RE:It’s happening…maybe. I believe this letter misstates a critical point: the 20% of consideration is not a free option. If it were, I believe this transaction as is would be dead in the water.
This is what the Pentwater filing actually says:
The DR Parties will mediate and, if necessary, arbitrate (a) the fair value amount remaining to be paid, if any, by the Purchaser to the Securityholders to resolve the Dissent Proceeding, (b) the damages or compensation amount, if any, to be paid by the Purchaser or any of its Affiliates to the Securityholders to resolve the Oppression Claim.
In reality, Pentwater will almost certainly get more. But other shareholders still have the right to get fair value in the dissent process through the courts even if it's not practical.
I'm not completely clear on the majority of minority requirements but it also seems that shareholders are not required to vote against the transaction to secure their right of appraisal, only not vote for the transaction (and this makes some sense as in some cases it's more effective to try to prevent a vote quorum than vote no).
The most likely path to recut the deal runs through the 17.5% hurdle, which seems a hard ask unless a large institution does it given the amount of paperwork involved. The way for regulators to punt the issue is to stop the vote and investigate, which gives shareholders time to work through the dissent process paperwork and I wouldn't be surprised if the extra 1% can be secured during that time.
To some extent, I suspect the lawyers posturing now are laying the groundwork for future lawsuits after the deal closes if it closes. Not Canadian so less familiar with y'all's laws but in the US this mess might end up with a token class action settlement in a few years.