Since the deal was announced, SES has been insisting that both Etihad and Jet are in joint control and are PAC (persons acting in concert) as per Sebi regulations.
This is in contrast to the stance believed to be taken by Sebi, which feels the present promoters and Etihad are not in joint control of Jet Airways.
However, the Competition Commission of India (CCI) , while clearing the 24% stake sale by Jet Airways to Etihad Airways, noted that Etihad was in joint control of Jet Airways.
SES has been of the opinion since announcement of the deal that both Etihad and Jet are in joint control and were PAC as per SAST regulations. Now that the same has been established by the CCI order, provisions of SAST in this regard have been triggered and Etihad and its PAC are legally bound to make an open offer, said an SES report released on Thursday.
An important issue to consider is whether they will be treated in default of SAST or not. What is the trigger point, the date of deal (April 24) or the date on which CCI held them in joint control.
SEBIs SAST or Substantial Acquisition of Shares and Takeovers rules govern M&A activity of listed entities. Shares of Jet Airways rose during intraday trade on speculation that Sebi may rethink the need for an open offer following the Jet-Etihad deal.
The companys shares rose 3.9% during intraday trade, before settling at R302.1, up 0.48% over the previous days close.
SES now believes Sebi could find itself in a difficult situation over the open offer issue.
If Sebi takes the date of CCI order as date for open offer obligation, inadvertently it finds itself in a position of having acted against the interest of investor whose protection is its mandate and against its own regulations. If Sebi takes deal announcement date as date of obligation to announce open offer, it has to go back on its decision conveyed to Etihad/Jet and current promoters, the SES report said.
CCI had approved the acquisition of 24% stake in the Naresh Goyal-led carrier by the Abu Dhabi-based airline in November. Jet and Etihad had last month announced the closure of the R2,069-crore deal, marking the first FDI infusion by an airline in the Indian aviation sector.