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HOYA CAPITAL
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STIPULATED AGREEMENT No. ST-16-8288-S |
WHEREAS, on October 22, 2015, Hoya Capital Real Estate, LLC (“HCRE”), a Connecticut limited liability company with a principal place of business located at 133 Rowayton Avenue, Unit C, Norwalk, Connecticut 06853, filed with the Banking Commissioner (“Commissioner”) an application for registration as an investment adviser pursuant to Sections 36b-7 and 36b-32 of Chapter 672a of the General Statutes of Connecticut, the Connecticut Uniform Securities Act (“Act”);
WHEREAS, the Commissioner is charged with the administration of the Act and Sections 36b-31-2 to 36b-31-33, inclusive, of the Regulations of Connecticut State Agencies (“Regulations”) promulgated under the Act;
WHEREAS, the Commissioner, through the Securities and Business Investments Division (“Division”) of the Department of Banking has conducted a review of HCRE’s application pursuant to section 36b-8 of the Act;
WHEREAS, Alexander Rankin Pettee (CRD No. 6573355) (“Pettee”) is the President, Chief Compliance Officer, sole officer and control person of HCRE;
WHEREAS, neither HCRE nor Pettee has been registered as a broker-dealer, agent, investment adviser or investment adviser agent under the securities laws of any state or with the Securities and Exchange Commission;
WHEREAS, neither HCRE nor Pettee has been the subject of any reported securities related disciplinary actions or complaints;
WHEREAS, Pettee passed the Series 65 examination on November 4, 2015;
WHEREAS, Section 36b-31-7b of the Regulations provides, in pertinent part, that:
WHEREAS, Section 36b-31-7b of the Regulations provides, in pertinent part, that:
| (a) | Each applicant for investment adviser registration shall (1) have been engaged in the securities business as a broker-dealer, agent, investment adviser or investment adviser agent spending a major portion of his or her working time in the securities business for at least three years within the seven calendar years preceding the date of the application or (2) be otherwise qualified by knowledge and experience as determined by the commissioner . . . . | ||
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| (d) | Persons acting as managers shall meet the experience requirements of subsection (a) of this section. For purposes of this subsection, ‘manager’ means (1) any person who supervises investment adviser agents either directly or indirectly or (2) any person responsible for the day-to-day operation and supervision of an investment adviser office in this state. |
WHEREAS, the Division has reason to believe that HCRE has not fulfilled the experience requirements set forth in Section 36b-31-7b of the Regulations;
WHEREAS, the Division also has reason to believe that, based on such experience deficiency, a basis exists under Section 36b-15(a)(2)(J) of the Act for restricting or imposing conditions on the investment advisory activities that HCRE may perform in and from Connecticut;
WHEREAS, Section 36b-15(a) of the Act provides, in pertinent part, that:
| The commissioner may, by order, deny . . . any registration or, by order, restrict or impose conditions on the securities or investment advisory activities that an applicant . . . may perform in this state if the commissioner finds that (1) the order is in the public interest, and (2) the applicant . . . or, in the case of . . . [an] investment adviser, any partner, officer, or director, any person occupying a similar status or performing similar functions, or any person directly or indirectly controlling the . . . investment adviser . . . (J) is not qualified on the basis of such factors as training, experience, and knowledge of the securities business, except as otherwise provided in subsection (b) of this section; |
WHEREAS, HCRE represents, through its execution of this Stipulated Agreement Conditioning Registration as an Investment Adviser (“Stipulated Agreement”), that it has read and has familiarized itself with the Act and the Regulations thereunder, particularly those provisions governing the compliance responsibilities of investment advisers;
WHEREAS, HCRE, through its execution of this Stipulated Agreement, voluntarily waives any rights it may have to seek judicial review or otherwise challenge or contest the terms and conditions of this Stipulated Agreement;
AND WHEREAS, the issuance of this Stipulated Agreement is necessary or appropriate in the public interest or for the protection of investors and consistent with the purposes fairly intended by the policy and provisions of the Act.
NOW THEREFORE, THE PARTIES HERETO DO AGREE AS FOLLOWS:
| 1. |
For a period of two (2) years following the Commissioner’s execution of this Stipulated Agreement, HCRE shall refrain from having custody or control of client funds or securities; |
| 2. | For a period of two (2) years following the Commissioner’s execution of this Stipulated Agreement, if HCRE executes a discretionary trade in a client’s account, such client must be notified, in writing (electronically or otherwise) within 24 hours of the transaction; |
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For a period of two (2) years following the Commissioner’s execution of this Stipulated Agreement, HCRE shall limit its investment advice to the following: securities listed on the New York Stock Exchange, the NYSE MKT, the NASDAQ Global Select Market or the NASDAQ Global Market; securities issued by investment companies regulated under the Investment Company Act of 1940; commercial paper; certificates of deposit; corporate debt securities; municipal securities; securities issued or guaranteed by the United States; and insurance products subject to regulation by the Connecticut Insurance Commissioner. Nothing in this paragraph shall preclude HCRE from referring clients to registered investment advisers whose activities are not so limited, and from receiving a referral fee in conjunction therewith provided that full written disclosure of the fee arrangement is made to clients; |
| 4. | For two (2) years following the Commissioner’s execution of this Stipulated Agreement, HCRE shall notify the Division Director promptly, through appropriate amendments to the Central Registration Depository and Investment Adviser Registration Depository filings of HCRE and Pettee, concerning any securities-related complaints, actions, arbitrations or proceedings (and any updates thereto), including the dispositions thereof; |
| 5. |
Execution of this Stipulated Agreement by the Commissioner is without prejudice to the right of the Commissioner to take enforcement action against HCRE based upon a violation of this Stipulated Agreement or the basis for its entry if the Commissioner determines that compliance is not being observed with the terms hereof, or if any representation made by or on behalf of HCRE in connection with its application for registration is subsequently discovered to be untrue; |
| 6. | Nothing in this Stipulated Agreement shall be construed as limiting the Commissioner’s ability to take enforcement action against HCRE, its officers, agents or employees based upon evidence of which the Division was unaware on the date hereof relating to a violation of the Act or any regulation, rule or order under the Act; |
| 7. | The name “Hoya Capital Real Estate, LLC” be and is hereby entered on the Register of Investment Advisers pursuant to Section 36b-8 of the Act; and |
| 8. | This Stipulated Agreement shall become binding when executed by all parties hereto. |
IN WITNESS WHEREOF, the undersigned have executed this Stipulated Agreement on the dates indicated.
| Dated at Hartford, Connecticut, | _____/s/____________ | |
| this 22nd day of March 2016. | Jorge L. Perez | |
| Banking Commissioner |
I, Alexander Rankin Pettee, state on behalf of Hoya Capital Real Estate, LLC, that I have read the foregoing Stipulated Agreement Conditioning Registration as an Investment Adviser; that I know and fully understand its contents; that I am authorized to execute this Stipulated Agreement Conditioning Registration as an Investment Adviser on behalf of Hoya Capital Real Estate, LLC; and that Hoya Capital Real Estate, LLC agrees freely and without threat or coercion of any kind to comply with the terms and conditions stated herein.
| Hoya Capital Real Estate, LLC | |
| By: | ________/s/_______________ |
| Alexander Rankin Pettee | |
| President |
State of: Connecticut
County of: Fairfield
On this the 16th day of March 2016, before me, the undersigned officer, personally appeared Alexander Rankin Pettee, who acknowledged himself to be the President of Hoya Capital Real Estate, LLC, and that he, as such President, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the limited liability company by himself as President.
In witness whereof I hereunto set my hand.
_____/s/__________________________
Notary Public
Date Commission Expires: 10/31/2019