"It appears that unless there is a better offer, the deal will be dead and there will be no merger."

Are you saying this based on the number of dissenters?

One of the "Anonymous" posters at stockigloo wrote "please understand that this 5% condition is contractual and not by law. This means that it could be waived if the parties so wish".

I don't know whether or not his statement is correct (though it sounds sensible enough).