PETMED EXPRESS, INC. Item 1.01 Entry into a Material Definitive Agreement.
On
As consideration for the Merger, the Company has agreed to pay the sum of: (a)
Merger Agreement
At the effective time of the Merger (the "Effective Time"), all shares of PetCareRx common stock and preferred stock issued and outstanding immediately prior to the Effective Time (other than (A) any PetCareRx capital stock owned by PetCareRx as treasury stock, (B) owned by the Company or Merger Sub and (C) any dissenting shares) shall be converted into the right to receive a portion of the Merger Consideration, less amounts subject to escrow and payable in the future in accordance with the Merger Agreement. In addition, vested options to purchase shares of PetCareRx common stock outstanding and unexercised as of the Effective Time shall automatically be cancelled at the Effective Time in exchange for the right of the holders thereof to receive an amount in cash equal to the product of (x) the aggregate number of shares of PetCareRx common stock subject to such options as of immediately prior to the Effective Time, and (y) the excess, if any, of the per share Merger Consideration over the exercise price per share of such option as of immediately prior to the Effective Time. At the Effective Time, each of PetCareRx's directors and officers will resign so that no affiliates of PetCareRx will continue to serve in their respective officer or director roles following the Merger.
Consummation of the Merger is subject to certain conditions, including: (i) the
absence of any law or order of a governmental entity prohibiting the
consummation of the Merger; (ii) holders of no more than 10% of the outstanding
shares of PetCareRx capital stock, in the aggregate, immediately prior to the
Effective Time exercising (or remaining entitled to exercise) statutory
appraisal rights pursuant to the New York Business Corporation Law; (iii) the
absence of legal proceedings or investigations by governmental authorities with
respect to the transactions contemplated by the Merger Agreement; (iv) subject
to certain qualifications, the accuracy of representations and warranties of
PetCareRx, the Company and Merger Sub, as applicable, under the Merger Agreement
and the performance in all material respects by PetCareRx, the Company and
Merger Sub, as applicable, of their obligations under the Merger Agreement; (v)
the absence of any Material Adverse Effect (as defined in the Merger Agreement);
(vi) receipt of all approvals, consents and waivers that are required to effect
the transactions contemplated by the Merger Agreement; and (vii) certain
The Merger Agreement contains representations, warranties and covenants of each
of the parties thereto that are customary for transactions of this type,
including covenants regarding the operation of the business of PetCareRx prior
to the Effective Time and covenants requiring PetCareRx not to solicit or
furnish any information to, commence or conduct presently ongoing negotiations
with or enter into any agreement with any person or entity other than the
Company relating to the sale or other disposition of PetCareRx or any portion
thereof (other than the sale of inventory items in the ordinary course of
business consistent with past practice). The Merger Agreement also contains
certain customary termination rights for each of PetCareRx and the Company,
including a right to terminate the Merger Agreement if the Merger is not
completed by
The foregoing description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete, and is subject to, and qualified in its entirety by reference to, the full text of the Merger Agreement, which is attached as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference. It is not intended to provide any factual information about PetCareRx, the Company or their respective affiliates. The representations, warranties and covenants contained in the Merger Agreement have been made solely for the purposes of the Merger Agreement and as of specified dates; were made solely for the benefit of the parties to the Merger Agreement; are not intended as statements of fact to be relied upon, but rather as a way of allocating the risk between the parties in the event that statements therein prove to be inaccurate; have been modified or qualified by certain confidential disclosures that were made between the parties in connection with the negotiation of the Merger Agreement, which disclosures are not reflected in the Merger Agreement itself; may have been made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts; may no longer be true as of a given date; and may apply standards of materiality in a way that is different from what may otherwise be viewed as material. PetCareRx
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stockholders are not third-party beneficiaries under the Merger Agreement (except, following the Effective Time, with respect to the rights of PetCareRx stockholders to receive the Merger Consideration pursuant to the Merger Agreement) and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of PetCareRx, the Company or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company's public disclosures.
Item 7.01 Regulation FD Disclosure.
On
The information in Section 7.01 of this Current Report on Form 8-K, including the information set forth in Exhibit 99.1, is being furnished and shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), nor shall Exhibit 99.1 filed herewith be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1 Agreement and Plan of Merger, datedJanuary 13, 2023 , by and amongPetMed Express, Inc. ,Harry Merger Sub, Inc. ,PetCareRx, Inc. , andJeanette Loeb .* 99.1 Press release issued byPetMed Express, Inc. , dated 17, 2023. 104 Cover Page Interactive Data File (formatted as Inline XBRL)
*Certain exhibits and schedules have been omitted pursuant to Item 601(b)(2) of
Regulation S-K.
* * *
Forward-Looking Statements
This Current Report on Form 8-K contains "forward-looking statements" within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. All statements contained
in this Current Report on Form 8-K that do not relate to matters of historical
fact should be considered forward-looking statements. Words such as "may,"
"could," "expect," "project," "outlook," "strategy," "intend," "plan," "seek,"
"anticipate," "believe," "estimate," "predict," "potential," "strive," "goal,"
"continue," "likely," "will," "would" and other similar words and expressions
are intended to signify forward-looking statements. Such forward-looking
statements are necessarily based upon estimates and assumptions that, while
considered reasonable by the Company and its management, are inherently
uncertain and are subject to various risks and uncertainties, including: the
risk that the Company may not be able to successfully complete the PetCareRx
acquisition; the risk that the expected benefits to the Company from the
acquisition will not be realized or will not be realized within the expected
time periods; or unknown liabilities that may or may not be within the Company's
control. The Company's future results may also be impacted by other risk factors
listed from time to time in the Company's filings with the
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