset Purchase Agreement, dated as of September 9, 2022, by and among
          GPM Investments, LLC, Transit Energy Group, LLC and the other parties
          thereto.
99.1        Press Release issued by ARKO Corp. on September 12, 2022.
104       Cover Page Interactive Data File (embedded within the Inline XBRL
          document)


* In accordance with Section 601(a)(5) of the SK Regulations, schedules and attachments similar to this exhibit have been omitted as they do not contain information material to an investment or voting decision and this information is not otherwise disclosed in this exhibit. ARKO will additionally provide a copy of any omitted program or similar attachment to the US Securities and Exchange Commission or its staff on request.

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