In a private message, another SHU member has pointed out to me that IOC made it extremely difficult for shareholders to vote NO with Dissent, essentially offering no assistance at all. Additionally, as I noted in some posts, it was very difficult to find a competent law firm in the Yukon that would or could provide assistance with the procedure, as the top three firms were already retained by the principals and Phil (who chose not to allow others to join him, which I found very poor spirited).
Combined, these issues provided no reasonable avenue for small retail shareholders to dissent from voting for a BOD action that many found objectionable. In this latest opinion from the Yukon, the judge makes a comment that Phil had time to sway others to his dissent position,["Mr. Mulacek had many opportunities to convince other shareholders to vote against the Arrangement Resolution and could have issued a dissident proxy circular] but it was not Phil's responsibility to do so. It was the responsibility of IOC to make known the procedures necessary for a proper dissent.
In a related point, had the vote required a 2/3 majority of ALL shareholders, the vote would have failed. 29,864,415 yes votes out of [at the time of the vote] approximately 51 million shares outstanding = 58.55%. But the bar was 2/3 of votes, not 2/3 of all shares, unfortunately.
If you look at the vote another way, institutional holders held approximately 45% of the outstanding shares and insiders held over 6% of shares. Thus, of the 51 million outstanding shares, over 26 million shares were held by institutions or insiders. Assuming that those institutions voted yes [and all voted], which is a very likely scenario, then only about 3.5 million of the remaining 25 million shares outstanding also voted YES for this deal; while over 21 million shares either did not vote or voted NO.
It would have taken a massive and overwhelming NO vote by small shareholders to overcome this inherent bias in voting. Retail shareholders never had a realistic chance to stop this deal, nor did Phil. IOC knew this and because of this knowledge, the patently inadequate "fairness" opinion takes on even greater significance. Had there been an independent flat-fee opinion that presented both the facts and the details and the documents to back up any assertions of fairness, it is very likely that at least some of the institutional holders would have demanded a better deal or, at the very least, disclosure of much more information regarding the deal. And that could have been enough to block this deal.