sv3asr
As filed
with the Securities and Exchange Commission on June 28, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
POTASH CORPORATION OF SASKATCHEWAN INC.
(Exact name of registrant as specified in its charter)
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Canada
(State or other jurisdiction of incorporation or organization)
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Not applicable
(I.R.S. Employer Identification No.) |
122 1st Avenue South, Suite 500
Saskatoon, Saskatchewan, Canada S7K 7G3
(306) 933-8500
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
William J. Doyle
Potash Corporation of Saskatchewan Inc.
122 1st Avenue South, Suite 500
Saskatoon, Saskatchewan, Canada S7K 7G3
(306) 933-8500
(Names, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Edward B. Winslow
Jones Day
77 West Wacker
Chicago, Illinois 60601
(312) 782-3939
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William Braithwaite
Stikeman Elliott
5300 Commerce Court West
199 Bay Street
Toronto, Ontario, Canada M5L 1B9
(416) 869-5500 |
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box: o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
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Large accelerated filer x
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Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company)
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Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Offering Price Per Unit/ |
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Proposed Maximum Aggregate Offering Price/ |
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Title of Each Class of Securities to be Registered |
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Amount to be Registered(1) |
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Amount of Registration Fee |
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Debt Securities |
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$2,000,000,000 |
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(2) |
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(1) |
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Includes debt securities that are to be offered outside the United States but may be resold from time to time in the United States in transactions
subject to registration under the Securities Act of 1933, as amended. The debt securities are not being registered for purposes of sales outside the United
States. |
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(2) |
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In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, the registrant is deferring payment of all registration fees. |
PROSPECTUS
$2,000,000,000
Potash Corporation of
Saskatchewan Inc.
Debt Securities
We may offer from time to time, in one or more series, the debt
securities described in this prospectus. The debt securities may
be offered and sold by us in one or more offerings with a total
aggregate principal amount not to exceed $2,000,000,000. This
prospectus describes some of the general terms that may apply to
the debt securities. The specific terms of any series of debt
securities to be offered will be described in one or more
supplements to this prospectus. You should read this prospectus
and the applicable prospectus supplement carefully before you
invest.
We may offer and sell the debt securities to or through one or
more underwriters, dealers or agents, or directly to purchasers,
on a continuous or delayed basis. Each prospectus supplement
will provide the names of the underwriters, dealers or agents,
if any, and the amount, price and terms of the plan of
distribution relating to the debt securities to be offered
pursuant to such prospectus supplement, as well as the net
proceeds we expect to receive from such sale. Our debt
securities may be denominated in U.S. dollars or in any other
currency, currency units or composite currencies as we may
designate.
Investing in our securities involves risks. You should
consider carefully the risk factors described in the applicable
prospectus supplement and in any documents incorporated by
reference in this prospectus or the applicable prospectus
supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is June 28, 2010.
TABLE OF
CONTENTS
You should rely only on the information included in or
incorporated by reference into this prospectus. We have not
authorized anyone to provide you with additional or different
information from that included in or incorporated by reference
into this prospectus. The information contained in this
prospectus is accurate only as of the date on the front cover of
this prospectus, and any information we have incorporated by
reference in this prospectus is accurate only as of the date of
the document incorporated by reference, regardless of the time
of delivery of this prospectus or the securities offered hereby.
We are not making an offer of these securities in any state or
jurisdiction where the offer is not permitted. The securities
described in this prospectus will not be offered or sold to a
resident of Canada in contravention of the securities laws of
Canada or any province or territory thereof.
As permitted under the rules of the Securities and Exchange
Commission, or SEC, this prospectus incorporates important
business information about us that is not included in or
delivered with this prospectus but that is contained in
documents that we file with the SEC. You may obtain copies of
the documents that are incorporated by reference into this
prospectus, without charge, from the website maintained by the
SEC at
http://www.sec.gov.
See Where You Can Find More Information and
Incorporation by Reference of Certain Documents.
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ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the SEC using a shelf registration
process. Under this shelf process, we may, from time to time,
sell in one or more offerings, any amount of the debt securities
described in this prospectus up to an aggregate principal amount
of $2,000,000,000 (or its equivalent in foreign currencies,
currency units or composite currencies).
This prospectus provides you with a general description of the
debt securities we may offer. This summary description is not
intended to be a complete description of the debt securities.
Each time we sell debt securities, we will provide one or more
prospectus supplements that will contain specific information
about the terms of that offering. Those terms may vary from the
terms described in this prospectus. As a result, the summary
description of the debt securities in this prospectus is subject
to, and qualified by reference to, the description of the
particular terms of any debt securities contained in any related
prospectus supplement. A prospectus supplement may also add,
update or change other information contained in this prospectus.
Before you invest in a particular issue of debt securities, you
should read both this prospectus and any related prospectus
supplement carefully, together with the additional information
described below under the headings Where You Can Find More
Information and Incorporation by Reference of
Certain Documents.
In this prospectus, except as otherwise indicated or as the
context otherwise requires, PotashCorp,
we, our, us and the
company refer to Potash Corporation of Saskatchewan
Inc. and its consolidated subsidiaries.
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents it incorporates by reference
contain forward-looking statements within the meaning of the
U.S. Private Securities Litigation Reform Act of 1995 that
relate to future events or our future financial performance.
Statements containing words such as could,
expect, may, anticipate,
believe, intend, estimate,
plan and similar expressions constitute
forward-looking statements. These statements are based on
certain factors and assumptions as set forth in this prospectus
and the documents incorporated by reference herein, including
assumptions regarding foreign exchange rates, and expectations
regarding growth rates, results of operations, performance,
business prospects and opportunities and effective income tax
rates. We consider these factors and assumptions to be
reasonable based on information currently available.
We disclaim any obligation to update or revise any
forward-looking statements, whether as a result of new
information, future events or otherwise, except as required by
law.
Forward-looking statements are subject to important risks and
uncertainties that are difficult to predict. The results or
events predicted in forward-looking statements may differ
materially from actual results or events. Some of the factors
that could cause actual results or events to differ from current
expectations include the following, some of which are described
in greater detail in the documents that are incorporated by
reference into this prospectus:
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variances from our assumptions with respect to foreign exchange
rates, and expectations regarding growth rates, results of
operations, performance, business prospects and opportunities
and effective income tax rates;
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fluctuations in supply and demand for fertilizer, including
fluctuations as a result of economic or political conditions in
our markets, which, among other things, can cause volatility in
the prices of our fertilizer products;
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volatility in the price of natural gas, which is the primary raw
material used for our nitrogen products, and risks associated
with our ability to manage natural gas costs in the United
States through hedging activities;
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fluctuations in the prices and availability of other raw
materials, including sulfur, which is a primary input in our
phosphate operations;
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fluctuations in the cost and availability of transportation and
distribution for our raw materials and products, including
railcars and ocean freight;
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changes in competitive pressures, including pricing pressures;
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the results of sales contract negotiations with China and India;
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timing and amount of capital expenditures;
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changes in capital markets and corresponding effects on our
investments, and changes in currency and exchange rates;
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unexpected or adverse weather conditions, which can impact
demand for fertilizer and timing of fertilizer sales during the
year;
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unexpected geological conditions, including water inflows;
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imprecision in reserve estimates;
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the outcome of legal proceedings;
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strikes or other forms of work stoppage or slowdown;
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changes in, and the effects of, government policy and
regulations, including environmental regulations and regulations
and actions affecting our transportation and sale of natural
gas, which could increase our costs of compliance and otherwise
affect our business;
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acquisitions we may undertake in the future; and
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earnings, exchange rates and the decisions of taxing
authorities, all of which could affect our effective
tax rates.
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These risks and uncertainties are discussed in more detail under
the headings Risk Factors and
Managements Discussion and Analysis of Financial
Condition and Results of Operations in our annual report
on
Form 10-K
for the fiscal year ended December 31, 2009 and in other
documents filed by us with the SEC and the Canadian provincial
securities commissions. You may obtain copies of these documents
as described under the headings Where You Can Find More
Information and Incorporation by Reference of
Certain Documents.
As a result of these factors, we cannot assure you that any of
the events or results anticipated by forward-looking statements
included or incorporated by reference in this prospectus will
occur or, if they do, what impact they will have on our business
or on our results of operations and financial condition.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other
information with the SEC. Our SEC filings are available to the
public over the internet at the SECs website at
http://www.sec.gov.
You may also read and copy any document we file with the SEC at
the SECs Public Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the Public Reference Room. The
documents we file with the SEC are also available on our website
at
http://www.potashcorp.com.
Except for the documents incorporated by reference into this
prospectus, the information on our website is not part of this
prospectus.
INCORPORATION
BY REFERENCE OF CERTAIN DOCUMENTS
The SEC allows us to incorporate by reference into
this prospectus information contained in documents we file with
the SEC, which means that we can disclose important information
to you by referring you to documents that we have previously
filed with the SEC and documents that we will file with the SEC
in the future. The information incorporated by reference is an
important part of this prospectus, and information in documents
that we file subsequently with the SEC will automatically update
and supersede information in this prospectus. In the case of a
conflict or inconsistency between information set forth in this
prospectus and information incorporated by
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reference into this prospectus, you should rely on the
information contained in this prospectus unless the information
incorporated by reference was filed after the date of this
prospectus. We incorporate by reference:
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our annual report on
Form 10-K
for the fiscal year ended December 31, 2009, filed with the
SEC on February 26, 2010;
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our quarterly report on
Form 10-Q
for the period ended March 31, 2010, filed with the SEC on
May 7, 2010; and
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our current reports on
Form 8-K
filed with the SEC on May 7, 2010 and May 27, 2010.
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We also incorporate by reference any future filings we make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
U.S. Securities Exchange Act of 1934 until we sell all of the
debt securities we are offering with this prospectus.
We will provide to you a copy of any or all of the above filings
that have been incorporated by reference into this prospectus,
excluding exhibits to those filings (other than exhibits that
are specifically incorporated by reference into those filings),
upon your request, at no cost. Any request may be made by
writing or calling us at the following address or telephone
number:
Potash
Corporation of Saskatchewan Inc.
122
1st
Avenue South, Suite 500
Saskatoon, Saskatchewan, Canada S7K 7G3
Telephone:
(306) 933-8500
In addition, you may access all of the above filings on our
website at
http://www.potashcorp.com.
Except for the documents incorporated by reference into this
prospectus, the information on our website is not part of this
prospectus.
PRESENTATION
OF FINANCIAL INFORMATION
We present our financial statements in U.S. dollars and in
accordance with accounting principles generally accepted in
Canada, or Canadian GAAP. For a discussion of certain
significant differences between Canadian GAAP and accounting
principles generally accepted in the United States, or U.S.
GAAP, as they relate to PotashCorp, we refer you to Note 31
to our audited financial statements as of and for the fiscal
year ended December 31, 2009, which are incorporated by
reference into this prospectus from our annual report on
Form 10-K
for the fiscal year ended December 31, 2009.
All references to $ and dollars in this
prospectus are to U.S. dollars and, except where noted, all
financial information is presented in accordance with Canadian
GAAP.
POTASH
CORPORATION OF SASKATCHEWAN INC.
We are the worlds largest integrated fertilizer and
related industrial and feed products company, with significant
market share in each of the three primary nutrient
products potash, phosphate and nitrogen. We are the
largest producer of potash worldwide by capacity.
We are organized under the laws of Canada. Our principal
executive offices are located at 122 1st Avenue
South, Suite 500, Saskatoon, Saskatchewan, Canada S7K 7G3,
telephone:
(306) 933-8500.
USE OF
PROCEEDS
We intend to use the net proceeds from the sale of the debt
securities described in this prospectus as set forth in any
applicable prospectus supplement.
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RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratios of
earnings to fixed charges computed using amounts reported under
Canadian GAAP and U.S. GAAP for the periods indicated below.
Earnings for this purpose have been calculated by adding income
taxes, fixed charges and distributed income of equity investees
to net income, and deducting interest capitalized and income
from equity investees. Fixed charges for this purpose consist of
the total of interest expensed and capitalized, amortization of
capitalized expenses related to indebtedness and an estimate of
the interest within rental expense.
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Three months ended
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March 31,
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Year ended December 31,
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2010
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2009
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2008
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2007
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2006
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2005
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Canadian GAAP:
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9.65x
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4.86x
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24.07x
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8.80x
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4.85x
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6.17x
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U.S. GAAP:
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9.51x
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4.79x
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24.07x
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8.78x
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4.90x
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6.22x
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DESCRIPTION
OF DEBT SECURITIES
As required by U.S. federal securities law, the debt securities
offered pursuant to this prospectus are governed by a document
called an indenture. The indenture is a contract between us, as
issuer, and The Bank of Nova Scotia Trust Company of New
York, as trustee. The indenture is incorporated by reference as
an exhibit to the registration statement of which this
prospectus is a part. The indenture is subject to and governed
by the U.S. Trust Indenture Act of 1939, as amended. You
should read the indenture for a more complete understanding of
the provisions we describe below. Please see Where You Can
Find More Information for information on how to obtain a
copy of the indenture.
In the discussion that follows, we summarize certain provisions
of the indenture. This discussion is not complete, and is
qualified by reference to all the provisions of the indenture,
including definitions of terms used in the indenture. For
example, in this section we use defined terms that have been
given special meaning in the indenture. We describe the meaning
for only the more important terms. We also include references in
parentheses to certain sections of the indenture. Whenever we
refer to particular sections or defined terms of the indenture
in this prospectus or in any prospectus supplement, those
sections or defined terms are incorporated by reference in this
prospectus or in any prospectus supplement.
We describe in this section the general terms that will apply to
any debt securities that may be offered by us pursuant to this
prospectus. At the time that we offer debt securities, we will
describe in the related prospectus supplement the specific terms
of the offered debt securities and the extent to which the
general terms described in this section apply to those debt
securities.
General
Debt securities offered through this prospectus will be limited
to an aggregate initial public offering price of $2,000,000,000
or the equivalent in one or more foreign currencies, currency
units or composite currencies. The indenture provides that debt
securities may be issued thereunder in an unlimited amount. The
debt securities may be issued in one or more series, as
established by us or as established in one or more indentures
supplemental to the indenture. Not all securities of one series
need be issued at the same time and, unless otherwise provided,
any series may be reopened, without the consent of the holders
of the securities of that series, for issuances of additional
securities of that series. (Section 3.01)
The debt securities described in this prospectus will be direct
unsecured obligations of PotashCorp and will rank equally and
ratably without preference among themselves and at least equally
with all of our other unsecured and unsubordinated indebtedness.
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The particular terms of each issue of debt securities, as well
as any modifications or additions to the general terms of the
indenture that may be applicable in the case of that issue of
debt securities, will be described in the related prospectus
supplement. This description will include, where applicable:
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the title, aggregate principal amount and denominations of the
debt securities;
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the price, expressed as a percentage of the principal amount, at
which the debt securities will be issued and, if other than the
principal amount, the portion of the principal amount payable
upon the acceleration of the maturity of the debt securities, or
the method by which any such portion will be determined;
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the date or dates on which the debt securities will mature;
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the rate or rates, which may be fixed or variable, at which the
debt securities will bear interest;
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the date from which interest on the debt securities will accrue,
the dates on which interest will be payable, the date on which
payment of interest will commence, the record dates for interest
payment dates, the persons to whom interest will be paid and the
basis upon which interest will be calculated, if other than that
of a 360-day
year of 12,
30-day
months;
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the place or places where the principal of (and premium, if any)
and interest on debt securities will be payable, where the debt
securities may be surrendered for registration of transfer or
exchange and where notices or demands to or upon us in respect
of the debt securities and the indenture may be served;
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the terms and conditions on which we may, at our option, redeem
the debt securities, in whole or in part, including the period
or periods for redemption and price or prices at which the debt
securities may be redeemed;
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the terms and conditions on which we may be obligated to redeem,
repay or purchase the debt securities pursuant to any sinking
fund or analogous provision or at the option of a security
holder;
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if other than U.S. dollars, the currency or currencies in which
the debt securities are denominated and payable, which may be
another currency or units of two or more other currencies or a
composite currency or currencies, and the terms and conditions
relating to those currencies;
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whether the amount of payments of principal of (and premium, if
any) or interest on the debt securities may be determined with
reference to an index, formula or other method (which index,
formula or method may, but need not, be based on a currency,
currencies, currency unit or units or composite currency or
currencies) and the manner in which those amounts will be
determined;
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any additional restrictive covenants included for the benefit of
holders of the debt securities;
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any additional events of default provided with respect to the
debt securities;
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whether the debt securities are to be issued in whole or in part
in the form of one or more global securities and, if so, the
identity of the depositary;
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whether the debt securities will be issued in certificated or
book-entry form;
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the applicability, if any, of the defeasance and covenant
defeasance provisions described in this prospectus, or any
modification of those provisions;
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whether and under what circumstances we will pay any additional
amounts on the debt securities in respect of any tax, assessment
or governmental charge and, if so, whether we will have the
option to redeem the debt securities in the place of making such
payment; and
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any other terms, conditions, rights and preferences of the debt
securities. (Section 3.01)
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We may issue debt securities as original issue discount
securities to be offered and sold at a substantial discount
below their stated principal amounts. We will describe in the
related prospectus supplement any special U.S. or Canadian
federal income tax, accounting or other considerations that may
apply to any such original issue discount securities.
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The prospectus supplement for each offering of debt securities
may add to or change statements contained in this prospectus.
Except as described in any prospectus supplement, the debt
securities will not contain any provisions that would limit our
ability to incur unsecured indebtedness or that would afford
holders of the debt securities protection in the event of a
highly leveraged transaction or that would prohibit other
transactions that could adversely affect holders of the debt
securities.
Form,
Denomination, Registration or Transfer
Unless otherwise specified in the applicable prospectus
supplement, we will issue debt securities only in registered
form.
We may issue debt securities of a series in whole or in part in
the form of one or more global securities.
(Section 2.03)
Unless otherwise specified in the applicable prospectus
supplement, we will issue debt securities denominated in U.S.
dollars in integral multiples of $1,000. We will specify the
denomination of any series of debt securities denominated in a
foreign or composite currency or currency units in the related
prospectus supplement. If applicable, we will issue one or more
global securities in a denomination or aggregate denominations
equal to the aggregate principal amount of the outstanding debt
securities of the series to be represented by such global
security or securities. (Sections 3.01 and 3.02)
The trustee will act as our agent for registering debt
securities in the names of holders and recording transfers of
debt securities, although we may appoint another entity to
perform this function or perform this function ourselves. The
entity performing this function is called the security
registrar.
You may transfer or exchange debt securities at the office of
the security registrar. You will not be required to pay any
service charge for any registration of transfer or exchange of
debt securities, but you may be required to pay for any tax or
other governmental charge associated with the transfer or
exchange. You may have your debt securities, other than a global
security, exchanged for more debt securities of smaller
permitted denominations or for fewer debt securities of larger
permitted denominations. The transfer or exchange of a debt
security will only be made if the security registrar is
satisfied with your proof of ownership.
(Section 3.05)
Neither we nor the trustee will be required to:
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issue, register the transfer of or exchange debt securities of
any series during a period beginning at the opening of business
15 days before any selection of debt securities of that
series to be redeemed and ending at the close of business on the
day of mailing of the relevant notice of redemption;
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register the transfer of or exchange any debt security, or
portion of a debt security, called for redemption, except the
unredeemed portion of any debt security being redeemed in part;
or
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issue, register the transfer of or exchange any debt security
that has been surrendered for repayment at the option of the
holder, except the portion, if any, of such debt security not to
be repaid. (Section 3.05)
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Global
Debt Securities
We may issue the debt securities of a series in whole or in part
in the form of one or more global securities that will be
deposited with, or on behalf of, a depositary identified in the
related prospectus supplement. Global securities will be
registered in the name of the depositary or its nominee. Unless
a global security is exchanged in whole or in part for debt
securities in definitive form, a global security generally may
be transferred only as a whole and only to the depositary or to
a nominee of the depositary or to a successor depositary or its
nominee. (Sections 3.01 and 3.05)
A general description of global securities arrangements is set
forth below under Legal Ownership of Debt
Securities Global Securities. The specific
terms of the depositary arrangement with respect to any debt
securities of a series issued in global form will be described
in the prospectus supplement related to such series. We expect
that the provisions of the next two paragraphs will apply to all
depositary arrangements.
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Upon the issuance of a global security, the depositary or its
nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual debt
securities represented by the global security to the accounts of
institutions that have accounts with the depositary. These
institutions are called participants. The
participant accounts to be credited will be designated by the
underwriters or agents for such debt securities or by us if the
debt securities are offered and sold directly by us. Ownership
of beneficial interests in a global security will be limited to
participants or persons that may hold interests through
participants. Ownership of beneficial interests in a global
security will be shown on, and the transfer of that interest
will be effected only through, records maintained by the
depositary or its nominee, or by participants or persons that
own beneficial interests through participants.
Upon receipt of any payment in respect of a global security, the
depositary or its nominee will immediately credit
participants accounts with amounts proportionate to their
respective beneficial interests in the principal amount of the
global security as shown in the records of the depositary or its
nominee. Payments by participants to owners of beneficial
interests in a global security held through participants will be
governed by standing instructions and customary practices and
will be the responsibility of those participants.
Payment
and Paying Agents
Unless otherwise indicated in the applicable prospectus
supplement, payment of any installment of interest on debt
securities will be made to the person in whose name the debt
security is registered at the close of business on the security
register at the record date for such interest. The principal of
(and applicable premium, if any, on) any series of debt
securities will be payable at the corporate trust office of the
trustee, which initially will be One Liberty Plaza, New York,
New York 10006; except that, at our option, payment of interest
may be made by check mailed to each holder at the holders
registered address or by wire transfer of funds to each holder
at an account maintained within the United States.
(Sections 3.01, 3.07 and 10.02)
If any interest is not punctually paid or provided for on any
interest payment date, then interest will stop being payable to
the holder on the relevant regular record date and may be paid
to the person in whose name the debt security is registered at
the close of business on a special record date for the payment
of such defaulted interest. A special record date will be fixed
by the trustee, which date shall be not more than 15 days
and not less than ten days prior to the proposed payment date.
Notice of the proposed payment of default interest and the
special record date will be given to the holder of the debt
security not less than ten days prior to such special record
date. In addition, defaulted interest may be paid at any time in
any other lawful manner, as described in the indenture.
(Section 3.07)
We may appoint one or more paying agents to effect payments in
respect of debt securities. We will identify any paying agent
for a series of debt securities in the applicable prospectus
supplement. We may terminate the appointment of any paying agent
at any time, except that, unless otherwise indicated in the
applicable prospectus supplement, we will maintain at least one
paying agent in New York City for payments with respect to debt
securities of any series payable in U.S. dollars.
(Section 10.02)
Any money paid to a paying agent in respect of any debt security
that remain unclaimed at the end of two years (or such shorter
period of time for return of such money to PotashCorp under
applicable abandoned property laws) after the relevant amounts
shall have become due and payable will be repaid to us. Holders
of these debt securities can thereafter look only to us for
payment of these amounts. (Section 10.03)
Merger,
Consolidation or Sale
Under the indenture we may amalgamate or consolidate with, or
sell, lease or convey all or substantially all of our assets to,
or merge with or into, any other entity, provided that:
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either we will be the continuing entity or the successor entity
will be an entity organized and existing under the laws of
Canada or any province or territory of Canada or the United
States or any State thereof or the District of Columbia, and the
successor entity will expressly assume payment of the principal
of (and premium, if any) and interest on all of the securities
and the due and punctual performance and observance of all of
the covenants and conditions contained in the indenture;
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immediately after giving effect to such transaction, no event of
default under the indenture, and no event that, after notice or
the lapse of time, or both, would become an event of default,
will have occurred and be continuing; and
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an officers certificate and legal opinion covering such
conditions will be delivered to the trustee.
(Sections 8.01 and 8.04)
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Certain
Covenants
Additional
Amounts
Payments made by us under or with respect to the debt securities
will be free and clear of, and without withholding or deduction
for or on account of, any present or future tax, duty, levy,
impost, assessment or other governmental charge of any nature
whatsoever imposed or levied by or on behalf of the Government
of Canada or of any province or territory of Canada or by any
authority or agency therein or thereof having power to tax,
which we refer to as Taxes, unless we are required to withhold
or deduct Taxes by law.
If we are required to withhold or deduct any amount for or on
account of Taxes from any payment made with respect to the debt
securities, we will pay such additional amounts as may be
necessary so that the net amount received by each holder
(including additional amounts) after such withholding or
deduction will not be less than the amount the holder would have
received if the Taxes had not been withheld or deducted;
provided that no additional amounts will be payable with respect
to certain Taxes specified in the indenture, which we refer to
as excluded Taxes. Excluded Taxes include Taxes:
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that would not have been imposed but for the fact that the
payment is made to a holder whom we do not deal with at
arms length (within the meaning of the Income Tax Act
(Canada)) at the time we make such payment;
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that would not have been imposed but for the existence of any
present or former connection between the holder and Canada or
any province or any territory of Canada unless the connection is
only holding the debt securities or the receipt of payments on
the debt securities;
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that would not have been imposed but for the presentation by the
holder of such debt security for payment on a date more than
30 days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided
for, whichever occurs later;
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required to be deducted or withheld by any paying agent from a
payment on a debt security, if such payment can be made without
such deduction or withholding by any other paying agent; or
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that would not have been imposed but for the failure of the
holder to comply with any applicable certification,
documentation, information or other reporting requirement
concerning the nationality, residence, identity or connection
with the taxing jurisdiction of the holder or beneficial owner
of such debt security.
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We will also make such withholding or deduction and remit the
full amount deducted or withheld to the relevant authority in
accordance with applicable law.
We will furnish to the holders of the debt securities certified
copies of tax receipts evidencing payment by us within
30 days after the date the payment of any Taxes is due.
At least 30 days prior to each date on which any payment
under or with respect to the debt securities is due and payable,
if we are obligated to pay additional amounts with respect to
such payment, we will deliver to the trustee an officers
certificate stating the fact that such additional amounts will
be payable, the amounts payable and such other information
necessary to enable the trustee to pay such additional amounts
to holders on the payment date. Wherever in this prospectus or a
prospectus supplement we mention the payment of the principal of
(or premium, if any) or interest on or any other amount payable
under, or in respect of, any debt security of any series, we
include the payment of additional amounts to the extent that, in
such context, additional amounts are, were or would be payable.
Our obligation to pay additional amounts if and when due will
survive the termination of the indenture and the payment of all
amounts under or with respect to the debt securities.
(Section 10.06)
8
Limitation
on Liens
We may not, and we may not permit any of our subsidiaries to,
incur any lien on or with respect to any of our or any of our
subsidiaries principal property (as this term is defined
below) owned on or acquired after the date of the indenture to
secure debt without making (or causing such subsidiary to make)
effective provision for securing the debt securities equally and
ratably with such debt as to such principal property for as long
as such debt is so secured. If such debt is subordinate to the
debt securities, we must secure the debt securities as to such
principal property prior to such debt for so long as such debt
is so secured.
The restrictions on liens will not apply to:
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liens in respect of debt existing on the date of the indenture;
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liens on or with respect to property that is not principal
property;
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liens securing only debt securities issued under the indenture;
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liens in favor of us or any of our subsidiaries;
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liens on property existing immediately prior to the time of
acquisition of such property (and not created in anticipation of
the financing of such acquisition);
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liens to secure debt incurred for the purpose of financing all
or any part of the purchase price or the cost of construction or
improvement of property used in our business or the business of
any of our subsidiaries and subject to such liens, provided that
the principal amount of any debt secured by such a lien does not
exceed 100% of such purchase price or cost, such lien does not
extend to or cover any property other than such property and any
such improvements, and such debt is incurred within
12 months of such purchase, construction or improvement;
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liens on property of a person existing at the time such person
is merged with or into or amalgamated or consolidated with us or
any of our subsidiaries that were not created in anticipation of
the acquisition of such person, provided that such lien does not
extend to or cover any property other than that of the person so
merged, amalgamated or consolidated;
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liens on any principal property in favor of a domestic or
foreign governmental body to secure partial progress, advance or
other payments pursuant to any contract or statute of such
governmental body; and
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liens to secure debt incurred to extend, renew, refinance,
replace or refund (or successive extensions, renewals,
refinancings, replacements or refundings), in whole or in part,
any secured debt existing on the date of the indenture or any
debt secured by any lien referred to in the foregoing
exceptions, so long as in each such case the lien does not
extend to any other property and the debt so secured is not
increased other than for reasonable costs related to such
extension, renewal, refinancing, replacement or refunding.
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In addition, we and our subsidiaries may incur a lien or liens
to secure debt (excluding debt secured by liens permitted under
the exceptions listed above) the aggregate amount of which,
including attributable debt in respect of sale and leaseback
transactions, does not exceed 15% of our consolidated net
tangible assets, as such term is defined in the indenture,
determined in accordance with Canadian GAAP. We and our
subsidiaries may also incur a lien or liens to secure any debt
incurred pursuant to a sale and leaseback transaction, without
securing the debt securities equally and ratably with or prior
to such debt, provided that such sale and leaseback transaction
is permitted by the provisions of the indenture described below
under Limitation on Sale and Leaseback
Transactions. (Section 10.07)
For purposes of the limitation on liens covenant and the
limitation on sale and leaseback transactions covenant, which is
described below, the term principal property means
any real property interest that is held by us or any of our
subsidiaries and that has a gross book value exceeding 5% of our
consolidated net tangible assets (other than any interest that
our board of directors determines is not material to our
business), or any of the capital stock or debt securities issued
by any of our significant subsidiaries, as such term is defined
in the indenture.
9
Limitation
on Sale and Leaseback Transactions
We may not, and we may not permit any of our subsidiaries to,
enter into any sale and leaseback transaction with respect to
any principal property (except for a period, including renewals,
not exceeding 36 months) unless:
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at the time of entering into such sale and leaseback
transaction, we (or such subsidiary) would be entitled to incur
debt, in a principal amount equal to the attributable debt (as
this term is defined below) in respect of such sale and
leaseback transaction, secured by a lien, without equally and
ratably securing the debt securities;
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we apply (or such subsidiary applies), within 12 months
after the sale or transfer, an amount equal to the greater of
the net proceeds of the principal property sold pursuant to the
sale and leaseback transaction or the fair value (in the opinion
of an executive officer of ours) of such principal property to
the acquisition of or construction on property used or to be
used in the ordinary course of our business or the business of
our subsidiary, and we shall have elected to designate such
amount as a credit against such sale and leaseback transaction;
or
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subject to the following paragraph, we apply (or such subsidiary
applies), within 12 months after the sale or transfer, an
amount equal to the net proceeds of the principal property sold
pursuant to the sale and leaseback transaction to the voluntary
defeasance or retirement of debt, which amount will not be less
than the fair value (in the opinion of an executive officer of
ours) of such principal property less an amount equal to the
principal amount of such debt voluntarily defeased or retired by
us or such subsidiary within such
12-month
period and not designated as a credit against any other sale and
leaseback transaction. (Section 10.08)
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Notwithstanding the foregoing, in no event will we be required
to defease or retire, in the aggregate with respect to any and
all such sale and leaseback transactions, more than 25% of the
original aggregate principal amount of a series of debt
securities on or prior to the fifth anniversary of the original
issue date thereof. If the aggregate net proceeds that we would
be otherwise required to use to defease or retire securities on
or prior to the fifth anniversary of the issue date would exceed
25% of the original aggregate principal amount of such series
(such excess we refer to as the 25% excess proceeds), then
promptly after such fifth anniversary we will defease or retire
securities in an amount equal to the 25% excess proceeds.
Pending such defeasing or retiring of securities, the 25% excess
proceeds will be invested and maintained by us and for our
benefit in permitted short-term investments, and we will not
distribute such proceeds in respect of our common shares.
(Section 10.08)
For purposes of the limitation on sale and leaseback
transactions covenant, the term attributable debt
means, with respect to any sale and leaseback transaction, the
present value (discounted at the rate of interest implicit in
the terms of the lease) of the obligations of the lessee under
the lease for net rental payments during the remaining term of
the lease (including any period for which such lease has been
extended). For this purpose, net rental payments
under any lease for any period means the sum of the rental and
other payments required to be paid in the period by the lessee,
not including, however, any amounts required to be paid by the
lessee (whether or not designated as rental or additional
rental) on account of maintenance and repairs, insurance, taxes,
assessments or similar charges.
Events of
Default, Notice and Waiver
The indenture provides that the following events are events of
default with respect to any series of debt securities:
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default in the payment of interest on, or any additional amount
payable in respect of, any debt security of that series when due
and payable, and the continuance of that default for
30 days;
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default in the payment of principal of (or premium, if any, on)
any debt security of that series when due;
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default in the deposit of any sinking fund payment, when and as
due by the terms of any debt security of that series;
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default in the performance or breach of any other covenant or
warranty of PotashCorp contained in the indenture (other than a
covenant added to the indenture solely for the benefit of a
series of debt securities other than that series), and the
continuance of that default or breach for 60 days after
written notice by the holders of at least 25% in principal
amount of the outstanding debt securities of that series;
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a default in respect of indebtedness for borrowed money
(including obligations under leases required to be capitalized
on the balance sheet of the lessee under Canadian GAAP, but not
including any indebtedness for which recourse is limited to
property purchased) in an aggregate principal amount in excess
of $100,000,000 that results in the acceleration of the due date
of that indebtedness, without the acceleration having been
rescinded or annulled;
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certain events of bankruptcy, insolvency or reorganization, or
court appointment of a receiver, liquidator or trustee of
PotashCorp or any of our significant subsidiaries; and
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any other event of default provided with respect to that
particular series of debt securities. (Section 5.01)
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An event of default with respect to a particular series of debt
securities will not necessarily constitute an event of default
with respect to any other series of debt securities.
We are required to file with the trustee annual officers
certificates as to the absence of specified defaults under the
indenture. (Section 10.05)
If an event of default with respect to a series of debt
securities occurs and is continuing, the trustee will, at the
request of holders of not less than 25% in principal amount of
the then-outstanding debt securities of the relevant series,
declare the principal of, and premium, if any, on, all debt
securities of the series to be due and payable, together with
accrued interest. The indenture provides that, in certain cases,
the holders of a majority in principal amount of the
then-outstanding debt securities of a series may on behalf of
the holders of all debt securities of that series waive any past
default or event of default and rescind and annul any such
declaration and its consequences. (Section 5.02)
The trustee may require indemnification from the holders of debt
securities of a series before proceeding to exercise any right
or power under the indenture at the request of those holders.
(Sections 6.01 and 6.03) The holders of a majority
in principal amount of the then-outstanding debt securities of
any series may:
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direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or exercising any trust
or power conferred on it with respect to the debt securities of
that series; and
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take any other action authorized to be taken under the indenture
or under applicable law.
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However, the trustee may refuse to follow any direction that
conflicts with law or the indenture or is unduly prejudicial to
the rights of other holders. (Section 5.12)
No holder will be entitled to pursue any remedy with respect to
the indenture unless the trustee fails to act for 60 days
after it is given:
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notice of default by that holder;
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a written request to enforce the indenture by the holders of not
less than 25% in principal amount of all of the then-outstanding
debt securities issued under the indenture (treated as a single
class); and
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an indemnity to the trustee, satisfactory to the trustee;
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and during this
60-day
period the holders of a majority in principal amount of all of
the then-outstanding debt securities issued under the indenture
(treated as a single class) do not give a direction to the
trustee that is inconsistent with the enforcement request.
(Section 5.07) These provisions will not prevent any
holder of debt securities from enforcing payment of the
principal of (and premium, if any) and interest on the debt
securities at the relevant due dates. (Section 5.08)
If an event of default with respect to a series of debt
securities occurs and is continuing, the trustee will mail to
the holders of those debt securities a notice of the event of
default within 90 days after it occurs. However, except in
the case of a default in any payment in respect of a series of
debt securities, the trustee shall be protected in withholding
notice of an event of default if it determines in good faith
that this is in the interests of the holders of the relevant
debt securities. (Section 6.02)
11
Modification
of the Indenture
The indenture provides that, in general, we and the trustee may
modify the indenture or the rights of the holders of any debt
securities so long as we obtain the consent of the holders of
not less than a majority in principal amount of the
then-outstanding debt securities affected by the modification.
The indenture also provides, however, that we may not effect any
modification without the consent of each affected holder if that
modification would, among other things:
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change the stated maturity of the principal of (or premium, if
any) or any installment of interest on any debt security;
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reduce the principal amount of any debt security, or reduce the
amount of principal of an original issue discount security that
would be due and payable upon declaration of acceleration of the
maturity thereof or would be provable in bankruptcy, or
adversely affect any right of repayment of the holder of any
such debt security;
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change the place of payment for any debt security or change the
currency in which a debt security is payable;
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impair the right of any holder to institute suit for the
enforcement of any payment on or with respect to any debt
security;
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reduce the percentage in principal amount of outstanding debt
securities the consent of whose holders is required for approval
of any proposed modification to the indenture or for waivers of
certain covenants or defaults under the indenture, or reduce the
requirements for quorum or voting; or
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modify any of the foregoing provisions or any of the provisions
relating to the waiver of certain past defaults or certain
covenants, except to increase the required percentage to effect
such action or to provide that certain other provisions may not
be modified or waived without the consent of the holder of any
debt security. (Section 9.02)
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We and the trustee are permitted to make modifications and
amendments to the indenture without the consent of any holder of
debt securities for any of the following purposes:
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to evidence the succession of another person to us as obligor
under the indenture;
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to add covenants for any or all series of debt securities or to
surrender any of our rights or powers in the indenture;
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to add events of default for any or all series of debt
securities;
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to add or change any provisions of the indenture to permit or
facilitate the issuance of debt securities in bearer form, or to
permit or facilitate the issuance of debt securities in
uncertificated form;
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to change or eliminate any provisions of the indenture, provided
that any such change or elimination will become effective only
when there are no debt securities outstanding of any series
created prior thereto that are entitled to the benefit of such
provision;
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to add guarantees to the securities and guarantors under the
indenture or to secure the securities;
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to establish the form or terms of debt securities of any series;
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to provide for the acceptance of appointment by a successor
trustee or facilitate the administration of the trusts under the
indenture by more than one trustee;
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to cure any ambiguity, defect or inconsistency in the indenture,
provided that such action will not adversely affect the
interests of holders of debt securities of any series issued
under the indenture in any material respect; or
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to supplement any of the provisions of the indenture to the
extent necessary to permit or facilitate defeasance and
discharge of any series of debt securities, provided that such
action will not adversely affect the interests of the holders of
the debt securities of any series in any material respect.
(Section 9.01)
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The indenture contains provisions for convening meetings of the
holders of debt securities of a series.
(Section 15.01) A meeting may be called at any time
by the trustee, and also, upon request, by us or by the holders
of at least 10% in principal amount of the outstanding debt
securities of such series, in any such case upon notice given as
provided in the indenture. (Section 15.02) Except
for any consent that must be given by the holder of each debt
security affected by certain modifications and amendments of the
indenture, any resolution presented at a meeting at which a
quorum is present may be adopted by the affirmative vote of the
holders of a majority in principal amount of the outstanding
debt securities of that series. (Section 15.04)
Any resolution passed or decision taken at any meeting of
holders of debt securities of any series duly held in accordance
with the indenture will be binding on all holders of debt
securities of that series whether or not present or represented
at the meeting. The quorum at any meeting of the holders of debt
securities of a series called to adopt a resolution, and at any
reconvened meeting, will be persons holding or representing a
majority in principal amount of the outstanding debt securities
of a series. (Section 15.04)
Discharge,
Defeasance and Covenant Defeasance
We are permitted under the indenture to discharge certain
obligations to holders of debt securities that have not already
been delivered to the trustee for cancellation and that either
have become due and payable or will become due and payable
within one year (or scheduled for redemption within one year) by
irrevocably depositing with the trustee, in trust, funds in an
amount sufficient to pay the entire indebtedness on such debt
securities in respect of principal (and premium, if any) and
interest to the date of such deposit (if such debt securities
have become due and payable) or to the stated maturity and
redemption date, as the case may be. (Section 4.01)
The indenture provides that we may elect either:
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to defease and be discharged from all of our obligations with
respect to the debt securities of a series (this is known as
defeasance) (Section 14.02), or
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to be released from our obligations with respect to the debt
securities of a series under the restrictions described under
Certain Covenants or, if provided
pursuant to the indenture, our obligations under any other
covenant, and any omission to comply with such obligations will
not constitute an event of default with respect to those debt
securities (this is known as covenant defeasance)
(Section 14.03),
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in either case upon the irrevocable deposit by us with the
trustee, in trust, of an amount, in the currency in which those
debt securities are payable at stated maturity, or government
obligations, or both, applicable to those debt securities that
through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and
interest on those debt securities, and any mandatory sinking
fund or analogous payments thereon, on the scheduled due dates.
(Section 14.04)
Such a trust will only be permitted to be established if, among
other things, we have delivered to the trustee an opinion of
counsel to the effect that the holders of such debt securities
will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such defeasance or covenant
defeasance and will be subject to U.S. federal income tax on the
same amounts, in the same manner and at the same times as would
have been the case if the defeasance or covenant defeasance had
not occurred, and such opinion of counsel, in the case of
defeasance, will be required to refer to and be based upon a
ruling of the Internal Revenue Service or a change in applicable
U.S. federal income tax law occurring after the date of the
indenture. (Section 14.04)
Governing
Law
The indenture and the debt securities will be governed by the
laws of the State of New York. (Section 1.12)
Concerning
the Trustee
The Bank of Nova Scotia Trust Company of New York is the
trustee under the indenture. An affiliate of the trustee is a
lender to us under our $2,500.0 million revolving credit
facility maturing December 11, 2012 and our
$750.0 million revolving credit facility maturing
May 31, 2013, and also maintains other normal banking
relationships, including the maintenance of depositary accounts,
with us and certain of our subsidiaries.
13
LEGAL
OWNERSHIP OF DEBT SECURITIES
Street
Name and Other Indirect Holders
We generally will not recognize investors who hold debt
securities in accounts at banks or brokers as legal holders of
those debt securities. This is called holding in street
name. Instead, we recognize only the bank or broker or the
financial institution the bank or broker uses to hold the debt
securities. These intermediary banks, brokers and other
financial institutions pass along principal, interest and other
payments on the debt securities, either because they agree to do
so in their customer agreements or because they are legally
required to do so. If you hold debt securities in street name,
you should check with your own institution to find out:
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how it handles payments and notices with respect to securities;
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whether it imposes fees or charges;
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how it would handle voting if ever required;
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how and when you should notify it to exercise on your behalf any
rights or options that may exist under the debt securities;
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whether and how you can instruct it to send you securities
registered in your own name so you can be a direct holder as
described below; and
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how it would pursue rights under the debt securities if there
were a default or other event triggering the need for holders to
act to protect their interests.
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Registered
Holders
Our obligations, as well as the obligations of the trustee and
any third parties employed by us or the trustee, run only to
persons who are registered as holders of debt securities. As
noted above, we do not have obligations to you if you hold in
street name or through other indirect means, either because you
choose to hold debt securities in that manner or because the
debt securities are issued in the form of global securities as
described below. For example, once we make payment to the
registered holder, we have no further responsibility for the
payment even if that holder is legally required to pass the
payment along to you as a street name customer but does not do
so.
Global
Securities
A global security is a special type of indirectly held security.
If we choose to issue debt securities in the form of global
securities, the ultimate beneficial owners of the debt
securities will be indirect holders. We do this by requiring
that the global security be registered in the name of a
financial institution we select and by requiring that the debt
securities represented by the global security not be registered
in the name of any other holder except in the special situations
described below. The financial institution that acts as the sole
registered holder of the global security is called the
depositary. Any person wishing to own a debt security may do so
indirectly through an account with a broker, bank or other
financial institution that in turn has an account with the
depositary. The prospectus supplement will indicate whether your
series of debt securities will be issued only as global
securities.
Transfers of debt securities represented by the global security
will be made only on the records of the depositary or its
nominee by transferring such debt securities from the account of
one broker, bank or financial institution to the account of
another broker, bank or financial institution. These transfers
are made electronically only and are also known as book-entry
transfers. Securities in global form are sometimes also referred
to as being in book-entry form.
As an indirect holder, your rights relating to a global security
will be governed by the account rules of your financial
institution and of the depositary, as well as general laws
relating to securities transfers. We will not recognize you as a
holder of debt securities and instead will deal only with the
depositary that holds the global security.
14
You should be aware that if debt securities are issued only in
the form of a global security:
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you cannot have debt securities registered in your own name;
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you cannot receive physical certificates for your interest in
the debt securities;
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you will be a street name holder and must look to your own bank
or broker for payments on the debt securities and protection of
your legal rights relating to the debt securities;
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you may not be able to sell interests in the debt securities to
some insurance companies and other institutions that are
required by law to own securities in the form of physical
certificates;
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the depositarys policies will govern payments, transfers,
exchanges and other matters relating to your indirect interest
in the global security; we and the trustee will have no
responsibility for any aspect of the depositarys actions
or for its records of ownership interests in the global
security; and we and the trustee also will not supervise the
depositary in any way; and
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the depositary will require that indirect interests in the
global security be purchased or sold within its system using
same-day
funds for settlement.
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In a few special situations described below, the global security
will terminate and the indirect interests in it will be
exchanged for registered debt securities represented by physical
certificates. After that exchange, the choice of whether to hold
debt securities in registered form or in street name will be up
to you. You must consult your bank or broker to find out how to
have your interests in debt securities transferred to your name,
so that you will be a registered holder.
Unless we specify otherwise in the prospectus supplement, the
special situations for termination of a global security are:
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when the depositary notifies us that it is unwilling or no
longer qualified to continue as depositary and we do not or
cannot appoint a successor depositary within 90 days; or
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when we notify the trustee that we wish to terminate the global
security.
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The prospectus supplement may also list additional situations
for terminating a global security that would apply only to the
particular series of debt securities covered by the prospectus
supplement. When a global security terminates, the depositary
(and not us or the trustee) is responsible for deciding the
names of the institutions that will be the initial registered
holders.
The Term
Holder as Used in this Prospectus and
Elsewhere
In the descriptions of the debt securities included in this
prospectus and any prospectus supplement, when we refer to the
holder of a given debt security as being entitled to
certain rights or payments, or being permitted to take certain
actions, we are in all cases referring to the registered holder
of the debt security.
While you would be the registered holder if you held a
certificated security registered in your name, it is likely that
the holder will actually be either the broker, bank or other
financial institution where you have your street name account,
or, in the case of a global security, the depositary. If you are
an indirect holder, you will need to coordinate with the
institution through which you hold your interest in a debt
security in order to determine how the provisions involving
holders described in this prospectus and any prospectus
supplement will actually apply to you. For example, if the debt
security in which you hold a beneficial interest in street name
can be repaid at the option of the holder, you cannot exercise
the option yourself by following the procedures described in the
prospectus supplement. Instead, you would need to cause the
institution through which you hold your interest to take those
actions on your behalf. Your institution may have procedures and
deadlines different from or additional to those described in the
prospectus supplement relating to the debt security.
15
INCOME
TAX CONSIDERATIONS
The applicable prospectus supplement will describe the principal
U.S. federal income tax consequences and the principal Canadian
federal income tax consequences to holders who are residents of
the United States of the acquisition, ownership and disposition
of the applicable series of debt securities under the U.S.
Internal Revenue Code of 1986, as amended, and the Income Tax
Act (Canada).
PLAN OF
DISTRIBUTION
General
We may sell the offered securities through agents, through
underwriters or dealers, directly to one or more purchasers or
through a combination of any of these methods of sale.
The accompanying prospectus supplement will identify or describe:
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any underwriters, agents or dealers;
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their compensation;
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the net proceeds to us;
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the purchase price of the debt securities;
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the initial public offering price of the debt securities; and
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any exchange on which the debt securities are to be listed.
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Underwriters, agents and dealers that participate in the
distribution of the securities may be underwriters
as defined in the U.S. Securities Act of 1933, or the Securities
Act, and any discounts or commissions they receive from us and
any profit on their resale of the debt securities may be treated
as underwriting discounts and commissions under the Securities
Act.
The securities described in this prospectus will not be offered
or sold to a resident of Canada in contravention of the
securities laws of Canada or any province or territory thereof.
Underwriters
and Agents
If we use underwriters for a sale of debt securities, the debt
securities will be acquired by the underwriters for their own
account. The underwriters may resell the debt securities in one
or more transactions, including negotiated transactions at a
fixed public offering price or at varying prices determined at
the time of sale. Unless otherwise indicated in the related
prospectus supplement, the obligations of the underwriters to
purchase the debt securities will be subject to certain
conditions, and the underwriters will be obligated to purchase
all the debt securities of the series offered if any of the
securities of that series are purchased. Any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
We may designate agents to solicit purchases for the period of
their appointment to sell securities on a continuing basis.
Unless otherwise indicated in the related prospectus supplement,
any such agent will be acting on a reasonable best efforts basis
for the period of its appointment.
Any such underwriters or agents may from time to time purchase
and sell the debt securities described in this prospectus and
the relevant prospectus supplement in the secondary market, but
are not obligated to do so. No assurance can be given that there
will be a secondary market for the securities or liquidity in
the secondary market if one develops. From time to time, those
underwriters or agents may make a market in the debt securities
but are not obligated to do so.
Dealers
We may sell the offered securities to dealers as principals. We
may negotiate and pay dealers commissions, discounts or
concessions for their services. The dealer may then resell such
securities to the public either at varying prices to be
determined by the dealer or at a fixed offering price agreed to
with us at the time of resale. Dealers engaged by us may allow
other dealers to participate in resales.
16
Direct
Sales
We may choose to sell the offered securities directly. In this
case, no underwriters or agents would be involved.
Indemnification;
Other Relationships
We may have agreements with any underwriters, agents or dealers
to indemnify them against certain civil liabilities, including
liabilities under the Securities Act, or to contribute to
payments they may be required to make in respect thereof.
Underwriters, agents or dealers may engage in transactions with
us or our subsidiaries, perform services for us or our
subsidiaries or be customers of ours or our subsidiaries in the
ordinary course of business.
LEGAL
MATTERS
In connection with particular offerings of the debt securities
in the future, and if stated in the applicable prospectus
supplements, certain matters involving the laws of the United
States will be passed upon for us by Jones Day, our United
States counsel, and certain matters involving the laws of Canada
will be passed upon for us by Stikeman Elliott LLP, our Canadian
counsel.
EXPERTS
The financial statements, and the related financial statement
schedule, incorporated in this prospectus by reference from the
companys Annual Report on
Form 10-K,
and the effectiveness of the companys internal control
over financial reporting have been audited by
Deloitte & Touche LLP, independent registered
chartered accountants, as stated in their reports, which are
incorporated herein by reference. Such financial statements and
financial statement schedule have been so incorporated in
reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
ENFORCEABILITY
OF CIVIL LIABILITIES UNDER U.S. FEDERAL SECURITIES
LAWS
We are a corporation organized under the laws of Canada. Certain
of our directors and executive officers are residents of Canada.
Substantial portions of our assets and of our subsidiaries and
such individuals are located outside of the United States. As a
result, it may be difficult or impossible to effect service of
process within the United States upon such persons in connection
with matters arising under the United States federal securities
laws or to enforce against them in United States courts
judgments of United States courts predicated upon the civil
liability provisions of the United States federal securities
laws. There is some doubt as to the enforceability in Canada in
original actions, or in actions for enforcement of judgments of
United States courts, of civil liabilities predicated upon the
United States federal securities laws. In addition, awards for
punitive damages in actions brought in the United States or
elsewhere may be unenforceable in Canada.
17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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ITEM 14. |
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OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
The following is a statement of the estimated fees and expenses (other than any
underwriting discounts and commissions) to be incurred by PotashCorp in connection with one or more
distributions of an aggregate amount of $2,000,000,000 of debt securities registered under this
registration statement.
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Registration fee under the Securities Act of 1933 |
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$ |
142,600 |
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Printing expenses |
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$ |
150,000 |
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Accounting and legal fees and expenses |
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$ |
450,000 |
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Rating agency fees |
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$ |
300,000 |
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Trustees fees and expenses |
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$ |
30,000 |
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Miscellaneous |
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$ |
27,400 |
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Total |
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$ |
1,100,000 |
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ITEM 15. |
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INDEMNIFICATION OF DIRECTORS AND OFFICERS. |
The Canada Business Corporations Act provides generally that a corporation may indemnify
a director or officer against all costs, charges and expenses, including an amount paid to settle
an action or satisfy a judgment, reasonably incurred by the director or officer in respect of any
civil, criminal, administrative, investigative or other action or proceeding to which he or she is
made a party by reason of being a director or officer, where the director or officer: (a) acted
honestly and in good faith with a view to the best interests of the corporation and (b) in the case
of a criminal or administrative action or proceeding enforced by monetary penalty, the director or
officer had reasonable grounds for believing that the conduct was lawful. Where an officer or
director has met the conditions set out under (a) and (b) above and was not judged by the court or
other competent authority to have committed any fault or omitted to do anything that the individual
ought to have done in such a proceeding, such officer or director is entitled to indemnification
from the corporation for such costs, charges and expenses which were reasonably incurred.
Section 11(4) of our bylaws provides that we shall indemnify directors and officers to the
extent permitted by law.
We have entered into agreements with our directors and officers to indemnify them, to the
extent permitted by law and subject to certain limitations, against all costs reasonably incurred
by any such director or officer in an action or proceeding to which the director or officer was
made a party by reason of the director or officer being an officer and/or director of us or, if at
our request, an organization of which we are a shareholder or creditor.
We maintain insurance policies relating to certain liabilities that our directors and officers
may incur in such capacity.
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Exhibit |
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Number |
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Description of Document |
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**1.1 |
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Form of underwriting agreement. |
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4.1 |
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Indenture, dated as of February 27, 2003, between Potash Corporation of
Saskatchewan Inc. and The Bank of Nova Scotia Trust Company of New York
(incorporated by reference to Exhibit 4(c) of the companys Annual
Report on Form 10-K for the year ended December 31, 2002). |
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**4.2 |
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Form of note. |
II-1
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Exhibit |
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Number |
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Description of Document |
*5.1
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Opinion of Jones Day regarding the validity of the securities. |
*5.2
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Opinion of Stikeman Elliott LLP regarding the validity of the securities. |
*12.1
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Computation of ratio of earnings to fixed charges. |
*23.1
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Consent of Deloitte & Touche LLP. |
*23.2
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Consent of Jones Day (included in Exhibit 5.1). |
*23.3
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Consent of Stikeman Elliott LLP (included in Exhibit 5.2). |
*24.1
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Power of Attorney (included in signature pages hereto). |
*25.1
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Statement of Eligibility of Trustee on Form T-1. |
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* |
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Filed herewith. |
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** |
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To be filed by amendment or as an exhibit with a subsequent Current Report on Form 8-K in
connection with a specific offering. |
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the Calculation of Registration Fee table
in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in
the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
II-2
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was deemed part of and
included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part
of a registration statement in reliance on Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section
10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the registration statement or made
in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided by or on behalf
of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant
to the purchaser.
(b) That, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all the requirements of filing on
Form S-3 and has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Saskatoon, Province of Saskatchewan, Canada,
on June 28, 2010.
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POTASH CORPORATION OF SASKATCHEWAN INC.
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By: |
/s/ William J. Doyle |
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William J. Doyle |
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President and Chief Executive Officer |
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints William J. Doyle, Wayne R.
Brownlee and Joseph A. Podwika, his or her true and lawful attorney-in-fact and agent, each acting
alone, with full power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform
each and every act and thing appropriate or necessary to be done in connection therewith, as fully
to all intents and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, acting alone, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, as amended, this Registration Statement
has been signed by the following persons in the capacities indicated, on the dates indicated below.
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Signature |
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Title |
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Date |
/s/ Wayne R. Brownlee
Wayne R. Brownlee |
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Executive Vice President, Treasurer and
Chief Financial Officer
(Principal financial and accounting
officer)
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June 28, 2010 |
/s/ William J. Doyle
William J. Doyle |
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President and Chief Executive Officer
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June 28, 2010 |
/s/ Christopher M. Burley
Christopher M. Burley |
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Director
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June 28, 2010 |
/s/ John W. Estey
John W. Estey |
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Director
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June 28, 2010 |
/s/ C. Steven Hoffman
C. Steven Hoffman |
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Director
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June 28, 2010 |
II-4
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Signature |
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Title |
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Date |
/s/ Alice D. Laberge
Alice D. Laberge |
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Director
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June 28, 2010 |
/s/ Keith G. Martell
Keith G. Martell |
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Director
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June 28, 2010 |
/s/ Jeffrey J. McCaig
Jeffrey J. McCaig |
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Director
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June 28, 2010 |
/s/ Mary Mogford
Mary Mogford |
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Director
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June 28, 2010 |
/s/ Paul J. Schoenhals
Paul J. Schoenhals |
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Director
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June 28, 2010 |
/s/ E. Robert Stromberg, Q.C.
E. Robert Stromberg, Q.C. |
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Director
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June 28, 2010 |
II-5
EXHIBIT INDEX
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Exhibit |
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Number |
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Description of Document |
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**1.1 |
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Form of underwriting agreement. |
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4.1 |
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Indenture, dated as of February 27, 2003, between the Registrant and The
Bank of Nova Scotia Trust Company of New York (incorporated by reference
to Exhibit 4(c) of the Registrants annual report on Form 10-K for the
year ended December 31, 2002). |
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**4.2 |
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Form of note. |
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*5.1 |
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Opinion of Jones Day regarding the validity of the securities. |
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*5.2 |
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Opinion of Stikeman Elliott LLP regarding the validity of the securities. |
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*12.1 |
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Computation of ratio of earnings to fixed charges. |
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*23.1 |
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Consent of Deloitte & Touche LLP. |
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*23.2 |
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Consent of Jones Day (included in Exhibit 5.1). |
|
*23.3 |
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Consent of Stikeman Elliott LLP (included in Exhibit 5.2). |
|
*24.1 |
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Power of Attorney (included in signature pages hereto). |
|
*25.1 |
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Statement of Eligibility of Trustee on Form T-1. |
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* |
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Filed herewith. |
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** |
|
To be filed by amendment or as an exhibit with a subsequent Current Report on Form 8-K in
connection with a specific offering. |