Smartpay Holdings Ltd

[2025] NZHC 3195

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-2403 [2025] NZHC 3195

UNDER  Part 19 of the High Court Rules 2016

IN THE MATTER             of a scheme of arrangement under Part 15 of

the Companies Act 1993

AND

IN THE MATTER             of SMARTPAY HOLDINGS LIMITED

Applicant

Hearing:                   On the papers

Appearances:           J J Brown and J P Cooney for Applicant

L Fraser for Shift4 Holdings Ltd and Shift4 Payments LLC (in support)

Judgment:                24 October 2025

JUDGMENT OF LANG J

[on application for approval of scheme of arrangement]

This judgment was delivered by Justice Lang On 24 October 2025 at 11 am.

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Bell Gully, Auckland

Re SMARTPAY HOLDINGS LTD [2025] NZHC 3195 [24 October 2025]

[1]    Smartpay Holdings Ltd (Smartpay) is a financial services company that operates in New Zealand and Australia as an independent full-service EFTPOS1 provider. It is dual listed on the New Zealand Stock Exchange (NZX) and the Australian Stock Exchange (ASX).

[2]    Smartpay was incorporated in New Zealand on 11 June 1986.2 It was listed on the NZX on 12 March 1987 and on the ASX on 4 September 2013.

[3]    In New Zealand Smartpay is the largest direct connector of EFTPOS terminals to Paymark, the central electronic payment processing platform. In Australia, it is a payment facilitator that provides credit and debit card acquiring through EFTPOS terminals.

[4]    On 23 June 2025 Smartpay entered into a scheme implementation agreement (SIA) with Shift4 Payments LLC (Shift4 Payments). This followed a process that began with the receipt of various unsolicited and non-binding indicative proposals for the acquisition of Smartpay in early 2025.

[5]    Shift4 Payments is a limited liability company domiciled in Delaware. It was founded in 1999 under the name United Bank Card. Shift4 Payments does not currently hold any shares in Smartpay.

[6]    The SIA requires Shift4 Payments to acquire all the shares in Smartpay for the sum of $1.20 per share in cash. That sum is to be paid to those who own shares in Smartpay as at 7 pm on the date which is four business days after this Court grants its approval to the scheme of arrangement (the scheme).

1      Electronic Funds Transfer at Point of Sale.

2      The company was initially incorporated under the name Damba Holdings Ltd. It changed its name to Cube Capital Ltd on 30 April 2001 and then to Smartpay Ltd on 17 May 2006. It took on its present name on 15 July 2011.

[7]    As at 6 August 2025, Smartpay had 242,113,395 ordinary shares on issue. On the date when the scheme is to be implemented it expects to have 246,788,608 shares on issue.3

[8]    Shift4 Payments has nominated an indirectly wholly owned subsidiary,  Shift4 Holdings Ltd (Shift4 Holdings), to acquire the shares in Smartpay under the SIA. Shift4 Holdings is a limited liability company domiciled in Malta and was incorporated in the British Virgin Islands in 2022 as Shift4 (BVI) Ltd. The group of companies to which Shift4 Payments and Shift4 Holdings belong is a leading independent provider of  software  and  payment  processing  solutions  in  the United States of America. It also provides similar services in countries around the world.

[9]    Shift4 Payments and Shift4 Holdings (together, Shift4) have entered into a Deed Poll pursuant to which they have undertaken to Smartpay’s shareholders that they will perform their obligations under the SIA. This provides Smartpay’s shareholders with directly enforceable contractual rights against both companies.

[10]   The Overseas Investment Commission has approved the proposed scheme. However, it is also a condition of the SIA that the Court gives its approval to the proposal under Part 15 of the Companies Act 1993 (the Act). Smartpay therefore filed an originating application on 2 September 2025 seeking approval of the scheme, together with a without notice interlocutory application seeking initial procedural orders (initial orders).4 These were made on 17 September 2025.

Procedural background

[11]   The proposed scheme was announced on the market announcement platforms operated by the NZX and ASX on 18 September 2025. A copy of the scheme booklet was also uploaded to Smartpay’s website on the same date.

3      The forthcoming increase in the number of shares on issue is explained by the fact that Smartpay intends to cancel 169,931 shares held as treasury stock and to issue 4,845,144 new shares to certain executive employees under a long-term incentive plan it has entered into with those employees.

4      The originating application is dated 1 September 2025.

[12]   It was a condition of the SIA that the proposed scheme was to be approved by a meeting of Smartpay’s shareholders (the scheme meeting). Only persons who held shares in the company as at 11 October 2025 were eligible to vote on the resolution approving the scheme.

[13]   The initial orders made by the Court on 17 September 2025 prescribed the procedural steps that Smartpay needed to take in anticipation of a scheme meeting that was scheduled to be held on 14 October 2025. These included the preparation of a scheme booklet setting out the details of the proposed scheme for the company’s shareholders and other persons who had an interest in the proposal. Persons or entitles falling within this category included the company’s directors, Shift4, Smartpay’s auditors and the Takeovers Panel.

[14]   The scheme booklet was to be lodged on the NZX and ASX market announcement platforms and sent to company’s shareholders either electronically or by post. Copies were also to be made available for inspection by the company’s shareholders at Smartpay’s offices in Wairau Valley.

[15]   The scheme meeting was duly held on 14 October 2025. The votes cast in favour of the proposed scheme at the scheme meeting represented 95.21 per cent of the votes of all shareholders entitled to vote and who cast votes on the resolution  and 78.56 per cent of the votes of all shareholders entitled to vote. The results of the vote were published on the NZX and ASX market announcement platforms on the same day.

[16]   Approval of the proposed scheme by the company’s shareholders has led to the present application for approval of the proposal by the Court. In anticipation of this Smartpay arranged for written notice of the votes cast at the scheme meeting to be served on those persons who were entitled to appear and be heard at the hearing of the application for approval.

[17]   Shift4 Payments and Shift4 Holdings have filed a notice of their intention to appear in support of the application. No notice of opposition has been filed by any other party.

The law

[18]   Section 236(1) of the Act permits the Court to order a scheme of arrangement to be binding on a company on such terms and conditions as the Court thinks fit.

[19]   In the present case, s 236A of the Act is also engaged because Smartpay is a “code company” as that term is defined in s 2(1) of the Takeovers Act 1993. Further, the scheme affects the voting rights of Smartpay’s shareholders. Section 236A relevantly provides as follows:

236A   Arrangement or amalgamation involving code company

(1)If a proposed arrangement or amalgamation affects the voting rights of a code company, the  applicant  for  an  order  under section 236(1) must, at the same time as filing the application, notify the Takeovers Panel of the application.

(2)The court may not make an order under section 236(1) that affects the voting rights of a code company unless—

(a)the code company’s shareholders approve the arrangement or amalgamation in accordance with subsection (4); and

(b)either of the following applies:

(i)         the court is satisfied that the shareholders of the code company will not be adversely affected by the use of section 236(1) rather than the takeovers code to effect the change involving the code company; or

(ii)the applicant has filed a statement from the Takeovers Panel indicating that the Takeovers Panel has no objection to an order being made under section 236(1).

(3)The court need not approve a proposed arrangement or amalgamation merely because the Takeovers Panel has no objection to an order being made under section 236(1).

(4)For the purposes of subsection (2)(a), the code company’s shareholders may only approve the arrangement or amalgamation in the following way:

(a)by a resolution approved by a majority of 75% of the votes of the shareholders in each interest class entitled to vote and voting on the question; and

(b)by a resolution approved by a simple majority of the votes of those shareholders entitled to vote.

…

[20]   As can be seen from s 236A(4), a scheme of arrangement such as the present requires approval by 75 per cent of shareholders who are entitled to vote and who cast votes on the resolution. It must also be approved by a simple majority of the votes of those shareholders entitled to vote.

[21]   Section 236A(1)  and  (2)  are  also  relevant  in  the  present  context.  Section 236A(1) requires a code company to notify the Takeovers Panel of any application that it makes to the Court for its approval of a scheme of arrangement under s 236. Section 236A(2)(b)(ii) allows an applicant seeking the Court’s approval to file a statement from the Takeovers Panel indicating that the Takeovers Panel has no objection to the Court making the orders sought. This is commonly referred to as a “no objection letter”.

[22]   The Takeovers Panel has an important role to play in relation to a scheme such as the present. Its review of a proposal focusses particularly on whether classes of shareholders have been appropriately identified and on the quality of disclosure to shareholders in the scheme documentation. Although the granting of approval under s 236 is ultimately a matter for the Court, the fact that the Takeovers Panel has no objection to a scheme is obviously likely to be given significant weight.

[23]   The test to be applied where the Court is asked to approve a scheme of arrangement is now well  established through cases such as  Re Nuplex Industries,  Re Fliway Group Ltd and Re Abano Healthcare Group Ltd.5  In considering whether a scheme should be approved, the Court generally has regard to whether:

(i)there has been compliance with the statutory provisions as to meetings, resolutions and procedural directions made by the Court;

(ii)the scheme has been fairly put to the class or classes concerned so that shareholders have all the information reasonably necessary to enable them to judge and vote upon the proposals;

5      Re Nuplex Industries Ltd [2016] NZHC 1677; Re Fliway Group Ltd [2017] NZHC 3216; and

Re Abano Healthcare Group Ltd [2020] NZHC 3343.

(iii)the classes were fairly represented by those who attended the meeting, and that the statutory majority are acting bona fide and are not coercing the minority in order to promote interests adverse to those of the class whom they purport to represent; and

(iv)the arrangement was such that an intelligent and honest person of business, a member of the class concerned, and acting in respect of his or her interests, might reasonably approve it.

[24]   In considering whether an intelligent and honest person of business might reasonably approve the scheme, the Court will consider whether the proposed arrangements is generally fair and equitable.6

Has there been compliance with the relevant statutory provisions and procedural directions given by the Court?

[25]   For the reasons that follow, the evidence filed in support of the application satisfies me that Smartpay has complied fully with both the relevant statutory provisions and the initial orders made by the Court on 17 September 2025.

[26]   Smartpay lodged a copy of the scheme booklet in its final form on the NZX and ASX market announcement platforms on 18 September 2025. On the same date it forwarded a copy of the scheme booklet to Smartpay’s directors and auditors and made the scheme booklet available for inspection and downloading on its website. A copy was also sent to the Takeovers Panel.

[27]   Smartpay has also complied with its obligation under s 236A(1) to notify the Takeovers Panel of the present application. In the present case there is only one class of shares but the quality of disclosure would still have been a matter in which the Panel was interested. The Takeovers Panel is obviously satisfied that the quality of disclosure Smartpay provided to its shareholders was sufficient because it issued a “no objection letter” on 16 October 2025.

6      Re Nuplex Industries Ltd, above n 5, at [11], citing Re Auckland International Airport [2014] NZHC 405 at [9].

[28]   Smartpay engaged Computershare Investor Services Ltd (Computershare), an investor services company, to assist it in complying with the initial orders. Computershare is also Smartpay’s share registrar.

[29]   The initial orders required Smartpay to provide shareholders with access to the scheme booklet no later than 15 working days before the scheme meeting. Computershare’s staff provided the scheme booklet to all Smartpay shareholders listed on Smartpay’s share register as at 7pm on 17 September 2025. This was done in electronic format on 18 September 2025 by sending shareholders an email that contained a link to the scheme booklet. Then, on 23 September 2025, Computershare’s staff sent the scheme booklet in hard copy form to those shareholders who had not elected to receive documents from Smartpay in electronic form. Smartpay did not receive any requests for a copy of the scheme booklet from shareholders who acquired shares in Smartpay after 7 pm on 17 September 2025.

[30]   Persons entitled to vote at the scheme meeting could do so in person or by proxy. Prior to the scheme meeting Computershare’s staff confirmed the list of shareholders in the company as at 11 October 2025 for the purposes of determining who was eligible to vote at the meeting. They also checked to ensure that all proxy forms had been correctly completed.

[31]   The scheme meeting was held on 14 October 2025 at 10.30 am  AEDT7 (12.30 pm NZDT8). It took place online by virtual webcast and in person in a conference room at the Sydney Masonic Centre. Computershare’s staff registered shareholders on arrival at the meeting. They also collected voting forms from the floor to check that they had been correctly completed and that shareholders and proxies were eligible to vote. Computershare’s staff then counted the votes and provided Smartpay with a certificate setting out the results.

[32]Eligible shareholders voted on the resolution approving the scheme as follows:

(i)190,063,796 votes were cast in favour of the resolution;

7      Australian Eastern Daylight Time.

8      New Zealand Daylight Time.

(ii)9,567,508 votes were cast against the resolution; and

(iii)62,496 votes were cast to abstain.

[33]The votes in favour of the resolution represented:

(i)78.56 per cent of the votes as a percentage of the maximum total votes; and

(ii)95.21 per cent of the votes as a percentage of the maximum meeting votes (excluding votes that were to abstain).

[34]   The resolution was accordingly passed in accordance with the majorities required by s 236A(4) of the Act.

Was the scheme fairly put to the shareholders?

[35]   The primary means by which Smartpays’ shareholders were made aware of the scheme was through the scheme booklet that was forwarded to all shareholders either electronically or by post. As I have already noted, this was also accessible on Smartpay’s website and a hard copy was made available for inspection at Smartpay’s offices.

[36]   In my view, the scheme booklet fully and fairly explained the proposal, including the reasons why it was put forward and its intended effect. Further, it was distributed  to  Smartpays’  shareholders  within  sufficient  time  before   the  scheme meeting to enable them to consider the proposal and, if necessary, take steps to question and oppose it at the meeting. Shareholders also had the ability to oppose the present application if they wished to do so but none have taken that step.

[37]   In this context the Court is also entitled to place considerable weight on the fact that the Takeovers Panel has issued a “no objection letter”.9

9      Re Abano Healthcare Group Ltd, above n 5, at [31]; and Re Pushpay Holdings Ltd [2023] NZHC 1083 at [19].

[38]   I therefore have no hesitation in concluding that the scheme was fairly put to shareholders.

Were the classes fairly represented at the scheme meeting?

[39]   This factor is not relevant in the present case because Smartpay’s shareholders fall within a single class.

Was the arrangement such that an intelligent and honest person of business might reasonably approve it?

[40]   In the scheme booklet Smartpay’s directors advised the company’s shareholders that they unanimously supported the proposed arrangement and they explained their reasons for doing so. These include the fact that the price to be paid by Shift4 Holdings represents a premium on the price at which Smartpay’s shares were trading before any offer was received to acquire the shares in the company.

[41]   In mid-March 2025, Smartpay announced it had received a non-binding indicative offer by another party to acquire the shares in the company for $1.00 per share. On 14 March 2025, the last trading day prior to that announcement, the closing share price of Smartpay’s shares had been $0.63 per share. Smartpay’s shares immediately went up to $0.85 per share after the offer was announced to the market. The price that Shift4 Holdings has agreed to pay therefore represents a premium     of 90.5 per cent on the price at which Smartpay’s shares were trading before the non-binding indicative offer from the third party was announced. It also represents a premium of 18.8 per cent on the closing share price of $1.01 on 19 June 2025, the day before Smartpay announced that it had entered into the SIA with Shift4 Payments.

[42]   In addition, the purchase price represents a 96.1 per cent premium on the one-month volume weighted average price (VWAP) for Smartpay shares on the NZX Main Board to 14 March 2025 of $0.61 per share. Similarly, it represents a premium of 102.2 per cent on the three-month VWAP to 14 March 2025 of $0.59 per share.

[43]   It is therefore no surprise that those shareholders who attended the scheme meeting on 14 October 2025 overwhelmingly supported the proposal. The authorities

emphasise that the Court should give particular weight to the views of the shareholders because they are best placed to determine what is in their own interests.10 In the present case the outcome of the votes cast at the scheme meeting must be regarded as clear and definitive.

[44]   The shareholders also knew there was little risk that their shares would be transferred to Shift4 Holdings before it has paid for them. Shift4 Holdings proposes to fund the purchase of shares in Smartpay using its existing cash reserves. The SIA requires Shift4 Holdings to lodge the funds that are to be paid to shareholders into a trust account operated by Computershare no later than 5 pm on the day before the scheme is to be implemented.

[45]   In deciding how to vote, shareholders are also likely to have placed weight on a report that Smartpay commissioned from Calibre Partners, an independent chartered accounting and advisory firm. Calibre Partners has considerable experience in acting as independent advisors for companies subject to the Takeovers Code. The Takeovers Panel approved the appointment of Calibre Partners as the independent advisor for this scheme on 10 July 2025.

[46]   Calibre Partners assessed the value of Smartpay’s shares as being within the range of $1.07 and $1.43. The consideration that Shift4 Holdings proposes to pay under the scheme obviously falls within this range. As the Court has done in other cases, I place significant weight on the report issued by the independent advisor.11

[47]   I also place weight on the directors’ opinion that, if the proposal does not proceed, Smartpay’s share price is likely to decrease from its current level of $1.195 cents per share.12 In the absence of any replacement offer it may well revert to the price at which shares in the company were trading on 14 March 2025. This would result in shareholders losing the opportunity to make a significant gain on the sale of

10     Re Abano Healthcare Group Ltd, above n 5, at [36]; Re Nuplex Industries Ltd, above n 5, at [24];

Re Fliway Group Ltd, above n 5, at [24].

11     See for example, Re Nuplex Industries Ltd, above n 5 at [27]; Re Fliway Group Ltd, above n 4, at [23]; Re Abano Healthcare Group Ltd, above n 5, at [39].

12     The closing price at which they were trading on 23 October 2025.

their shares. These factors mean it is difficult to see why any intelligent and honest person in business would not approve the scheme.

[48]   Further, no third party will be adversely affected or prejudiced by the scheme. Nor will it have any impact on Smartpay’s solvency or viability. Its only secured creditor will not be affected in any adverse way by the scheme because it affects only the shares of the company and not its assets. For these reasons the scheme must be regarded as fair and equitable.

Result

[49]   I make orders as sought in paragraph one of the  originating  application dated 1 September 2025. These are that the scheme of arrangement described in the Scheme Plan annexed to the Court’s orders is approved and binding upon:

(a)Smartpay Holdings Limited;

(b)Shift4 Holdings Limited;

(c)Shift4 Payments LLC; and

(d)every person who is a Scheme Shareholder in terms of the Scheme Plan.

[50]The draft final orders filed by counsel for the applicant may now be sealed.

[51]   Smartpay has leave to seek further directions and/or amendments of or modification to the scheme if any aspect of the implementation of the scheme should make this necessary.

Lang J