Securities Exchange Act of 1934
Rule 14d-11(e)
Rule 14e-5

Exemptive Letter: Offer by BHP Billiton Ltd., BHP Billiton Plc, and BHP Billiton Development 2 (Canada) Ltd. for all common shares of Potash Corporation of Saskatchewan Inc.

Response of the Office of Mergers and Acquisitions
Division of Corporation Finance and the
Office of Trading Practices and Processing
Division of Trading and Markets

August 26, 2010

Via Facsimile (212) 225-3999 and U.S. Mail

Victor I. Lewkow
Cleary Gottlieb Stein & Hamilton LLP
1 Liberty Plaza
New York, New York 10006

Dear Mr. Lewkow:

We are responding to your letter dated August 26, 2010 to Michele Anderson, Christina Chalk and Josephine Tao, as supplemented by telephone conversations with the staff, with regard to your request for exemptive relief. To avoid having to recite or summarize the facts set forth in your letter, we attach the enclosed photocopy of your correspondence. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your letter of August 26, 2010.

On the basis of your representations and the facts presented in your letter, the Commission hereby grants exemptions from the following provisions of the Exchange Act and rules thereunder:

• Rule 14d-11(e). This exemption permits the Offeror to accept and pay for securities tendered during a subsequent offering period within ten calendar days of the date the securities are deposited, using multiple “take-up dates” to the extent necessary, and depending on the length of the subsequent offering period. In granting this relief, we note that applicable Canadian securities laws require take up (acceptance) and payment of securities tendered during a subsequent offering within ten calendar days of the date the securities are deposited. Applicable Canadian securities laws also require that the Offeror must wait at least ten calendar days from the date of a notice of a subsequent offering period or any extension thereof before accepting and paying for securities tendered during that period. Therefore, it is not possible to accept and pay for securities tendered in a subsequent offering period on a rolling basis, as would otherwise be required under Rule 14d-11(e). We note in granting this relief that holders who tender their shares during the subsequent offering period may withdraw them at any time during that period until they are accepted by the Offeror, as required by Canadian law.
   
  
  • Rule 14e-5. On the basis of your representations and the facts presented, particularly that all conditions of Rule 14e-5(b)(12) will be satisfied except Rule 14e-5(b)(12)(i)(B), and without necessarily concurring with your analysis, the Division of Trading and Markets (“Trading and Markets”) hereby grants you an exemption from Rule 14e-5 to permit the Prospective Purchasers to purchase or arrange to purchase Shares outside the Offer as described in your letter, subject to the following conditions:
     
    
    1. No purchases or arrangements to purchase otherwise than pursuant to the Offer are made in the United States;
        
    2. The Offer Document will disclose prominently the possibility of, or the intention to make, purchases or arrangements to purchase the Shares outside the Offer, and if there will be public disclosure of purchases of Shares, the manner in which information regarding such purchases will be disseminated;
        
    3. There will be public disclosure in the United States, to the extent that such information is made public in Canada, of information regarding all purchases of Shares otherwise than pursuant to the Offer until the Offer expires;
        
    4. The Prospective Purchasers will comply with all applicable rules in Canada;
        
    5. In the event that the Prospective Purchasers purchase or make arrangements to purchase Shares for a consideration greater than the Offer price, the Offer price will be increased to match the higher price paid outside the Offer;
        
    6. Upon request of Trading and Markets, the Prospective Purchasers will disclose to it a daily time-sequenced schedule of all purchases of Shares made by any of them from the time of public announcement of the Offer until the Expiry Time, on a transaction-by-transaction basis, including: (a) a description of the size, broker (if any), time of execution and purchase price; and (b) if not executed on the TSX, the exchange, quotation system or other facility through which the purchase occurred;
        
    7. Upon request of Trading and Markets, the Prospective Purchasers will transmit the information specified in clauses (a) and (b) of item (6) above to Trading and Markets at its offices in Washington D.C. within 30 days of its request;
        
    8. The Prospective Purchasers will retain all documents and other information required to be maintained pursuant to this exemption for a period of not less than two years from the date of the termination of the Offer;
        
    9. Representatives of the Prospective Purchasers will be made available (in person at the offices of Trading and Markets or by telephone) to respond to inquiries of Trading and Markets relating to such records; and,
        
    10. Except as otherwise exempted herein, the Prospective Purchasers will comply with Rule 14e-5.

The foregoing exemptive relief is based solely on the representations and the facts presented in your letter dated August 26, 2010 and does not represent a legal conclusion with respect to the applicability of the statutory or regulatory provisions of the federal securities laws. The relief is strictly limited to the application to this transaction of the statutory provisions and rules listed above. You should discontinue this transaction pending further consultations with the staff if any of the facts or representations set forth in your letter change. In addition, this position is subject to modification or revocation if at any time the Commission or the Divisions of Corporation Finance or Trading and Markets determine that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act.
Your attention is directed to the anti-fraud and anti-manipulation provisions of the Exchange Act, particularly Sections 10(b) and 14(e), and Rule 10b-5 thereunder. Responsibility for compliance with these and any other applicable provisions of the federal securities laws must rest with the Offeror. The Divisions express no view with respect to any other questions that the offer may raise, including, but not limited to, the adequacy of disclosure concerning, and the applicability of other federal or state laws.

Sincerely,

For the Commission,
By the Division of Corporation Finance
pursuant to delegated authority,

Michele M. Anderson
Chief
Office of Mergers and Acquisitions
Division of Corporation Finance

Josephine J. Tao
Assistant Director
Office of Trading Practices and Processing
Division of Trading and Markets

Enclosure

Incoming Letter:

The Incoming Letter is in Acrobat format.

http://www.sec.gov/divisions/corpfin/cf-noaction/2010/bhpbilliton082610-14d.htm