SMART Technologies Inc.

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Section 104(2)(c) -- Issuer bid -- relief from issuer bid requirements in sections 93 to 99.1 of the Act -- issuer conducting a normal course issuer bid through the facilities of the TSX and NASDAQ -- relief granted, provided that purchases are subject to a maximum aggregate limit mirroring the TSX NCIB rules.

Applicable Legislative Provisions

Securities Act, R.S.O. 1990, c. S.5, as am., ss. 93 to 99.1, 101.2, 104(2)(c).

Citation: SMART Technologies Inc., Re, 2011 ABASC 513

October 5, 2011

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ALBERTA AND ONTARIO

(the Jurisdictions)

AND

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF

SMART TECHNOLOGIES INC.

(the Filer)

DECISION

Background

The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Makers) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) that the requirements contained in the Legislation relating to issuer bids (the Issuer Bid Requirements) shall not apply to purchases of class A subordinate voting shares of the Filer (Class A Shares) made by the Filer through the facilities of the NASDAQ Stock Market (NASDAQ) pursuant to the Share Repurchase Program (as defined below) and any Future Share Repurchase Programs (as defined below) (the Exemption Sought).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):

(a) the Alberta Securities Commission is the principal regulator for this application;

(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland & Labrador, Yukon, Northwest Territories and Nunavut; and

(c) this decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.

Interpretation

Terms defined in National Instrument 14-101 Definitions or MI 11-102 have the same meaning if used in this decision, unless otherwise defined herein.

Representations

This decision is based on the following facts represented by the Filer:

1. The Filer is a corporation amalgamated under the Business Corporations Act (Alberta).

2. The Filer's head office is in Calgary, Alberta.

3. The Filer is a reporting issuer in each of the provinces and territories of Canada and the Filer is not in default of any requirement of the securities legislation in the jurisdictions in which it is a reporting issuer.

4. The Filer is a registrant with the Securities and Exchange Commission in the United States (the SEC) and is subject to the requirements of the United States Securities Exchange Act of 1934 (the 1934 Act).

5. As at August 18, 2011, the Filer had 44,308,596 Class A Shares issued and outstanding.

6. The Class A Shares are listed for trading on the Toronto Stock Exchange (TSX) and NASDAQ.

7. In a news release dated August 19, 2011, the Filer announced that its board of directors had approved a share repurchase program (the Share Repurchase Program) and normal course issuer bid under which it was authorized, subject to the receipt of regulatory approval from Canadian securities regulatory authorities, to purchase for cancellation through the facilities of the TSX and NASDAQ up to 4,000,000 Class A Shares, or approximately 9% of its public float of 41,612,849 Class A Shares.

8. The by-laws, rules, regulations and policies of the TSX relating to normal course issuer bids (the TSX NCIB Rules) allow normal course issuer bid purchases of up to 10% of the public float (as defined in the TSX NCIB Rules) of the class of securities subject to such a bid to be made through the facilities of the TSX over the course of any 12-month period (the 10% Limit).

9. Issuer bid purchases made through the facilities of the TSX in compliance with the TSX NCIB Rules are exempt from the Issuer Bid Requirements pursuant to the "designated exchange exemption" contained in the Legislation (the Designated Exchange Exemption), while purchases through the facilities of NASDAQ are not exempt pursuant to such exemption, because NASDAQ is not recognized as a "designated exchange" for the purpose of the Designated Exchange Exemption.

10. Issuer bid purchases made through the facilities of NASDAQ are exempt from the Issuer Bid Requirements under the "other published markets exemption" contained in the Legislation (the Other Published Markets Exemption), which limits the purchases that may be made by the Filer in a 12-month period to 5% of the securities of the particular class outstanding at the commencement of that period (the 5% Limit).

11. The Share Repurchase Program will be effected in accordance with the 1934 Act and the rules of the SEC made pursuant thereto, including the safe harbour provided by Rule 10b-18 under the 1934 Act (collectively, Applicable US Securities Laws), which, among other things, restrict the number of shares that may be purchased on a single day, subject to certain exceptions for block purchases, based on the average daily trading volumes of the Class A Shares on NASDAQ.

12. Purchases by the Filer through the facilities of NASDAQ of up to 10% of the public float of Class A Shares would be permitted under the rules of NASDAQ and under Applicable US Securities Laws.

13. The Legislation contains no exemption from the Issuer Bid Requirements that would permit the Filer to make purchases through NASDAQ in excess of the 5% Limit.

14. The Filer may from time to time file a renewal or new notice of intention with the TSX to make purchases of Class A Shares in excess of the 5% Limit through the facilities of both the TSX and NASDAQ pursuant to the TSX NCIB Rules (Future Share Repurchase Programs).

Decision

Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.

The decision of the Decision Makers under the Legislation is that the Exemption Sought is granted, provided that:

(a) purchases of Class A Shares made by the Filer through the facilities of NASDAQ are part of a normal course issuer bid that (apart from the use of NASDAQ facilities) complies with the TSX NCIB Rules; and

(b) the Filer does not acquire Class A Shares in reliance on the Other Published Markets Exemption if the aggregate number of Class A Shares purchased by the Filer and any person or company acting jointly or in concert with the Filer, in reliance on this decision, the Designated Exchange Exemption and the Other Published Markets Exemption within any period of 12 months, exceeds 5% of the outstanding Class A Shares on the first day of such 12-month period.

For the Commission: