K+S CANADA HOLDINGS INC. K+S AKTIENGESELLSCHAFT POTASH ONE INC.

Transcription

1 This document is important and requires your immediate attention. If you are in doubt as to how to deal with it, you should consult your investment dealer, stockbroker, bank manager, lawyer or other professional advisor. The Offer has not been approved or disapproved by any securities regulatory authority nor has any securities regulatory authority passed upon the fairness or merits of the Offer or upon the adequacy of the information contained in this document and it is an offence to claim otherwise. This document does not constitute an offer or a solicitation to, nor will deposits be accepted from or on behalf of, any person in any jursidiction in which such offer or solicitation is unlawful. January 20, 2011 NOTICE OF VARIATION AND EXTENSION by K+S CANADA HOLDINGS INC. a subsidiary of K+S AKTIENGESELLSCHAFT to its OFFER TO PURCHASE FOR CASH all of the outstanding common shares of POTASH ONE INC. on the basis of Cdn.$4.50 for each common share THE OFFER HAS BEEN EXTENDED AND IS NOW OPEN FOR ACCEPTANCE UNTIL 6:00 P.M. (PACIFIC STANDARD TIME) ON FRIDAY, FEBRUARY 4, 2011, UNLESS THE OFFER IS FURTHER EXTENDED. K+S Canada Holdings Inc. ( K+S Canada, the Offeror, we, or us ) hereby gives notice that it is amending and supplementing its offer to purchase and accompanying circular dated December 13, 2010 (the Offer to Purchase and Circular ) in order to extend the expiry of its offer to purchase all of the outstanding common shares (the Potash One Shares ) of Potash One Inc. ( Potash One ) for Cdn.$4.50 in cash per Potash One Share (the Offer or Offer to Purchase ) to 6:00 p.m. (Pacific standard time) on Friday, February 4, This Notice of Variation and Extension should be read in conjunction with the Offer to Purchase and Circular. Except as otherwise set forth herein, the terms and conditions previously set forth in the Offer to Purchase and Circular, the related Letter of Transmittal and Notice of Guaranteed Delivery remain unchanged. (continued on next page)

2 (continued from cover) Potash One Shareholders who have validly deposited and not withdrawn their Potash One Shares need take no further action to accept the Offer. Registered Potash One Shareholders who wish to accept the Offer must properly complete and execute the Letter of Transmittal (printed on YELLOW paper) that accompanied the Offer to Purchase and Circular or a manually signed facsimile thereof and deposit it, at or prior to the Expiry Time, together with certificate(s) representing their Potash One Shares, in accordance with the instructions in the Letter of Transmittal or request their broker, dealer, bank, trust company or other nominee to effect the transaction on their behalf. Alternatively, registered Potash One Shareholders may: (a) accept the Offer by following the procedures for book-entry transfer of Potash One Shares described in Section 3 of the Offer to Purchase in the Offer to Purchase and Circular, Manner of Acceptance Acceptance by Book-Entry Transfer ; or (b) accept the Offer where the certificates representing their Potash One Shares are not immediately available, or if the certificates and all of the required documents cannot be provided to the Depositary before the Expiry Time, by following the procedure for guaranteed delivery set forth under Section 3 of the Offer to Purchase in the Offer to Purchase and Circular, Manner of Acceptance Procedure for Guaranteed Delivery, using the Notice of Guaranteed Delivery (printed on GREEN paper) that accompanied the Offer to Purchase and Circular or a manually executed facsimile thereof. Potash One Shareholders whose Potash One Shares are registered in the name of a nominee should consult their broker, investment dealer, bank, trust company or other nominee for assistance in depositing their Potash One Shares. Potash One Shareholders will not be required to pay any fee or commission if they accept the Offer by depositing their Potash One Shares directly with Kingsdale Shareholder Services Inc. (the Information Agent or the Depositary ). Questions and requests for assistance may be directed to the Information Agent and additional copies of this document, the Offer to Purchase and Circular, the Letter of Transmittal and the Notice of Guaranteed Delivery may also be obtained without charge on request from the Information Agent at its office shown below and on the last page of this document. Copies of these documents and related materials may also be found at The Depositary and Information Agent for the Offer is: By Mail By Registered, by Hand or by Courier 130 King Street West, Suite 2950, 130 King Street West, Suite 2950, P.O. Box 361 North American Toll Free Phone: contactus@kingsdaleshareholder.com Facsimile: Toll Free Facsimile: Outside North America, Banks and Brokers Call Collect: ii -

3 NOTICE TO POTASH ONE SHAREHOLDERS IN THE UNITED STATES This Offer is made by K+S Canada, an indirect wholly-owned Canadian subsidiary of K+S Aktiengesellschaft ( K+S ), for the issued and outstanding Potash One Shares and this Notice of Variation and Extension has been prepared by K+S Canada in accordance with the disclosure requirements of applicable Canadian Law. Potash One Shareholders in the United States should be aware that these disclosure requirements may be different from those of the United States or other jurisdictions. Financial statements of Potash One (see Section 2 of the Circular in the Offer to Purchase and Circular, Potash One ) have been prepared in accordance with Canadian generally accepted accounting principles and are subject to Canadian auditing and auditor independence standards and, therefore, they may not be comparable to financial statements of United States companies. The enforcement by Potash One Shareholders of civil liabilities under the United States federal securities laws may be adversely affected by the fact that K+S Canada is a corporation organized under the Laws of the Province of British Columbia, Canada, that a majority of its directors and officers are residents of Germany, that certain of the experts named in the Offer to Purchase and Circular are residents of Canada, and that all of K+S Canada s assets are located outside of the United States. Potash One Shareholders in the United States may not be able to sue K+S Canada or its directors or officers in a non-u.s. court for violations of United States securities laws. It may be difficult to compel such parties to subject themselves to the jurisdiction of a court in the United States or to enforce any judgment obtained from a court of the United States. Potash One Shareholders should be aware that acceptance of the Offer and disposition of the Potash One Shares as described herein may have tax consequences both in the United States and in Canada. United States income tax consequences to Potash One Shareholders are not described herein and Potash One Shareholders are urged to consult their tax and legal advisors as to the application of U.S. federal income tax Laws to their particular circumstances, as well as to any state, local or non-u.s. income or other tax consequences of a disposition of Potash One Shares pursuant to the Offer. Potash One Shareholders resident in Canada are urged to review Section 17 of the Circular in the Offer to Purchase and Circular entitled Canadian Federal Income Tax Considerations for certain details concerning the Canadian federal income tax consequences applicable to acceptance of the Offer and a disposition of the Potash One Shares as described therein. Potash One Shareholders should be aware that K+S Canada, directly or indirectly, may in certain circumstances bid for or purchase Potash One Shares, or related securities, during the period of time the Offer is open, to the extent permitted under the Support Agreement and applicable Canadian Securities Law and regulations. In the case of Potash One Shareholders resident in the United States, it is a violation of Section 14(e) of the U.S. Securities Exchange Act of 1934, as amended and Rule 14e-4 promulgated thereunder, for a person, directly or indirectly, to deposit Potash One Shares for a person s own account unless, at the time of deposit and at the end of the Expiry Time, such person (i) has a net long position equal to or greater than the amount of (x) the Potash One Shares deposited or (y) other securities immediately convertible into, exercisable, or exchangeable for the amount of the Potash One Shares deposited and upon acceptance of such person s deposit, will acquire such Potash One Shares for deposit by conversion, exercise or exchange of such other securities and (ii) will deliver or cause such Potash One Shares to be delivered in accordance with the terms of the Offer. Section 14(e) and Rule 14e-4 provide a similar restriction applicable to the deposit or guarantee of deposit on behalf of another person. In the case of Potash One Shareholders resident in the United States, the deposit of Potash One Shares to K+S pursuant to any procedures described herein will constitute a representation by such Potash One Shareholder that (i) such Potash One Shareholder has a net long position in the Potash One Shares being deposited within the meaning of Rule 14e-4 and (ii) the deposit of such Potash One Shares complies with Rule 14e-4. All dollar amounts set forth herein are expressed in Canadian dollars, except where otherwise indicated. This transaction has not been approved or disapproved by the United States Securities and Exchange Commission (the SEC ) or any state securities commission, nor has the SEC or any state securities commission passed on the accuracy or adequacy of the Offer. Any representation to the contrary is a criminal offence. - iii -

4 DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS AND INFORMATION This Notice of Variation and Extension and the Offer to Purchase and Circular contain certain forwardlooking information within the meaning of applicable Securities Laws relating to K+S Canada, K+S, Potash One and their respective operations. All statements, other than statements of historical fact, are forward-looking statements or information. When used in the Notice of Variation and Extension or the Offer to Purchase and Circular, the words anticipate, will, believe, estimate, expect, intend, target, plan, goals, objectives, pro forma, forecast, schedule, may and other similar words and expressions, identify forward-looking statements or information. These forward-looking statements or information relate to, among other things: the advancement of the Legacy Project towards production; the satisfaction or waiver of the conditions to the Offer and the conditions precedent to the Support Agreement; the scheduled Expiry Time; and K+S Canada s plans and expectations for its properties and operations. These statements reflect the current views of K+S Canada with respect to future events and are necessarily based upon a number of assumptions and estimates that, while considered reasonable by K+S Canada, are inherently subject to significant business, economic, political and social uncertainties and contingencies. Many factors, both known and unknown, could cause actual results, performance or achievements to be materially different from the results, performance or achievements that are or may be expressed or implied by such forward looking statements contained in the Notice of Variation and Extension and the Offer to Purchase and Circular and K+S Canada has made assumptions based on or related to many of these factors. Such factors include, without limitation: fluctuations in currency markets (particularly with respect to the Euro, the U.S. dollar and Canadian dollar); risks related to the technological and operational nature of K+S Canada s, K+S and Potash One s respective businesses; changes in national and local government legislation, permitting, taxation, controls or regulations and political or economic developments in Canada, the United States, Germany or other countries where K+S Canada, K+S and Potash One may carry on business in the future; risks and hazards associated with the business of mineral exploration, development and solution mining (including environmental hazards, unusual or unexpected geological or structural formations, pressures, cave-ins, subsidence and flooding); risks relating to the creditworthiness and financial condition of suppliers and other parties which K+S Canada deals with; inadequate insurance or inability to obtain insurance to cover these risks and hazards; employee relations; relationships with and claims by local communities and First Nations; availability and increasing costs associated with solution mining inputs and labour; the speculative nature of mineral exploration and development, including the risks of obtaining necessary licenses and permits; diminishing quantities or grades of mineral reserves as properties are mined; global financial conditions; business opportunities that may be presented to, or pursued by K+S Canada; K+S ability to complete and successfully integrate acquisitions; challenges to, or difficulties in maintaining, K+S Canada s, K+S or Potash One s title to properties and continued ownership thereof; litigation; the actual results of current exploration activities, conclusions of economic evaluations, and changes in project parameters to deal with unanticipated economic or other factors; discrepancies between actual and estimated production, price volatility, increased competition in the potash and mining industries for properties, equipment, qualified personnel, and their costs and those factors that have been identified under the caption Description Of Business Risk Factors in Potash One s Annual Information Form filed with certain Canadian provincial securities regulatory authorities. Although K+S Canada has attempted to identify important factors that could cause actual results to differ materially, there may be other factors that cause results not to be as anticipated, estimated, described or intended. K+S Canada does not intend and does not assume any obligation, to update these forward-looking statements or information to reflect changes in assumptions or changes in circumstances where any other events affecting such statements or information, other than as required by applicable Laws. Investors are cautioned against attributing undue reliance on forward-looking information. - iv -

5 NOTICE OF VARIATION AND EXTENSION This Notice of Variation and Extension amends and supplements the Offer to Purchase and Circular, the Letter of Transmittal and the Notice of Guaranteed Delivery which were previously delivered to Potash One Shareholders. These documents contain important information which should be read carefully before making a decision with respect to the Offer. Unless the subject matter or the context is inconsistent therewith, terms used in this Notice of Variation and Extension and not defined herein that are defined in the Offer to Purchase and Circular have the respective meanings ascribed thereto in the Offer to Purchase and Circular. January 20, 2011 TO: THE HOLDERS OF POTASH ONE SHARES This Notice of Variation and Extension amends the Offer to Purchase and Circular dated December 13, Except as otherwise set forth in this Notice of Variation and Extension, the terms and conditions previously set forth in the Offer to Purchase and Circular, the Letter of Transmittal and the Notice of Guaranteed Delivery continue to be applicable in all respects. All references to the Offer, Offer to Purchase and Offer to Purchase and Circular in the Offer to Purchase and Circular, the Letter of Transmittal, the Notice of Guaranteed Delivery and this Notice of Variation and Extension mean the Offer, Offer to Purchase and Offer to Purchase and Circular, as amended and supplemented hereby. 1. Extension of the Offers By notice to the Depositary given on January 18, 2011, K+S Canada extended the expiry of the Offer to 6:00 pm (Pacific standard time) on Friday, February 4, 2011, unless the Offer is further extended. Accordingly, all references to January 18, 2011 or to 6:00 pm (Pacific Standard time) on January 18, 2011 in the Offer to Purchase and Circular, the Letter of Transmittal and the Notice of Guaranteed Delivery are amended to refer to February 4, 2011 or to 6:00 pm (Pacific standard time) on February 4, 2011, respectively. 2. Conditions Satisfied or Waived Each of the conditions of the Offer specified in Section 4 of the Offer to Purchase in the Offer to Purchase and Circular, Conditions of the Offer, has been satisfied, except for the condition specified in paragraph (k) of Section 4 ( the Offeror shall have obtained an order pursuant to Part VI of the SFSA authorizing the holding of its interests in farm land (as defined in the SFSA), including the Surface Rights ) which has been waived by the Offeror. If within 120 days after the date of the Offer, the Offer has been accepted by holders of at least 90% of the issued and outstanding Potash One Shares, other than Potash One Shares held by, or by a nominee for, the Offeror and its affiliates as of the date of the Offer, and the Offeror takes up and pays for such Potash One Shares, the Offeror intends to acquire the remainder of the Potash One Shares via a Compulsory Acquisition. If the Offeror is not entitled to effect a Compulsory Acquisition, the Offeror intends to take such actions as may be necessary for the Offeror to acquire the remaining Potash One Shares not acquired under the Offer as soon as practicable after completion of the Offer by way of a Subsequent Acquisition Transaction. If the Subsequent Acquisition Transaction is effected, it will provide that the consideration offered per Potash One Share in connection with such Subsequent Acquisition Transaction is at least equal to and in the same form as the amount paid per Potash One Share under the Offer. The timing and details of any such transaction will necessarily depend on a variety of factors, including the number of Potash One Shares acquired under the Offer

6 See Section 16 of the Circular in the Offer to Purchase and Circular, Acquisition of Potash One Shares Not Deposited. 3. Recent Developments Since the date of the Offer to Purchase and Circular, there has been an important development relating to the Offer which is summarized below. K+S Canada Takes Up Potash One Shares All of the Potash One Shares validly deposited to the Offer and not withdrawn at 6:00 p.m. (Pacific Standard time) on January 18, 2011 were taken up and accepted for payment by K+S Canada. The Depositary advised K+S Canada that as of 6:00 p.m. (Pacific Standard time) on January 18, 2011 approximately 78,802,378 Potash One Shares (representing approximately 81% of the Potash One Shares issued and outstanding as of January 18, 2011) had been validly deposited under the Offer and were taken up by K+S Canada. K+S Canada has extended the Offer to Friday, February 4, 2011 in order to enable the remaining Potash One Shareholders to deposit their Potash One Shares to the Offer and receive prompt payment for their Potash One Shares. 4. Time for Acceptance The Offer is now open for acceptance until 6:00 p.m. (Pacific Standard time) on Friday, February 4, 2011, unless further extended. See Section 5 of the Offer to Purchase in the Offer to Purchase and Circular, Extension, Variation or Change in the Offer. The Offeror expressly reserves the right, in its sole discretion, at any time and from time to time during the Offer Period to extend the Expiry Date or the Expiry Time by giving written notice (or other communication subsequently confirmed in writing provided that such confirmation is not a condition of the effectiveness of the notice) of such extension to the Depositary at its principal office in, and by causing the Depositary to provide as soon as practicable thereafter a copy of such notice in the manner set forth in Section 9 of the Offer to Purchase in the Offer to Purchase and Circular, Notices and Delivery, to all registered holders of Potash One Shares that have not been taken up prior to the extension or variation. The Offeror shall, as soon as possible after giving notice of an extension to the Depositary, make a public announcement of the extension or variation and provide a copy of the notice thereof to the TSX. Any notice of extension or variation will be deemed to have been given and to be effective on the day on which it is delivered or otherwise communicated to the Depositary at its principal office in. 5. Manner of Acceptance Potash One Shares may be deposited under the Offer in accordance with the provisions of Section 3 of the Offer to Purchase in the Offer to Purchase and Circular, Manner of Acceptance. 6. Take Up and Payment for Deposited Potash One Shares Upon the terms and subject to the conditions of the Offer, K+S Canada will take up and pay for Potash One Shares validly deposited to the Offer and not withdrawn as set out in Section 6 of the Offer to Purchase in the Offer to Purchase and Circular, Payment for Deposited Potash One Shares. Potash One Shareholders are referred to Section 6 of the Offer to Purchase in the Offer to Purchase and Circular, Payment for Deposited Potash One Shares, for a description of the legal requirements regarding the timing of the take up of the Deposited Potash One Shares deposited under the Offer and a description of when payment will be made for the Deposited Potash One Shares in relation to the time at which they are taken up by the Offeror

7 7. Withdrawal of Deposited Potash One Shares Potash One Shareholders have a right to withdraw Potash One Shares deposited under the Offer in the circumstances and in the manner set out in Section 8 of the Offer to Purchase in the Offer to Purchase and Circular, Withdrawal of Deposited Potash One Shares. 8. Consequential Amendments to the Offer to Purchase and Circular and Other Documents The Offer to Purchase and Circular, the Letter of Transmittal and the Notice of Guaranteed Delivery are amended to the extent necessary to reflect the information contained in this Notice of Variation and Extension. 9. Statutory Rights Securities legislation in certain of the provinces and territories of Canada provides Potash One Shareholders with, in addition to any other rights they may have at law, one or more rights of rescission, price revision or to damages if there is a misrepresentation in a circular or a notice that is required to be delivered to Potash One Shareholders. However, such rights must be exercised within prescribed time limits. Potash One Shareholders should refer to the applicable provisions of the securities legislation of their province or territory for particulars of those rights or consult a lawyer. 10. Directors Approval The contents of this Notice of Variation and Extension have been approved, and the sending thereof to the Potash One Shareholders has been authorized, by the Board of Directors of K+S Canada

8 APPROVAL AND CERTIFICATE The foregoing, together with the Offer to Purchase and Circular dated December 13, 2010, contains no untrue statement of a material fact and does not omit to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made. DATED: January 20, 2011 K+S CANADA HOLDING INC. (signed) MICHAEL GÖTZ President ON BEHALF OF THE BOARD OF DIRECTORS OF K+S CANADA HOLDINGS INC. (signed) HANS ULI BÖDICKER Director (signed) JÜRGEN KESPER Director (signed) ALEXA HERGENRÖTHER Director K+S AKTIENGESELLSCHAFT (signed) NORBERT STEINER Chairman of the Board of Executive Directors (signed) JAN PETER NONNENKAMP Chief Financial Officer ON BEHALF OF THE BOARD OF K+S AKTIENGESELLSCHAFT (signed) JOACHIM FELKER Executive Director (signed) GERD GRIMMIG Executive Director - 4 -

9 The Information Agent and Depositary for the Offer is: By Mail 130 King Street West, Suite 2950, P.O. Box 361 By Registered, by Hand or by Courier 130 King Street West, Suite 2950, North American Toll Free Phone: Any questions and requests for assistance may be directed by holders of Potash One Shares to the Information Agent at its telephone numbers and address set out above.

10 The Depositary and Information Agent for the Offer is: By Mail 130 King Street West, Suite 2950, P.O. Box 361 By Registered, by Hand or by Courier 130 King Street West, Suite 2950, North American Toll Free Phone: Facsimile: Toll Free Facsimile: Outside North America, Banks and Brokers Call Collect: