Large Green, I'm not a legal/contracts expert but my first thought was, no, this has to occur later. How could WMIH issue millions of more shares before merger. That wouldn't be fair to Nationstar and they would cry foul, because WMIH would be diluting the value of WMIH shares (assuming Nationstar is coverting their shares over to WMIH shares).
However, then I read the key factors in the WMIH-NSM merger below. The two below caught my attention. Notice the second one states "the fact that the merger consideration is fixed and will not fluctuate based upon changes in the market price of the WMIH common stock between the date of the merger agreement and the date of the consummation of the proposed combination." Now that's an interesting statement. That implies WMIH might be able to issue more shares and it wouldn't matter to Nationstar. But again, I'm no expert in this area....
ND9
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KEY FACTORS IN WMIH-NSM MERGER
• the belief that WMIH’s platform, together with and more creativity around capital markets execution, could create incremental economics through more efficient monetization of mortgage servicing rights and other assets;
• the belief that the terms of the merger agreement, including the merger consideration, were the result of extensive arm’s-length negotiations between representatives of WMIH and Nationstar; and the fact that the merger consideration is fixed and will not fluctuate based upon changes in the market price of the WMIH common stock between the date of the merger agreement and the date of the consummation of the proposed combination, providing greater certainty to WMIH regarding the anticipated financial benefits of the combination;