I really don't like this and I'm NOT sure whether Wyloo & BHP could do this in an attempt to circumvent the legalities MarlboroDog enlightened us to:
Could Wyloo agree to tender just enough shares such that BHP could take control, with a back room agreement that BHP will let Wyloo buy them back after the deal is finalized and BHP has control?
The end result would be a JV, but nobody would know until it was too late. BHP presumably gets regular updates regarding the number of shares tendered, so they could easily tell Wyloo how many they need.
No doubt there would be a collective WTF that even the SEC & OSC couldn't ignore if either party announced that Wyloo had decided to support BHP's $0.75 offer, but could it be stopped?
Does the BOD have the power to stop such a move given they've already recommended BHP's offer? Whether they would or not is another question.
Hobbit