In the Matter of Armtec Infrastructure Inc., 2010 CanLII 79512

Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – exemption granted to a successor issuer from the requirement to file a notice declaring its intention to be qualified to file a short form prospectus at least 10 business days prior to the filing of a preliminary short form prospectus – disclosure regarding the predecessor issuer will effectively be the disclosure of the successor issuer – predecessor issuer is qualified to file a short form prospectus. Applicable Legislative Provisions National Instrument 44-101 Short Form Prospectus Distributions

December 21, 2010

IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction)

AND

IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF ARMTEC INFRASTRUCTURE INC. (the Applicant)

DECISION

Background

The regulator in the Jurisdiction (the Decision Maker) has received an application from the Applicant for a decision under the securities legislation of the Jurisdiction (the Legislation) pursuant to section 8.1 of National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101) exempting the Applicant from the requirement under section 2.8 of NI 44-101 for the Applicant to file a notice (the Notice of Intention) declaring its intention to be qualified to file a short form prospectus at least 10 business days prior to the filing of its first preliminary short form prospectus (the Preliminary Prospectus) after the notice (the Exemption Sought).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions:

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

(b) the Applicant has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in all provinces of Canada other than the Province of Ontario.

Interpretation

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

Representations

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

The Applicant

1. The Applicant was incorporated under the laws of Ontario on May 5, 2010 for the purpose of becoming the successor issuer to Armtec Infrastructure Income Fund (the Fund) as a result of the Conversion (as defined below).

2. The head office of the Applicant is located at 370 Speedvale Avenue West, Suite 3, Guelph, Ontario N1H 7M7.

3. The authorized share capital of the Applicant consists of an unlimited number of common shares (Common Shares).

4. The Applicant has not conducted any business or operations, other than to execute the arrangement agreement relating to the Conversion and entering into a shareholder rights plan and phantom share plan in connection with the Conversion.

5. The Applicant is not a reporting issuer in any jurisdiction of Canada and is not in default under securities legislation in such jurisdictions.

The Fund

6. The Fund is an unincorporated, open-ended limited purpose trust established under the laws of the Province of Ontario by a declaration of trust dated June 15, 2004, as amended and restated on July 27, 2004.

7. The Fund is a reporting issuer in each of the provinces of Canada and is not in default under securities legislation in such jurisdictions.

8. The Fund is qualified to file a short form prospectus pursuant to section 2.2 of NI 44-101.

The Proposed Conversion

9. The Fund is proposing to undertake a conversion of the Fund into the Applicant by way of a statutory plan of arrangement (the Conversion). Under the Conversion, the holders of units of the Fund (the Unitholders) will, if certain conditions are satisfied or waived, exchange their respective units for Common Shares.

10. The Conversion has been approved by the Unitholders at the Annual and Special Meeting of the Fund held on June 24, 2010 (the Meeting) and a management information circular dated May 18, 2010 (the Information Circular) was prepared and mailed to Unitholders in connection with the Conversion and the Meeting and filed by the Fund on May 27, 2010.

11. The Information Circular complied with applicable securities legislation and included disclosure in accordance with Item 14.2 of Form 51-102F5 for the Applicant.

12. The Conversion has been approved by a final order dated June 29, 2010 of the Ontario Superior Court of Justice pursuant to subsection 182(5) of the Business Corporations Act (Ontario).

13. The completion of the Conversion is subject to certain conditions. If implemented, it is expected that the Conversion will be effective on or about January 1, 2011.

14. Upon completion of the Conversion,

(a) 20,347,784 Common Shares will be issued and outstanding and the Common Shares will be listed on the Toronto Stock Exchange;

(b) the sole business of the Applicant will be the current business of the Fund (the Conversion does not contemplate the acquisition of any additional operating assets or the disposition of any existing operating assets);

(c) the Applicant will be a reporting issuer in each of the provinces of Canada; and

(d) the Applicant will be a “successor issuer” to the Fund as defined in NI 44-101.

The Filer's Anticipated Prospectus Filing

15. The Applicant expects that it may file the Preliminary Prospectus in accordance with NI 44-101 on or before January 17, 2011 relating to the offering of securities of the Applicant.

Exemption Sought

16. Following the Conversion, the Applicant will be qualified to file a short form prospectus on the basis that it will satisfy the requirements of subsections 2.2(a), (b), (c) and (e) of NI 44-101 and, as successor issuer, can make use of the exemption provided under subsection 2.7(2) of NI 44-101 with respect to subsection 2.2(d) of NI 44-101.

17. Notwithstanding section 2.2 of NI 44-101, subsection 2.8(1) of NI 44-101 provides that an issuer is not qualified to file a short form prospectus unless it has filed a notice declaring its intention to be qualified to file a short form prospectus at least 10 business days prior to the issuer filing its first preliminary short form prospectus.

18. The Filer intends to file the Notice of Intention on or about January 4, 2011 following the completion of the Conversion on or about January 1, 2011. The Filer will not satisfy the requirement of subsection 2.8(1) of NI 44-101 until 10 business days after it files the Notice of Intention, being January 18, 2011 (assuming the filing of the Notice of Intention on January 4, 2011), and will not be qualified to file the Preliminary Prospectus before that date, unless the Exemption Sought is granted.

Decision

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

The decision of the Decision Maker under the Legislation is that the Exemption Sought is granted, provided that, at the time the Filer files the Preliminary Prospectus, the Filer meets the requirements of:

(a) paragraphs 2.2(a), (b), (c) and (e) of NI 44-101, and

(b) the exemption for successor issuers set forth in subsection 2.7(2) of NI 44-101.

This decision will terminate on the earlier of (i) January 18, 2011, the date which is 10 business days following the proposed filing of the Notice of Intention, and (ii) the date the Preliminary Prospectus is filed.

“Jo-Anne Matear”

Jo-Anne Matear

Assistant Manager, Corporate Finance