Securities Law & Instruments

Headnote

Application by former wholly owned subsidiary of public limited partnership for an order designating applicant to be a reporting issuer -- application filed in conjunction with related application by public limited partnership for an order that the limited partnership is not a reporting issuer -- applicant is resulting public entity that emerged from a securities exchange transaction whereby unitholders of the limited partnership exchanged their units for non-voting common shares of the applicant -- exchange transaction approved at special meeting of unitholders -- following the exchange, all of the issued and outstanding non-voting common shares of the applicant are held by the former unitholders of the partnership -- requested order harmonizes regulatory treatment of applicant across Canada.

Applicable Legislative Provisions

Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(11).

IN THE MATTER OF

THE SECURITIES ACT,

R.S.O. 1990, CHAPTER S.5, AS AMENDED

(the Act)

AND

IN THE MATTER OF

SWEF TERRAWINDS RESOURCES CORP.

 

ORDER

(Clause 1(11)(b))

UPON the application of SWEF TERRAWINDS RESOURCES CORP. (the Applicant) for an order pursuant to clause 1(11)(b) of the Act that, for the purposes of Ontario securities law, the Applicant is a reporting issuer in Ontario;

AND UPON considering the application and the recommendation of the staff of the Ontario Securities Commission (the Commission);

AND UPON the Applicant representing to the Commission as follows:

The Parties

SWEF LP

1. SWEF LP (the Partnership) is a limited partnership formed under the laws of the Province of Ontario on December 30, 2004. On September 21, 2005 the Partnership filed the requisite documentation in accordance with the Limited Partnerships Act (Ontario) in order to change its name from "SkyPower I Limited Partnership" to "SkyPower Wind Energy Fund LP" and on December 28, 2007 the Partnership filed the requisite documentation in accordance with the Limited Partnerships Act (Ontario) in order to change its name from "SkyPower Wind Energy Fund LP" to its current name.

2. SWEF GP Inc. is a corporation existing under the laws of Ontario and is the general partner of the Partnership.

3. The Partnership's head office is located at 86 Scollard Avenue, Toronto, ON M5R 1G2.

4. The Partnership became a reporting issuer or reporting issuer equivalent on December 19, 2005 in each of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Northwest Territories, Yukon and Nunavut (the Jurisdictions) by the issuance of receipts by the Jurisdictions for a final prospectus dated December 16, 2005.

5. The Partnership has given notice to the British Columbia Securities Commission of its voluntary surrender of reporting issuer status in British Columbia and has made application to each of the Jurisdictions other than British Columbia to cease to be a reporting issuer.

The Applicant

6. The Applicant is corporation incorporated under the federal laws of Canada on December 8, 2003 and prior to December 19, 2008 was a wholly owned subsidiary of SWEF LP.

7. The authorized capital of the Applicant consists of an unlimited number of non-voting common shares and an unlimited number of class A voting preferred shares, of which 7,724,084 non-voting common shares and 71,900,901 class A voting preferred shares are issued and outstanding.

The Facts

8. At a duly called meeting of the holders (the Unitholders) of limited partnership units (Units) of the Partnership on December 28, 2007 (the Meeting), the Unitholders approved, by special resolution, the sale of substantially all of the assets of the Applicant to SkyPower Corp. for approximately $77.2 million in cash and the assumption of certain liabilities of the Applicant of approximately $211 million (the Asset Sale).

9. At the Meeting, the Unitholders also approved, by special resolution, certain amendments to the limited partnership agreement of the Partnership to permit the Exchange (as described below).

10. Neither the Applicant nor the Partnership has carried on active business since the Asset Sale and neither has any intention to carry on active business in the future. Both the Applicant and the Partnership will ultimately be dissolved or wound-down once the remainder of the cash portion of the purchase price from the Asset Sale is distributed to the Unitholders in the manner disclosed in the Partnership's Management Information Circular dated November 29, 2007.

11. On December 19, 2008 all of the Units were purchased for cancellation by the Partnership in exchange for an equal number of non-voting common shares of the Applicant (the Exchange) as part of the process to begin the wind-down of the Partnership.

12. Following the Exchange, all of the issued and outstanding non-voting common shares of the Applicant are held by the former Unitholders of the Partnership. The Partnership continues to be the beneficial and registered holder of all of the issued and outstanding class A voting preferred shares in the capital of the Applicant. The only securityholders of the Partnership are its general partner, SWEF GP Inc. and 2171264 Ontario Inc., a wholly-owned subsidiary of SWEF GP Inc.

13. As a result of the varying definitions of "reporting issuer" contained in Canadian securities legislation, upon the completion of the Exchange, the Applicant automatically became a reporting issuer in each of the other Jurisdictions but did not become a reporting issuer in the province of Ontario.

AND UPON the Commission being satisfied that to do so is in the public interest;

IT IS ORDERED pursuant to clause 1(11)(b) of the Act that the Applicant is a reporting issuer for the purposes of Ontario securities law.

Dated this 14th day of April, 2009.

"Mary Condon"
Commissioner
 
"Carol S. Perry"
Commissioner