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

ARKO Corp.

(Exact name of Registrant as Specified in Its Charter)

(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:

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

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 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company ☐

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. ☐

Item 1.01 Entry into a Material Definitive Agreement.

On September 9, 2022, GPM Investments, LLC, a Delaware limited liability company (“GPM”) and a subsidiary of ARKO Corp., a Delaware corporation (“ARKO”), entered into an Asset Purchase Agreement (the “Purchase Agreement”) with Transit Energy Group, LLC, a Delaware limited liability company (“Transit”), certain of Transit’s affiliated entities (together with Transit, “Seller”), and certain of GPM’s subsidiaries, including GPM Petroleum, LLC, a Delaware limited liability company (such 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 comprising Seller’s business, including (i) approximately 150 retail gas stations and retail stores, (ii) approximately 200 dealer sites, (iii) a commercial, government and industrial business, including certain bulk plants, and (iv) certain tractor trailers, tanker trailers and delivery trucks (collectively, the “Acquired Business”).

Pursuant to the Purchase Agreement, at the closing of the transactions contemplated thereby (the “Closing”), Buyer will purchase from Seller, and Seller will sell to Buyer, subject to certain exceptions, all of Seller’s right, title and interest in the assets comprising the Acquired Business, and Buyer will assume from Seller certain liabilities in respect of the Acquired Business (the “Transaction”). At Closing, Buyer has agreed to pay Seller 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 “Closing Date Cash Consideration”). In addition, on each of the first two anniversaries of the Closing, Buyer will pay Seller an amount equal to $25.0 million (each an “Installment Payment”), which Buyer may elect to pay either in cash or, subject to the satisfaction of certain conditions, shares of ARKO’s common stock, $0.0001 par value per share (the “Installment Shares”). Pursuant to the Purchase Agreement, at 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 Securities and Exchange Commission, registering the Installment Shares, if any, for resale by Transit.

ARKO intends to finance from its own sources approximately $60.0million of the Closing Date Cash Consideration 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”) in accordance with ARKO’s previously reported standby real estate purchase, designation and lease program agreement, by and between Oak Street and GPM. Under this arrangement, Oak Street or its affiliates has agreed to acquire the fee simple ownership in 106 sites of the Acquired Business, which GPM or its affiliates will lease from Oak Street.

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

The Purchase Agreement contains certain customary termination rights for both Buyer, on the one hand, and Seller, on the other hand.

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

The Purchase Agreement is filed with this Current Report on Form 8-K to provide security holders with information regarding its terms. It is not intended to provide any other factual information about ARKO, Buyer, Seller, the Acquired Business or any of the other parties to the Purchase Agreement. The representations, warranties and covenants contained in the Purchase Agreement were made solely for purposes of such agreement and as of specific dates, are solely for the benefit of the parties to the Purchase Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties to the Purchase Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to security holders. Security holders should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of ARKO, Buyer, Seller, the Acquired Business or any of the other parties to the Purchase Agreement. Moreover, information concerning the subject matter of the 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 Unregistered Sales of Equity Securities.

The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference in this Item 3.02. If issued in accordance with the Purchase Agreement, the number of Installment Shares issuable in respect of an Installment Payment would equal the dollar amount of such Installment Payment divided by the value of each Installment Share, which value would equal the daily volume weighted average closing price of ARKO’s common stock on The Nasdaq Stock Market for a period consisting of the ten consecutive trading days ending on and inclusive of the trading day immediately preceding the applicable anniversary of the date of Closing.

The Installment Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and ARKO offered the Installment Shares in reliance upon the exemptions from registration contained in Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated thereunder. Transit represented to ARKO that it is an “accredited investor” as defined in Rule 501(a) under the Securities Act and that it was acquiring the Installment Shares (if and when issued in accordance with the Purchase Agreement) for investment and not with a view to distribution thereof in violation of the Securities Act.

Item 7.01 Regulation FD Disclosure.

On September 12, 2022, ARKO issued a press release announcing the entry into the Purchase Agreement. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and incorporated by reference in this Item 7.01.

The information contained in Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1 furnished herewith, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that Section and shall not be incorporated by reference into any filing under the Securities Act or the Exchange Act except to the extent expressly stated in such filing.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

*Pursuant to Item 601(a)(5) of Regulation S-K, schedules and similar attachments to this exhibit have been omitted because they do not contain information material to an investment or voting decision and such information is not otherwise disclosed in such exhibit. ARKO will supplementally provide a copy of any omitted schedule or similar attachment to the U.S. Securities and Exchange Commission or its staff upon request.

SIGNATURES

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 thereunto duly authorized.