Pawneet Abramowski v. Nuvei Corp., et al. On Appeal from the U.S. District Court, D. Del. Judge Gregory…

U.S. C OURT OF A PPEALS
FOR THE THIRD C IRCUIT
No. 24-3156
P AWNEET A BRAMOWSKI, et al.
Appellants
v.
NUVEI C ORP., et al.
_____________________________
On Appeal from the U.S. District Court, D. Del.
Judge Gregory B. Williams, No. 1:23-cv-00965
Before: P ORTER , FREEMAN, and CHUNG , Circuit Judges
Argued Oct. 22, 2025; Decided Feb. 3, 2026 _____________________________
O PINION OF THE C OURT
P ORTER , Circuit Judge.
Appellants were shareholders in Paya Holdings, Inc.
(“Paya”) who, in response to a tender offer from Defendant-
Appellee Nuvei Corporation (“Nuvei”), tendered their shares
for payment. Nuvei rejected Appellants’ shares as invalidly
tendered under the parties’ private agreements. Appellants
sued, claiming, among other things, that the Securities and
Exchange Commission’s (“SEC”) Best Price Rule required
Nuvei to purchase their tendered shares. The District Court dis-
missed the suit. Because the Best Price Rule is silent as to

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whether tender offerors may enforce restrictions on the transfer
of tendered shares, we will affirm.
I
A
Appellants were the “Sponsors” of a special purpose
acquisition vehicle (“SPAC”)1 named Fintech Acquisition
Corp. III. Joint Appendix (“J.A.”) at 62–63. In August 2020,
Fintech merged with Paya, thereby taking Paya public. On the
same day, Appellants entered into a Sponsor Support
Agreement (“SSA”) with Paya whereby their Fintech “pro-
mote” shares were converted into “Earnout Shares” in Paya.
J.A. at 187. To align the Appellants’ long-term interests with
Paya’s other shareholders, the Earnout Shares were nontrans-
ferable, with limited exceptions not relevant here, until Octo-
ber 16, 2025—the end of the “Earnout Period.” J.A. at 189. The
SSA provided that the Earnout Shares would become transfer-
able upon “the first Change in Control to occur during the
Earnout Period” if the price per share paid was above $15.00.
J.A. at 187–88. But if the price per share was below that
amount, “none of the Earnout Shares subject to transfer
restrictions shall become free of transfer restrictions . . . and all
of the Earnout Shares shall be automatically forfeited immedi-
1 A SPAC is a publicly traded company whose sole mis-
sion is to merge with a private company in a “de-SPAC”
transaction, akin to an IPO, causing that company to become
public with an infusion of the SPAC’s capital. See generally
Julie Young, Special Purpose Acquisition Company (SPAC)
Explained: Examples and Risks, Investopedia (updated Feb.
6, 2025), https://perma.cc/833W-LK2M.

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ately prior to the consummation of such Change of Control.”
J.A. at 188.
B
On January 8, 2023, Paya entered into a Two-Step
Merger Agreement with Nuvei under Delaware Code Title 8,
section 251(h). Pursuant to the Merger Agreement, Nuvei
would “purchase all the shares of [Paya] Company Common
Stock” for $9.75 per share by “means of an offer to purchase.”
J.A. at 353, 375. In the Offer to Purchase, Nuvei covenanted to
“irrevocably accept for payment all Shares validly tendered,”
which required, inter alia, that the shareholder submit “a
properly completed and duly executed Letter of Transmittal in
accordance with the instructions of the Letter of Transmittal.”
J.A. at 226, 229. The Letter of Transmittal, in turn, stated that
the shares are validly tendered only if the shareholder “has full
power and authority to tender, sell, assign and transfer any and
all of the Shares tendered hereby.” J.A. at 445. Nuvei’s offer
was to be consummated at midnight on February 22, 2023, on
the condition that the number of shares “validly tendered”
totaled one share greater than 50% of the outstanding shares as
of the consummation time. J.A. at 212.
C
Appellants tendered their Earnout Shares in response to
Nuvei’s tender offer, but Nuvei did not purchase them because
under the SSA they “were not tendered free and clear of all
liens, restrictions, charges and encumbrances and not subject
to any adverse claims.” J.A. at 292. Appellants sued, claiming
Nuvei violated the SEC’s Best Price Rule, 17 C.F.R. §
240.14d-10(a)(2)—which requires the offeror to pay the same

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consideration for all securities tendered—by paying the
Appellants $0 per share while other common stockholders
received $9.75 per share. The District Court granted Nuvei’s
motion to dismiss for failure to state a claim, rejecting
Appellants’ Best Price Rule theory because no consideration
was “actually” paid so the Rule was never triggered. J.A. at 14.
Appellants appeal only that holding.
II2
The Best Price Rule and the related All Holders Rule
were “promulgated pursuant to sections 14(d) and 14(e) of the
Williams Act,” which itself was “enacted for the purpose of
protecting target company shareholders” in tender offers.
Polaroid Corp. v. Disney, 862 F.2d 987, 996 (3d Cir. 1988).
The All Holders Rule requires that a tender offer be “open to
all security holders of the class of securities subject to the ten-
der offer.” 17 C.F.R. § 240.14d-10(a)(1). The Best Price Rule,
in turn, requires the offeror to pay “to any security holder for
securities tendered in the tender offer [ ] the highest consider-
ation paid to any other security holder for securities tendered
in the tender offer.” Id. § 240.14d-10(a)(2).
2 The District Court had jurisdiction under 18 U.S.C.
§ 1331. We have appellate jurisdiction under 28 U.S.C.
§ 1291. We review the district court’s grant of a motion to
dismiss for failure to state a claim de novo. See Vallies v. Sky
Bank, 432 F.3d 493, 494 (3d Cir. 2006). To survive a motion
to dismiss, a “complaint must contain sufficient factual mat-
ter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

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We have addressed each rule just once. First, in
Polaroid Corp., we held that the All Holders Rule is validly
within the SEC’s rulemaking authority under the Williams Act
and that Section 14(d) of the Act creates an implied private
right of action to enforce the provision. 862 F.2d at 994–97.
Because the plaintiff lacked standing, we did not reach the
question—similar to the one presented here—whether a tender
offeror may reject certain shares based on its own
determination that those shares are invalid under the terms of
the tender offer. Id. at 992. Second, in In re Digital Island
Securities Litigation, we held that Rule 9(b)’s heightened
pleading standard for allegations of fraud applies to Best Price
Rule claims and that payments made before the commence-
ment of a tender offer are generally excluded from the reach of
the Best Price Rule. 357 F.3d 322, 334–37 (3d Cir. 2004). This
appeal presents a novel question of law: Whether the Best Price
Rule requires the acquiring company in a tender offer to pur-
chase any tendered shares, even those that are subject to self-
imposed transfer restrictions. We hold that it does not.
When interpreting a federal regulation, “we look to
well-established principles of statutory interpretation.”
Bonkowski v. Oberg Indus., 787 F.3d 190, 199 (3d Cir. 2015).
Our analysis of the Best Price Rule “begins and ends with the
ordinary meaning of” its plain text. United States v. Johnson,
114 F.4th 148, 154 (3d Cir. 2024). Appellants argue that,
because they are “security holders of the class of securities
subject to the tender” whose “securities [were] tendered in the
tender offer,” 17 C.F.R. § 240.14d-10(a)(1)–(2), they are enti-
tled to the $9.75 share price other shareholders received.
That reading goes too far. It is true that the Appellants
were common stockholders at the time the tender offer was

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initiated3 and that they tendered their shares in response to the
offer. But it would contort the Best Price Rule beyond recog-
nition to suggest that the Rule requires offerors to purchase
every tendered share, even those restricted by the parties’ prior
agreements. Again, the Rule requires that the consideration
paid to one tendering shareholder must be the same as the
highest consideration paid to any other tendering shareholder.
By its plain terms, the Rule relates to the consideration that
must be paid to tendering shareholders at the completion of a
proposed tender offer. But it is silent as to when, if ever, an
offeror must purchase tendered shares or whether that offeror
may include in the tender offer terms and conditions of
acceptance, such as Nuvei’s requirement that the tendered
shares be freely transferable or outstanding at the consumma-
tion of the change of control. We are unable to rewrite the Best
Price Rule to say something that it does not; that is a job for
Congress and the SEC. See Rotkiske v. Klemm, 589 U.S. 8, 14
(2019) (“It is a fundamental principle of statutory interpreta-
tion that ‘absent provision[s] cannot be supplied by the
courts.’ ”) (quoting Antonin Scalia & Bryan Garner, Reading
Law: The Interpretation of Legal Texts 94 (2012)).
3 The All Holders Rule requires an offer to be “open to
all security holders” of the same class of securities. 17 C.F.R.
§ 240.14d-10(a)(1). The Merger Agreement describes
Appellants’ Earnout Shares as common stock. J.A. at 387
(noting there were “132,238,723 shares of Company
Common Stock . . . issued or outstanding, of which 5,681,812
are subject to earnout and forfeiture in accordance with the
Support Agreement.”) (emphasis added). It is undisputed that
Nuvei’s tender offer was open to Appellants and thus com-
plied with the All Holders Rule.

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Appellants’ reading of the Best Price Rule also runs
counter to a relevant provision of the Williams Act. See 15
U.S.C. § 78n(d)(7); cf. Schreiber v. Burlington N., Inc., 472
U.S. 1, 9 n.9 (1985) (“Section 14(d) [ ] imposes specific sub-
stantive requirements on those making a tender offer. These
requirements include . . . the payment of the same price to all
those whose shares are purchased, 15 U. S. C. § 78n(d)(7).”);
Polaroid Corp., 862 F.2d at 994–95. Section 78n(d)(7)
requires equal payment, but only to those security holders
“whose securities are taken up and paid for pursuant to the ten-
der offer.” 15 U.S.C. § 78n(d)(7). In other words, the statute
presupposes that a tendered share might not be taken up and
paid for, leaving room for terms and conditions such as those
in Nuvei’s offer.
Appellants point to broad pronouncements in the Rule’s
legislative and regulatory history to support their strained read-
ing. But “[w]here the statutory language is unambiguous, the
court should not consider statutory purpose or legislative his-
tory.” In re Phila. Newspapers, LLC, 599 F.3d 298, 304 (3d
Cir. 2010); see also New Jersey v. New York, 523 U.S. 767,
813 (1998) (Breyer, J., concurring) (“[S]ilence is not ambigu-
ity[.]”). In any event, our reading comports with the SEC’s
guidance, common sense, and longstanding industry practice.
See, e.g., In re WHX, Exchange Act Release No. 47,980, 80
S.E.C. Docket 1153 (June 4, 2003) (noting that it is common
for an offer to be “open to all shareholders, but an action taken
independently by an individual shareholder encumbers the
shares and limits the shareholder’s ability to participate in the
offer”), overruled on other grounds by WHX Corp. v. SEC, 362
F.3d 854 (D.C. Cir. 2004).

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Because federal law is silent on the issue presented, it is
governed by the parties’ private agreements formed under state
law. Appellants did not appeal, and we do not reach, the
District Court’s holding that Nuvei did not breach the Merger
Agreement by refusing to purchase the Earnout Shares
because, pursuant to the SSA, those shares were forfeited prior
to the consummation of the change of control.
* * *
For these reasons, we will affirm the District Court’s
order dismissing Appellants’ Best Price Rule claim.
Counsel for Appellants
Javier Bleichmar
Derrick Farrell [ARGUED]
B LEICHMAR F ONTI & A ULD
Counsel for Appellees
Brian Burnovski [ARGUED]
Chui-Lai Cheung
Matthew Cormack
D AVIS P OLK & W ARDWELL
Kevin M. Coen
M ORRIS N ICHOLS A RSHT & T UNNELL

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