Case 1:22-cv-08600 Document 1 Filed 10/10/22 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`Plaintiff,
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`
`
`Civil Action No. ___________
`
`
`COMPLAINT FOR VIOLATIONS
`OF THE SECURITIES EXCHANGE
`ACT OF 1934
`
`
`
`
`JURY TRIAL DEMAND
`
`
`
`ROBERT SCOTT,
`
`
`
`
` v.
`
`EVO PAYMENTS, INC., JAMES G. KELLY,
`MARK A. CHANCY, VAHE A.
`DOMBALAGIAN, JOHN S. GARABEDIAN,
`NIKKI T. HARLAND, DAVID W. LEEDS,
`LAURA M. MILLER, STACEY V.
`PANAYIOTOU, GREGORY S. POPE, and
`MATTHEW W. RAINO,
`
`
`Defendants.
`
`Plaintiff Robert Scott (“Plaintiff”) alleges the following upon information and belief,
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`including investigation of counsel and review of publicly available information, except as to those
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`allegations pertaining to Plaintiff, which are alleged upon personal knowledge:
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`NATURE OF THE ACTION
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`1.
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`Plaintiff brings this action against EVO Payments, Inc. (“EVO” or the “Company”)
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`and EVO’s Board of Directors (the “Board” or the “Individual Defendants”) for their violations of
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`Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, 15.U.S.C. §§ 78n(a), 78t(a), and
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`SEC Rule 14a-9, 17 C.F.R. § 240.14a-9, arising out of the Board’s attempt to sell the Company to
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`Global Payments Inc. through its wholly-owned subsidiary Falcon Merger Sub Inc. (collectively
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`“Global Payments”).
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`2.
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`Defendants have violated the above-referenced Sections of the Exchange Act by
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`causing a materially incomplete and misleading definitive proxy statement (the “Proxy”) to be
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`filed with the Securities and Exchange Commission (“SEC”) on September 22, 2022. The Proxy
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`recommends that EVO stockholders vote in favor of a proposed transaction (the “Proposed
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`Case 1:22-cv-08600 Document 1 Filed 10/10/22 Page 2 of 14
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`Transaction”) whereby EVO is acquired by Global Payments. The Proposed Transaction was first
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`disclosed on August 1, 2022, when EVO and Global Payments announced that they had entered
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`into a definitive merger agreement (the “Merger Agreement”) pursuant to which Global Payments
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`will acquire all of the outstanding shares of common stock of EVO for $34.00 per share (the
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`“Merger Consideration”). The deal is valued at approximately $4.0 billion and is expected to close
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`no later than the first quarter of 2023.
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`3.
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`The Proxy is materially incomplete and contains misleading representations and
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`information in violation of Sections 14(a) and 20(a) of the Exchange Act. Specifically, the Proxy
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`contains materially incomplete and misleading information concerning the financial projections
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`prepared by EVO management, the financial analyses conducted by Citi Global Markets Inc.
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`(“Citi”), EVO’s financial advisor, and Citi and Company Insiders’ potential conflicts of interest.
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`4.
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`For these reasons, and as set forth in detail herein, Plaintiff seeks to enjoin
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`Defendants from taking any steps to consummate the Proposed Transaction, including filing an
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`amendment to the Proxy with the SEC or otherwise causing an amendment to the Proxy to be
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`disseminated to EVO’s stockholders, unless and until the material information discussed below is
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`included in any such amendment or otherwise disseminated to EVO’s stockholders. In the event
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`the Proposed Transaction is consummated without the material omissions referenced below being
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`remedied, Plaintiff seeks to recover damages resulting from the Defendants’ violations.
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`PARTIES
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`Plaintiff is, and has been at all relevant times, the owner of shares of common stock
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`5.
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`of EVO.
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`6.
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`Defendant EVO is a corporation organized and existing under the laws of the State
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`of Delaware. The Company’s principal executive offices are located at 10 Glenlake Parkway,
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`Case 1:22-cv-08600 Document 1 Filed 10/10/22 Page 3 of 14
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`South Tower, Suite 950, Atlanta, Georgia 30328. EVO common stock trades on the Nasdaq Global
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`Market under the ticker symbol “EVOP.”
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`7.
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`Defendant James G. Kelly has been a director of the Company since 2018.
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`Defendant Kelly has served as Chief Executive Officer since 1989.
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`8.
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`9.
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`10.
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`11.
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`12.
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`13.
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`14.
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`15.
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`16.
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`17.
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`Defendant Mark A. Chancy has been a director of the Company since 2020.
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`Defendant Vahe A. Dombalagian has been a director of the Company since 2018.
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`Defendant John S. Garabedian has been a director of the Company since 2018.
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`Defendant Nikki T. Harland has been a director of the Company since March 2022.
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` Defendant David W. Leeds has been a director of the Company since 2018.
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` Defendant Laura M. Miller has been a director of the Company since 2019.
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`Defendant Stacey V. Panayiotou has been a director of the Company since 2021.
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`Defendant Gregory S. Pope has been a director of the Company since 2018.
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`Defendant Matthew W. Raino has been a director of the Company since 2020.
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`Nonparty Global Payments Inc. is a corporation organized and existing under the
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`laws of the State of Georgia. Global Payments Inc.’s principal executive offices are located at 3550
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`Lenox Road, Atlanta, Georgia 30326. Global Payments Inc. common stock trades on the New
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`York Stock Exchange under the symbol “GPN.”
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`18.
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`Nonparty Falcon Merger Sub Inc. is a Delaware corporation and is a wholly owned
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`subsidiary of Global Payments Inc.
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` JURISDICTION AND VENUE
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`19.
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`This Court has subject matter jurisdiction pursuant to Section 27 of the Exchange
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`Act (15 U.S.C. § 78aa) and 28 U.S.C. § 1331 (federal question jurisdiction) as Plaintiff alleges
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`violations of Section 14(a) and 20(a) of the Exchange Act and SEC Rule 14a-9.
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`20.
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`Personal jurisdiction exists over each Defendant either because the Defendant
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`conducts business in or maintains operations in this District, or is an individual who is either
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`present in this District for jurisdictional purposes or has sufficient minimum contacts with this
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`District as to render the exercise of jurisdiction over Defendant by this Court permissible under
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`traditional notions of fair play and substantial justice.
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`21.
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`Venue is proper in this District under Section 27 of the Exchange Act, 15 U.S.C. §
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`78aa, as well as under 28 U.S.C. § 1391, because a significant amount of the conduct at issue took
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`place and had an effect in this District.
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`FURTHER SUBSTANTIVE ALLEGATIONS
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`A. Background of the Company and the Proposed Transaction
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`22.
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`EVO is a leading payment technology and services provider. EVO offers an array
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`of secure payment solutions to merchants ranging from small and midsize enterprises to
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`multinational companies and organizations across the globe. EVO is a fully integrated merchant
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`acquirer and payment processor in over 50 markets and 150 currencies worldwide.
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`23.
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`On August 1, 2022, the Company entered into the Merger Agreement with Global
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`Payments.
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`24.
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`According to the press release issued on August 1, 2022 announcing the Proposed
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`Transaction:
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`Global Payments Enters Definitive Agreement to Acquire EVO Payments
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`• Accelerates technology-enabled, software-driven strategy through further
`penetration into integrated and business-to-business (B2B) payments
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`• Enhances exposure to faster growth markets through entry into new
`geographies and by adding further scale to existing businesses
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`• Generates combined customer base of more than 4.5 million merchant
`locations and over 1,500 financial institutions globally
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`Case 1:22-cv-08600 Document 1 Filed 10/10/22 Page 5 of 14
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`• Provides significant financial and operating scale with combined adjusted
`net revenue of $9.8 billion1 and adjusted EBITDA of $4.7 billion
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`
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`• Offers compelling value creation with significant expected synergies and
`adjusted earnings per share accretion in the first year post close
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`ATLANTA — August 1, 2022 — Global Payments Inc. (NYSE: GPN), a leading
`worldwide provider of payment technology and software solutions, and EVO
`Payments, Inc. (NASDAQ: EVOP), a leading global provider of payment
`technology integrations and acquiring solutions, today announced that Global
`Payments will acquire EVO in an all-cash transaction for $34.00 per share.
`
`The transaction will significantly increase Global Payments’ target addressable
`markets, further enhance its leadership in integrated payments worldwide, expand
`its presence in new and existing faster growth geographies, and augment its B2B
`software and payment solutions with the addition of accounts receivable software
`with broad third-party acceptance.
`
`“The acquisition of EVO is highly complementary to our technology-enabled
`strategy and provides meaningful opportunities to increase scale in our business
`globally,” said Cameron Bready, President and Chief Operating Officer, Global
`Payments. “Together with EVO, we are positioned to deliver an unparalleled suite
`of distinctive software and payment solutions to our combined 4.5 million merchant
`locations and more than 1,500 financial institutions worldwide.”
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`The transaction will expand Global Payments’ geographic footprint into attractive
`new geographies such as Poland, Germany, Chile, and upon closing, Greece, as
`well as enhance its scale in existing markets, including the United States, Canada,
`Mexico, Spain, Ireland and the United Kingdom.
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`The acquisition will also add leading accounts receivable automation software
`capabilities that complement Global Payments’ existing B2B and accounts payable
`offerings. Further, EVO will bring an array of key technology partners and
`proprietary integrations, including with the most widely used ERP software
`providers.
`
`“Joining EVO and Global Payments will unite highly complementary portfolios of
`technology-enabled products and partnerships to create an even stronger
`organization serving a broader customer base,” added Jim Kelly, Chief Executive
`Officer, EVO. “Over the last decade, the EVO team has worked diligently to
`advance our innovative solutions, strengthen the service we provide to our bank
`and technology-enabled partners, and grow our global footprint. This transaction is
`an achievement for our company, and we believe it delivers compelling value to
`our shareholders and accelerates our growth opportunities.”
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`Case 1:22-cv-08600 Document 1 Filed 10/10/22 Page 6 of 14
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`Transaction Details
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`The transaction has been unanimously approved by each company’s Board of
`Directors. Pursuant to the terms of the merger agreement, Global Payments will
`acquire the outstanding equity of EVO for $34.00 per share in cash ($4.0 billion of
`enterprise value for EVO). The purchase price represents a premium of
`approximately 24% and 40% to EVO’s last closing price and to its 60-day average
`price, respectively, as of July 29, 2022.
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`Global Payments expects to finance the acquisition with cash on hand and a
`committed bank facility. Silver Lake will make a strategic investment of $1.5
`billion in Global Payments in the form of a convertible note. In connection with the
`investment by Silver Lake, and subject to market conditions and other factors,
`Global Payments expects to enter into a call spread or other derivative transaction
`designed to raise the effective conversion premium of the convertible note.
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`The transaction, which is subject to EVO stockholder approval, regulatory
`approvals and other customary closing conditions, is expected to deliver $125
`million of run-rate synergies and be accretive in the first year after close. The
`transaction is expected to close no later than the first quarter of 2023.
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`B. The Materially Incomplete and Misleading Proxy
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`25.
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`On September 22, 2022, Defendants filed the Proxy with the SEC. The purpose of
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`the Proxy is, inter alia, to provide the Company’s stockholders with all material information
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`necessary for them to make an informed decision on whether to vote in favor of the Proposed
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`Transaction. However, significant and material facts were not provided to Plaintiff. Without such
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`information, Plaintiff cannot make a fully informed decision concerning whether to vote in favor
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`of the Proposed Transaction.
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`Materially Incomplete and Misleading Disclosures Concerning the
`Management-Prepared Financial Forecasts
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`26.
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`The Proxy discloses management-prepared financial projections for the Company
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`which are materially misleading. The Proxy indicates that in connection with the rendering of
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`Citi’s fairness opinion, Citi reviewed “examined certain publicly available business and financial
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`information relating to EVO as well as the Management Projections.” Accordingly, the Proxy
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`should have, but failed to, provide certain information in the projections that EVO’s management
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`provided to the Board and Citi.
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`27.
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`Notably, Defendants failed to disclose the line item entries forming the basis of the
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`following calculations: (a) Adjusted EBITDA; (b) Adjusted Net Income Per Share; and (c)
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`Unlevered After-Tax Free Cash Flows.
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`28.
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`This omitted information is necessary for Plaintiff to make an informed decision on
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`whether to vote in favor of the Proposed Transaction.
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`Materially Incomplete and Misleading Disclosures Concerning Citi’s
`Financial Analyses
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`29. With respect to the Discounted Cash Flow Analysis performed by Citi, the Proxy
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`fails to disclose: (a) EVO’s terminal year unlevered after-tax free cash flow; (b) EVO’s terminal
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`values; (c) the key data, inputs, and assumptions forming the basis of the range of discount rates
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`applied by Citi; (d) EVO’s net debt; and (e) EVO’s outstanding shares on a fully diluted basis.
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`30. With respect to the Selected Public Companies Analysis performed by Citi, the
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`Proxy fails to disclose: (a) the specific financial metrics and multiples for each of the companies
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`chosen and studied by Citi; (b) EVO’s net debt; (c) EVO’s non-controlling interest in consolidated
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`entities (including pro forma adjustments for pending acquisitions); (d) EVO’s investments in
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`equity securities; and (e) EVO’s outstanding shares on a fully diluted basis.
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`31. With respect to the Selected Precedent Transactions Analysis performed by Citi,
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`the Proxy fails to disclose: (a) the specific financial multiples and metrics for each of the
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`transactions chosen and studied Citi; (b) EVO’s net debt; (c) EVO’s non-controlling interest in
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`consolidated entities (including pro forma adjustments for pending acquisitions); (d) the
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`Company’s investments in equity securities; and (e) EVO’s outstanding shares on a fully diluted
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`basis.
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`32. With respect to the analysis of Wall Street research analysts’ one-year forward price
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`targets, the Proxy fails to disclose the specific price targets studied and their sources.
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`33. With respect to the analysis of implied premiums paid in selected acquisition
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`transactions conducted by Citi, the Proxy fails to disclose the transactions studied and their
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`individual premiums.
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`Materially Incomplete and Misleading Disclosures Concerning Citi and
`Company Insiders’ Potential Conflicts of Interest
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`34.
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`The Proxy fails to disclose material information concerning potential conflicts of
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`interest faced by Citi, specifically, details concerning services provided by Citi or its affiliates to
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`MDP LLC and Blueapple (or their respective affiliates) in the two years prior to the delivery of
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`Citi’s fairness opinion for the Proposed Transaction, and any compensation they may have
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`received for such services rendered.
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`35.
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`The Proxy also fails to disclose material information concerning potential conflicts
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`of interest by Company management, including whether any Company insiders procured positions
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`with the surviving corporation. The Proxy likewise fails to disclose the specifics of any
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`employment and retention-related talks and negotiations by EVO’s executive officers and Global
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`Payments, including details concerning who participated in these discussions, what was discussed,
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`and the dates of the communications.
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`36.
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`This information is necessary to provide Company stockholders a complete and
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`accurate picture of the sales process and its fairness. Without this information, Plaintiff is not fully
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`informed as to the Defendants’ actions, including those that may have been taken in bad faith, and
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`cannot fairly assess the process. And without all material information, Plaintiff is unable to make
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`a fully informed decision in connection with the Proposed Transaction and faces irreparable harm,
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`warranting the injunctive relief sought herein.
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`37.
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`In addition, the Individual Defendants knew or recklessly disregarded that the
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`Case 1:22-cv-08600 Document 1 Filed 10/10/22 Page 9 of 14
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`Proxy omits the material information concerning the Proposed Transaction and contains the
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`materially incomplete and misleading information discussed above.
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`38.
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`Specifically, the Individual Defendants undoubtedly reviewed the contents of the
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`Proxy before it was filed with the SEC. Indeed, as directors of the Company, they were required
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`to do so. The Individual Defendants thus knew or recklessly disregarded that the Proxy omits the
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`material information referenced above and contains the incomplete and misleading information
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`referenced above.
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`39.
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`Further, the Proxy indicates that on July 31, 2022, Citi reviewed with the Board its
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`financial analysis of the Merger Consideration and delivered to the Board an oral opinion, which
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`was confirmed by delivery of a written opinion of the same date, to the effect that the Merger
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`Consideration was fair, from a financial point of view, to EVO stockholders. Accordingly, the
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`Individual Defendants undoubtedly reviewed or were presented with the material information
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`concerning Citi’s financial analyses which has been omitted from the Proxy, and thus knew or
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`should have known that such information has been omitted.
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`40.
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`Plaintiff is immediately threatened by the wrongs complained of herein, and lacks
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`an adequate remedy at law. Accordingly, Plaintiff seeks injunctive and other equitable relief to
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`prevent the irreparable injury that he will continue to suffer absent judicial intervention.
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`CLAIMS FOR RELIEF
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`COUNT I
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`
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`Against All Defendants for Violations of Section 14(a) of the Exchange Act and Rule 14a-9
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`41.
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`herein.
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`42.
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`Defendants have filed the Proxy with the SEC with the intention of soliciting EVO
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`stockholder support for the Proposed Transaction. Each of the Individual Defendants reviewed and
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`Case 1:22-cv-08600 Document 1 Filed 10/10/22 Page 10 of 14
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`authorized the dissemination of the Proxy, which fails to provide the material information
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`referenced above.
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`43.
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`In so doing, Defendants made materially incomplete and misleading statements
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`and/or omitted material information necessary to make the statements made not misleading. Each
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`of the Individual Defendants, by virtue of their roles as officers and/or directors of EVO, were
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`aware of the omitted information but failed to disclose such information, in violation of Section
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`14(a).
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`44.
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`Rule 14a-9, promulgated by the SEC pursuant to Section 14(a) of the Exchange
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`Act, provides that such communications with stockholders shall not contain “any statement which,
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`at the time and in the light of the circumstances under which it is made, is false or misleading with
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`respect to any material fact, or which omits to state any material fact necessary in order to make
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`the statements therein not false or misleading.” 17 C.F.R. § 240.14a-9.
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`45.
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`Specifically, and as detailed above, the Proxy violates Section 14(a) and Rule 14a-
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`9 because it omits material facts concerning: (i) management’s financial projections; (ii) the value
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`of EVO shares and the financial analyses performed by Citi in support of its fairness opinion; and
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`(iii) potential conflicts of interest by Citi and Company insiders.
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`46. Moreover, in the exercise of reasonable care, the Individual Defendants knew or
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`should have known that the Proxy is materially misleading and omits material information that is
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`necessary to render it not misleading. The Individual Defendants undoubtedly reviewed and relied
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`upon the omitted information identified above in connection with their decision to approve and
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`recommend the Proposed Transaction; indeed, the Proxy states that Citi reviewed and discussed
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`its financial analyses with the Board during various meetings including on July 31, 2022, and
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`further states that the Board considered Citi’s financial analyses and fairness opinion in connection
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`with approving the Proposed Transaction. The Individual Defendants knew or should have known
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`that the material information identified above has been omitted from the Proxy, rendering the
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`sections of the Proxy identified above to be materially incomplete and misleading.
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`47.
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`The misrepresentations and omissions in the Proxy are material to Plaintiff, who
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`will be deprived of his right to cast an informed vote if such misrepresentations and omissions are
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`not corrected prior to the vote on the Proposed Transaction. Plaintiff has no adequate remedy at
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`law. Only through the exercise of this Court’s equitable powers can Plaintiff be fully protected
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`from the immediate and irreparable injury that Defendants’ actions threaten to inflict.
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`COUNT II
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`Against the Individual Defendants for Violations of Section 20(a) of the Exchange Act
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`48.
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`herein.
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`49.
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`The Individual Defendants acted as controlling persons of EVO within the meaning
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`of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as officers
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`and/or directors of EVO and participation in and/or awareness of the Company’s operations and/or
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`intimate knowledge of the incomplete and misleading statements contained in the Proxy filed with
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`the SEC, they had the power to influence and control and did influence and control, directly or
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`indirectly, the decision making of the Company, including the content and dissemination of the
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`various statements that Plaintiff contends are materially incomplete and misleading.
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`50.
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`Each of the Individual Defendants was provided with or had unlimited access to
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`copies of the Proxy and other statements alleged by Plaintiff to be misleading prior to the time the
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`Proxy was filed with the SEC and had the ability to prevent the issuance of the statements or cause
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`the statements to be corrected.
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`51.
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`In particular, each of the Individual Defendants had direct and supervisory
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`involvement in the day-to-day operations of the Company, and, therefore, is presumed to have had
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`the power to control or influence the particular transactions giving rise to the Exchange Act
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`violations alleged herein, and exercised the same. The omitted information identified above was
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`reviewed by the Board prior to voting on the Proposed Transaction. The Proxy at issue contains
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`the unanimous recommendation of each of the Individual Defendants to approve the Proposed
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`Transaction. They were, thus, directly involved in the making of the Proxy.
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`52.
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`In addition, as the Proxy sets forth at length, and as described herein, the Individual
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`Defendants were involved in negotiating, reviewing, and approving the Merger Agreement. The
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`Proxy purports to describe the various issues and information that the Individual Defendants
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`reviewed and considered. The Individual Defendants participated in drafting and/or gave their
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`input on the content of those descriptions.
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`53.
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`By virtue of the foregoing, the Individual Defendants have violated Section 20(a)
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`of the Exchange Act.
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`54.
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`As set forth above, the Individual Defendants had the ability to exercise control
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`over and did control a person or persons who have each violated Section 14(a) and Rule 14a-9, by
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`their acts and omissions as alleged herein. By virtue of their positions as controlling persons, these
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`Defendants are liable pursuant to Section 20(a) of the Exchange Act. As a direct and proximate
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`result of Individual Defendants’ conduct, Plaintiff will be irreparably harmed.
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`RELIEF REQUESTED
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`WHEREFORE, Plaintiff demands injunctive relief in his favor and against the Defendants
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`jointly and severally, as follows:
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`A.
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`Preliminarily and permanently enjoining Defendants and their counsel, agents,
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`employees and all persons acting under, in concert with, or for them, from filing an amendment to
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`Case 1:22-cv-08600 Document 1 Filed 10/10/22 Page 13 of 14
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`the Proxy with the SEC or otherwise disseminating an amendment to the Proxy to EVO
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`stockholders unless and until Defendants agree to include the material information identified above
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`in any such amendment;
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`B.
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`Preliminarily and permanently enjoining Defendants and their counsel, agents,
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`employees and all persons acting under, in concert with, or for them, from proceeding with,
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`consummating, or closing the Proposed Transaction, unless and until Defendants disclose the
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`material information identified above which has been omitted from the Proxy;
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`C.
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`In the event that the transaction is consummated prior to the entry of this Court’s
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`final judgment, rescinding it or awarding Plaintiff rescissory damages;
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`D.
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`Directing the Defendants to account to Plaintiff for all damages suffered as a result
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`of their wrongdoing;
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`E.
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`Awarding Plaintiff the costs and disbursements of this action, including reasonable
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`attorneys’ and expert fees and expenses; and
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`F.
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`Granting such other and further equitable relief as this Court may deem just and
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`proper.
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`JURY DEMAND
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`Plaintiff demands a trial by jury.
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`Case 1:22-cv-08600 Document 1 Filed 10/10/22 Page 14 of 14
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`Dated: October 10, 2022
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`ROWLEY LAW PLLC
`
`
`S/ Shane T. Rowley
`Shane T. Rowley (SR-0740)
`Danielle Rowland Lindahl
`50 Main Street, Suite 1000
`White Plains, NY 10606
`Tel: (914) 400-1920
`Fax: (914) 301-3514
`Email: srowley@rowleylawpllc.com
`Email: drl@rowleylawpllc.com
`
`Attorneys for Plaintiff
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