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STIPULATION AND
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WHEREAS, the Banking Commissioner (the “Commissioner”) is responsible for administering Chapter 672a of the Connecticut General Statutes, the Connecticut Uniform Securities Act (the “Act”) and Sections 36b-31-2 et seq. of the Regulations of Connecticut State Agencies (the “Regulations”) promulgated under the Act;
WHEREAS, Opportunity Income Plus, LP (the “Fund”), a Delaware pooled investment fund formed on July 15, 2004 and having its principal office at Park 80 West, 250 Pehle Avenue, Suite 708, Saddle Brook, New Jersey 07663, is an issuer of securities, specifically pooled investment fund interests (the “Interests”);
WHEREAS, on December 18, 2013, the Fund filed with the Securities and Exchange Commission a Notice of Exempt Offering of Securities on Form D (the “Notice”). The Notice reflected the Fund’s reliance on subsection (c) of Rule 506 under the Securities Act of 1933 in not pursuing federal registration of the Interests;
WHEREAS, on January 6, 2014, the Fund correspondingly filed with the Commissioner a Form D notice reflecting the Fund’s reliance on subsection (c) of Rule 506. The notice included the fee required by Section 36b-21(e) of the Act;
WHEREAS, the Form D notice and the Fund’s related representations to the Commissioner indicated that: 1) nationwide, the first sale of Fund Interests had occurred on April 1, 2005, with approximately 35 persons investing to date; 2) with respect to Connecticut investors, the minimum investment was $250,000; 3) no sales had been made to nonaccredited investors; 4) the first Connecticut sale occurred on or about January 1, 2007; and 5) approximately five Connecticut investors had purchased Fund Interests to date;
WHEREAS, effective July 1, 1997 and following passage of the National Securities Markets Improvement Act of 1996, P.A. 97-220 amended Section 36b-21 of the Act to add a new subsection (e), requiring that persons offering or selling a security that is a covered security under Section 18(b)(4)(D) of the Securities Act of 1933 [i.e. Rule 506 transactions] to “file a notice with the commissioner within fifteen days after the first sale of such a security in this state” and pay an associated fee of $150 (emphasis supplied);
WHEREAS, the Fund desires to settle the matters involving its filing delinquency described herein and voluntarily enters into this Stipulation and Agreement;
WHEREAS, Section 4-177(c) of Chapter 54 of the Connecticut General Statutes permits the resolution of a contested case by stipulation or agreed settlement;
WHEREAS, the Commissioner and the Fund acknowledge that this Stipulation and Agreement is in lieu of any court action or administrative proceeding against the Fund, its partners, officers, employees, agents or representatives adjudicating any issue of fact or law on the specific matters described herein;
WHEREAS, the Fund, through its execution of this Stipulation and Agreement, voluntarily waives any rights it may have to seek judicial review or otherwise challenge or contest the terms and conditions of this Stipulation and Agreement;
NOW THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS:
| 1. |
No later than the date this Stipulation and Agreement is executed by the Commissioner, Opportunity Income Plus, LP shall remit to the department via check payable to “Treasurer, State of Connecticut” the sum of one thousand three hundred dollars ($1,300) as an administrative fine; |
| 2. |
Opportunity Income Plus, LP shall refrain from offering or selling securities in or from Connecticut absent compliance with Section 36b-16 of the Act, including timely compliance with any applicable filing requirements; |
| 3. | Execution of this Stipulation and Agreement by the Commissioner is without prejudice to the right of the Commissioner to take enforcement action against Opportunity Income Plus, LP based upon a violation of this Stipulation and 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 Opportunity Income Plus, LP and reflected herein is subsequently determined to be untrue; |
| 4. | Nothing in this Stipulation and Agreement shall be construed as limiting the Commissioner's ability to take enforcement action against Opportunity Income Plus, LP based upon evidence of which the Division was unaware on the date hereof relating to a violation of the Act or any regulation or order under the Act; and |
| 5. | This Stipulation and Agreement shall become binding when executed by Opportunity Income Plus, LP and the Commissioner. |
IN WITNESS WHEREOF, the undersigned have executed this Stipulation and Agreement on the dates indicated.
| Dated at Hartford, Connecticut | _______/s/_________ | |
| this 18th day of March 2014. | Howard F. Pitkin | |
| Banking Commissioner |
I, Phillip Goldstein, state on behalf of Opportunity Income Plus, LP, that I have read the foregoing Stipulation and Agreement; that I know and fully understand its contents; that I am authorized to execute this Stipulation and Agreement on behalf of Opportunity Income Plus, LP and that Opportunity Income Plus, LP agrees freely and without threat or coercion of any kind to comply with the terms and conditions stated herein.
| Opportunity Income Plus, LP | ||
| By | ______/s/__________________ | |
| Phillip Goldstein | ||
| Manager of Its General Partner |
On this 7th day of March 2014, personally appeared Phillip Goldstein, signer of the foregoing Stipulation and Agreement, who, being duly sworn, did acknowledge to me that he was authorized to execute the same on behalf of Opportunity Income Plus, LP and acknowledged the same to be his free act and deed, before me.
_____/s/______________________
Notary Public
My Commission Expires: 3/9/2017