DOB: Shimoda Capital Stipulation

* * * * * * * * * * * * * * * * * * * * *

IN THE MATTER OF:

SHIMODA CAPITAL ADVISORS LIMITED

(CRD No. 112347)
(SEC No. 801-60378)

* * * * * * * * * * * * * * * * * * * * *


*
*
*
*
*
*
*
*

STIPULATION
AND AGREEMENT

ST-06-7328-S

 

WHEREAS, the Banking Commissioner (the "Commissioner") is charged with the administration of 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, Shimoda Capital Advisors Limited ("Shimoda") is an investment adviser that has been registered with the Securities and Exchange Commission (the “SEC”) under the federal Investment Advisers Act of 1940 since July 6, 2001;

WHEREAS, Shimoda’s Investment Adviser Registration Depository filing lists its business address as c/o Caledonian House, Jennet Street, George Town, Cayman Islands;

WHEREAS, Shimoda maintained or has maintained a place of business at 15 River Road, Suite 230, Wilton, Connecticut;

WHEREAS, Section 36b-6(c) of the Act provides that: "No person shall transact business as an investment adviser, within or from this state, unless registered as such by the commissioner as provided in sections 36b-2 to 36b-33, inclusive, or exempted pursuant to subsection (e) of this section";

WHEREAS, Section 36b-6(e) of the Act provides, in part, that:  “The following investment advisers are exempted from the registration requirements under subsection (c) of this section:  Any investment adviser that (1) is registered or required to be registered under Section 203 of the Investment Advisers Act of 1940 . . . Any investment adviser claiming an exemption pursuant to subdivision (1) ... of this subsection that is not otherwise excluded under subsection (10) of section 36b-3, shall first file with the commissioner a notice of exemption together with a consent to service of process as required by subsection (g) of section 36b-33.  The notice of exemption shall contain such information as the commissioner may require and shall be accompanied by a nonrefundable fee of two hundred fifty dollars.  Such notice of exemption shall be valid until December thirty-first of the calendar year in which it was first filed and may be renewed annually thereafter upon submission of such information as the commissioner may require together with a nonrefundable fee of one hundred fifty dollars.  If any investment adviser that is exempted from registration pursuant to subdivision (1) ... of this subsection fails or refuses to pay any fee required by this subsection, the commissioner may require such investment adviser to register pursuant to subsection (c) of this section.  For purposes of this subsection, a delay in the payment of a fee or an underpayment of a fee which is promptly remedied shall not constitute a failure or refusal to pay such fee”;

WHEREAS, the Commissioner, acting pursuant to Section 36b-26 of the Act and through the Securities and Business Investments Division (the "Division") of the Department of Banking conducted an investigation into the activities of Shimoda, its members, officers, agents, representatives and employees, to determine whether they, or any of them, have violated or are about to violate any provision of the Act or any regulation or order under the Act;

WHEREAS, the Commissioner alleges that from July 6, 2001 forward, Shimoda transacted business as an investment adviser in or from Connecticut at a time when no notice filing was made or fee remitted pursuant to Section 36b-6(e) of the Act, and listed a Connecticut address and telephone number on its website;

WHEREAS, following an inquiry by the Division, Shimoda removed the Connecticut office and contact information from its website;

WHEREAS, through its execution of this Stipulation and Agreement, Shimoda, through its director David J. Mapley, represents that it currently does not conduct, and will not conduct, business in the United States, nor does it currently have or will have U.S. clients;

WHEREAS, through its execution of this Stipulation and Agreement, Shimoda further represents, through its director David J. Mapley, that it has never serviced any United States clients in the past;

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, Shimoda desires to settle the matters described herein and voluntarily enters into this Stipulation and Agreement, acknowledging that this Stipulation and Agreement is in lieu of any court action or administrative proceeding adjudicating any issue of fact or law on the matters described herein;

WHEREAS, Shimoda, 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. Shimoda shall review, revise and implement such supervisory and compliance procedures as are necessary to ensure compliance with state investment advisory notice filing and registration requirements, as the case may be;
2.
No later than the date this Stipulation and Agreement is executed by the
Commissioner, Shimoda shall pay to the department via check payable to
“Treasurer, State of Connecticut” the sum of two thousand five hundred dollars ($2,500), one thousand five hundred dollars ($1,500) of which shall constitute an administrative fine and one thousand dollars ($1,000) of which shall constitute reimbursement for past due notice filing fees;
3. Execution of this Stipulation and Agreement by the Commissioner is without prejudice to the right of the Commissioner to take enforcement action against Shimoda and/or David J. Mapley 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 reflected herein is subsequently discovered to be untrue; and
4. This Stipulation and Agreement shall become binding when executed by both parties hereto.


IN WITNESS WHEREOF, the undersigned have executed this Stipulation and Agreement on the dates indicated.

 

               ________/s/_________
     Howard F. Pitkin
            Banking Commissioner

Dated at Hartford, Connecticut                 
this 16th day of October, 2006.                         
 

I, David J. Mapley, state on behalf of Shimoda Capital Advisors Limited, 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 Shimoda Capital Advisors Limited and that Shimoda Capital Advisors Limited agrees freely and without threat or coercion of any kind to comply with the terms and conditions stated herein.                                                                  

      Shimoda Capital Advisors Limited

By
       ________/s/_______________
       David J. Mapley
       Director


On this 06 day of October 2006, personally appeared David J. Mapley, 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 Shimoda Capital Advisors Limited, a limited liability company, and acknowledged the same to be his free act and deed, before me.


_______________/s/_______________________
Notary Public/Commissioner of the Superior Court
My Commission Expires:  Feb. 28, 2011




Administrative Orders and Settlements