It's up to the Securities and Exchange Commission (SEC) to decide if San Miguel Corp. is covered by the mandatory tender offer rule.

That was basically what Philippine Stock Exchange (PSE) president Lim reiterated on Thursday.

“We have formally endorsed to the SEC the issue on the applicability of the rules. The exchange will not decide on that,” Lim said.

In an ongoing saga on how to interpret San Miguel's indirect and layered acquisition of a 50.1 percent stake in giant oil company, Petron Corp., the PSE has at one point wanted to decide on the issue itself.

On Wednesday, the PSE's disclosure department gave San Miguel 24 hours to explain why it should not be sanctioned for not providing a copy of the option agreement it inked with one of the local units of Petron's majority owner, Ashmore Group.

San Miguel snubbed the disclosure department's order, citing that it has already explained earlier that since the counterparty of the option agreement is a non-listed firm, Ashmore's subsidiary SEA Refinery Holdings BV, the option agreement is confidential.

While San Miguel's $10 million-worth option agreement, which expires in 2 years, gave the diversified conglomerate an indirect and unconsumed majority ownership of Petron, San Miguel officials last week clinched key board and management positions in Petron.

This led Petron's minority shareholders, who account for less than 10 percent of the country's biggest oil refiner and retailer to question on Friday the substance of the option agreement.

In a previous interview with abs-cbnnews.com/Newsbreak, lawyer Reynaldo Geronimo, who spoke in behalf of some Petron's minority shareholder, said the option agreement could have been San Miguel's way to circumvent the mandatory tender offer rule, which could have given them an opportunity to sell their shares at an almost 40 percent premium over Petron shares' current market price.

With PSE tossing the tender offer issue to the SEC, it seems that San Miguel could dodge the issue after all.

Earlier, an anonymous SEC official said, “[San Miguel] is not obliged because it has yet to 'formally come in and consummate the purchase shares' in Petron.”

“When the transaction is completely done then that's the only time we will require them to do a tender offer,” explained the official.

The SEC official also explained that the election of 3 San Miguel officials--Messrs. Ramon Ang, Eduardo Cojuangco, and Estelito Mendoza--as directors of the Petron board should not be taken as a takeover in Petron as they were nominated to the board by the Ashmore Group.

Why the Ashmore Group is confident about giving up 3 of the 10 Petron board seats, including the board chairmanship--and handing these over to representatives of San Miguel who have not yet paid for a direct stake, is a different story altogether.