National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions -- issuer conducting a bid through the facilities of the TSX and NYSE -- NYSE is not a designated exchange under subsection 101.2(1) of the Act -- relief granted, provided that any purchases made through the NYSE comply with the TSX NCIB rules.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 101.2(1), 104(2)(c).
October 22, 2008
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
SASKATCHEWAN AND ONTARIO
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
POTASH CORPORATION OF
The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) 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 the Filer's common Shares (the Shares) made by the Filer through the facilities of the New York Stock Exchange (the NYSE) (the Requested Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the Saskatchewan Financial Services 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 Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, the Northwest Territories, Nunavut, Prince Edward Island, Quebec and the Yukon; and
(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in National Instrument 14-101 Definitions have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
(a) The Filer is a corporation organized under the Canada Business Corporations Act;
(b) The Filer's head office is located in Saskatoon, Saskatchewan;
(c) The Filer is a reporting issuer in all of the provinces and territories of Canada that incorporate such a concept in their legislation and the Filer is not in default of any requirements of any applicable securities legislation in any of the provinces and territories of Canada in which it is a reporting issuer;
(d) The Filer is a registrant with the Securities and Exchange Commission in the United States and is subject to the requirements of the United States Securities Act of 1934;
(e) As at July 31, 2008, the Filer had approximately 304,967,498 Shares issued and outstanding;
(f) The Shares are listed and posted for trading on the Toronto Stock Exchange (the TSX) and the New York Stock Exchange (the NYSE);
(g) On January 25, 2008, the Filer filed a Notice of Intention to Make a Normal Course Issuer Bid, as amended (the Notice of Intention), with the TSX and applicable securities regulatory authorities in order to permit it to make normal course issuer bid purchases of its Shares through the facilities of the TSX and NYSE;
(h) The by-laws, 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 a year;
(i) Issuer bid purchases made through the facilities of the TSX in accordance 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 the NYSE are not exempt pursuant to such exemption because the Decision Makers recognize the TSX as a "designated exchange" for the purpose of the Designated Exchange Exemption but not the NYSE;
(j) Issuer Bid purchases made through the facilities of the NYSE are exempt from the Issuer Bid Requirements pursuant to the "normal course issuer bid exemption" contained in the Legislation (the NCIB Exemption), which limits the aggregate number of securities which may be purchased during a 12 month period to 5% of the securities of that class issued and outstanding at the commencement of that period;
(k) Purchases of Shares by the Filer of up to 10% of the public float through the facilities of the NYSE would be permitted under the rules of the NYSE and under US federal securities law;
(l) No other exemptions exist under the Legislation that would otherwise permit the Filer to make purchases through the NYSE on an exempt basis where the purchases exceed the 5% limitation in the NCIB Exemption; and
(m) The Filer may from time to time, in the future, file a new notice of intention with the TSX to make purchases of Shares through the facilities of both the TSX and the NYSE where the purchases fall within the 10% limit under the TSX NCIB Rules but exceed the 5% limitation in the NCIB Exemption.
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 Decisions Makers under the Legislation is that the Requested Relief is granted provided that the purchases of Shares made by the Filer through the facilities of the NYSE are part of a normal course issuer bid that complies with the TSX NCIB Rules.