in USA florida USXP have the best service for luggage at this time if you have any questions contact "USXP" IN FLORIDA OR NEW YORK offices
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The timing of the last PR seems odd. Normally you might expect RA to save it for the next session. So maybe something interesting will hit the fan on Monday.
We all hope that is isn't something that smells bad....lol.
-------------------- Making it a little at a time....Now is the time to determine if you are a man or a mouse.
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Not bashing this could run but be Careful with USXP everyone. Read this
Posted by: bottomfeederxx In reply to: None Date:8/20/2006 3:35:38 PM Post #of 1767
SEC Suit update
SEC filed a motion for summary judgment against usxp, RA, and Gundy. They also filed a proposed order asking court to require:
Universal - $11,482,752 - disgorgement of illegal gains and interest RA - $1,636,004 - disgorgement of illegal gains and interest Gundy - $416,565 - disgorgement of illegal gains and interest
Julie K. Lutz Leslie J. Hughes Attorneys for Plaintiff Securities and Exchange Commission, Central Regional Office 1801 California Street, Suite 1500 Denver, Colorado 80202 303.844.1080 303.844.1068 (facsimile) Robert B. Blackburn (RB 1545) Local Counsel for Plaintiff Securities and Exchange Commission, Northeast Regional Office 233 Broadway, 11th Floor New York, NY 10279 646.428.1610 646.428.1979 (facsimile) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK U.S. SECURITIES AND EXCHANGE COMMISSION, : : Plaintiff : :1:04-cv-2322 (GEL) v. : : UNIVERSAL EXPRESS, INC., : RICHARD A. ALTOMARE, : CHRIS G. GUNDERSON, : MARK S. NEUHAUS, : GEORGE J. SANDHU, : SPIGA, LTD., : TARUN MENDIRATTA : : Defendants. : PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST UNIVERSAL EXPRESS, RICHARD ALTOMARE AND CHRIS GUNDERSON Plaintiff, Securities and Exchange Commission (SEC), moves the Court for entry of partial summary judgment against defendants Universal Express, Inc. (“Universal Express”), Richard A. Altomare (“Altomare”) and Chris Gunderson (“Gunderson”) pursuant to Fed.R.Civ.P. 56(a). The SEC requests entry of an order finding that Universal Express, Richard Altomare and Chris Gunderson directly or indirectly offered or sold securities without a valid registration and violated the antifraud provisions, and enjoining them from future violations. The SEC also seeks disgorgement of each’s ill-gotten gains from these sales, prejudgment interest on such disgorgement, civil penalties, penny stock bars as to Altomare and Gunderson and an officer and director bar as to Altomare. The SEC is submitting a memorandum of law in support of this motion, a separate statement of undisputed facts with supporting exhibits, and affidavits of summary witnesses, Lonnie Morgan and Kerry Matticks. There are no material issues of fact to be resolved and therefore entry of summary judgment is appropriate. Dated: August 18, 2006 Respectfully submitted, s/ Julie K. Lutz Julie K. Lutz Attorney for the Plaintiff Securities and Exchange Commission
Issuance of False Press releases by Universal Express, Altomare and Gunderson From May 2002 to April 2003, Altomare and Gunderson caused Universal Express to issue various press releases that announced Universal Express receipt of purported large funding commitments, purported acquisitions or other business operations. Gunderson and Altomare would draft and/or edit drafts of press releases based upon the underlying documentation available for each transaction as well as quotes provided by Altomare. Altomare and Gunderson reviewed and approved each release before its issuance and authorized its public issuance by Universal Express. Each release was followed by an increase in Universal Express’ share price and trading volume, which permitted Neuhaus, Mendiratta and Sandhu to profitably dispose of large amounts of Universal Express shares. May 23, 2002 Announcement of $100 million in Funding Commitments On May 23, 2002, Universal issued a press release falsely claiming it had received "Over $100,000,000 in Funding Commitments" from "two International Hedge Funds." Quoting Altomare, the release further stated: "To complete our corporate objectives, Universal obviously needs to jump start revenues, profits and logistical capabilities. Fortunately, that belief is shared by these investors, who have already invested over $5,000,000 with Universal over the past five years. . . . The $100,000,000 in the press releases referred to the letters of intent provided by Neuhaus and Sandhu. The release was misleading in that it did not disclose that the letters were solicited by Altomare from Neuhaus and Sandhu, who provided false and misleading information in the letters at the instigation of Altomare. Neuhaus prepared a letter dated March 22, 2002 which stated that Coldwater Capital, an entity Neuhaus controlled, had "authorized $5,000,000 in additional seed capital" for Universal Express and that it would "also provide up to $40,000,000 in long-term financing, if necessary." Neuhaus admitted that the value of Coldwater’s total assets at that time was far less than $45,000,000. Neuhaus valued the investments of Coldwater as definitely below $30,000,000 and testified that he did not think they ever exceeded $20,000,000 during 2002. Neuhaus also admitted that the statement in the letter that Coldwater Capital had been investing in Universal Express for the past 10 years was false. Neuhaus testified that he put these and other false statements in the letter at Altomare’s request. Neuhaus also admitted that Coldwater did not have a Board of Directors, even though the letter refers to Coldwater’s Board of Directors as having authorized the provision of capital to Universal Express. He did this also because Altomare asked him to. The letter stated that Coldwater would provide Universal Express with an additional $40,000,000, if necessary. Neuhaus testified that Coldwater could not have lent or invested as equity $40,000,000 of its own money. Neuhaus further testified that Coldwater is not a hedge fund and has never been. Neuhaus stated that it may have been Altomare who suggested referring to Coldwater as a hedge fund. Sandhu’s letter states “As investment advisor to Target Growth Fund Ltd., our Bermuda Exempted Mutual Fund, we have been investing in Universal Express for over six years. During this time we have invested over US$3,000,000. We are happy to continue investing in Universal Express at this time based on your continued development. As investment advisor, we have authorized up to US$7,500,000 in additional capital from the Fund for future approved acquisitions that Universal Express Inc. may desire to transact. We are also prepared based upon due diligence and proper collateral to arrange an additional US$50,000,000 in long term financing for such an acquisition." At the time of the letter, Target Growth Fund had invested less than $500,000 in Universal Express through convertible debentures which were bought in 1999. Further, Target Growth Fund did not have $7.5 million available to invest with Universal Express.
July 10, 2002 Announcement of $460 million Letter of Intent On July 10, Altomare issued a materially false press release announcing that "in addition to its previously announced $100,000,000 in venture funding commitments, . . . [Universal] has received a letter of intent from a funding institution for $460,000,000." At the time of the July 10, 2000 release, there was no commitment for financing. Altomare had merely contacted a loan broker who had taken no steps to arrange financing because the due diligence steps discussed by the broker with Altomare had not taken place and no lender had been located. Altomare never delivered to the loan broker promised documents corroborating the value of assets as to which the proposed loan related or any arrangements for Universal Express to acquire them. November 21, 2002 Announcement of $25 Million in Additional Funding On November 21, 2002, Universal Express issued a press release in which it announced “additional funding of $25,000,000 from Transamerica and New Millennium Financial." Quoting Altomare, the release continued, "This funding, in addition to previously announced funding of $100,000,000 and $460,000,000 . . . is designed to advance our delivery network capabilities and obviously add revenues and personnel infrastructure. . . This $25,000,000 brings our total financial commitments to $585,000,000." At the time of the press release regarding the Transamerica proposal, Altomare knew that the proposal was subject to numerous unsatisfied conditions and that necessary due diligence had not been completed. Under the terms of the proposal, Transamerica was to obtain a security interest in all of the assets of World Airways. The proposal was subject to a number of conditions and due diligence procedures, including Transamerica’s review and valuation of the World Airways assets which were to secure the proposed financing. These procedures were never commenced, because Universal Express and World Airways never moved beyond preliminary discussions in terms of any possible merger. After becoming aware of the November 2002 press release, Transamerica stated in a December 15, 2002 letter to Altomare that the announcement “incorrectly states the facts” and that Transamerica “expects that the misstated facts in your press release will be promptly corrected.” Altomare received the letter and forwarded it to Gunderson, but Universal Express failed to correct the release after receiving Transamerica's letter. The New Millenium purported financing referred to in the November 2002 release was based upon a letter which was obtained by Neuhaus from a loan broker, who issued it with respect to the possible transaction between Universal Express and World Airways. Altomare never met or spoke with the broker who issued the letter and never sought or obtained any financial or other information from the loan broker before issuing the press release. The New Millennium letter was a tentative letter of intent, and not a commitment for a $5 million credit facility. Universal Express never provided any specific information corroborating the possible transaction with World Airways to the loan broker, which was a predicate to the commencement of due diligence procedures. As a result, the loan broker never took any steps to pursue financing for the purported deal.
April 9, 2003 Announcement of $300 Million in Funding On April 9, 2003, Universal Express issued a press release with the headline "USXP . . . Receives $300,000,000 For Transportation Funding." The release then asserted that the company "to-day received $300,000,000 in committed and approved funds and plans to acquire a soon to be announced nationally established transportation company. A Letter of Intent with that Company to be acquired has been signed . . . ." The release also observed: "During the developmental stages of any company, that company may receive financial commitments based on the founder’s due diligence requirements . . . . To-day’s commitment is far more definite and it is for that reason a press release has been issued." In early March 2003, Millennium Capital, LLC ("Millennium Capital"), a loan broker in Texas, proposed to Universal Express a three-party financing program for the acquisition. Millennium's funding program required Universal Express to find a commercial bank that would bear the entire credit risk associated with Universal Express' ability to repay the $300 million. On March 28, 2003, Millenium Capital delivered a term sheet that was to expire in five days after delivery, or April 4, 2003. When Altomare and Gunderson caused the issuance of Universal Express’ April 9, 2003 press release, no bank was willing to participate in the funding program had been found with respect to Millennium Capital’s funding proposal. Fraudulent Statements Regarding Private Postal Network Membership Between April 2001 and March 2004, in periodic reports with the Commission and in press releases, Universal Express falsely stated that its business operations included various services and products being sold throughout a private postal network, called WorldPost, which had 8,000, and in later filings 9,000, members. For example, in a press release dated May 22, 2003, Universal Express announced that “the WorldPost Network of over 9,000 independently owned and operated private postal stores will continue its mission of improving cash flows and building national recognition for members of its private postal system.” The release projected increased revenues for Universal Express of $9,000,000 annually from new products and services being installed in or provided through member stores. These statements were false. Altomare testified that any postal store existing in the United States was a member of Universal Express’ WorldPost Network merely by virtue of its existence, unless it affirmatively advised Universal Express that it did not wish to be a member. No arrangements existed between these purported WorldPost Network members and Universal Express. The company’s website listed as members stores which, when approached by Universal Express personnel, had no knowledge of, or intention to enter into, any business arrangement with Universal Express.
Capital Raising Through Illegal Stock Sales Universal Express reported 345,923,232 shares outstanding as of December 31, 2002. As of December 31, 2002, Universal Express had issued 138,122,345 shares to Neuhaus. Neuhaus’ shares represented approximately 40 percent of the outstanding shares. As of December 31, 2002, Universal Express had issued 10,696,000 shares to Mendiratta’s nominees. Mendiratta’s shares represented approximately 3 percent of the outstanding shares. As of December 31, 2002, Universal Express had issued 75,572,428 shares to Spiga. Spiga’s shares represented approximately 20 percent of the outstanding shares. During the time period at issue in this case, Universal Express did not have the economic strength to buy companies larger than itself. In 2001, Universal Express generated a net loss from operations of $3,177,277. It had cash of $39,316, and other assets consisting primarily of various related party receivables valued at a total of $1,755,016, with liabilities of $3,554,542. During fiscal 2001, Universal Express generated revenues of $1,780 from business operations and received $350,000 in stock sales proceeds from Mendiratta, Neuhaus and Spiga. During 2002, Universal Express generated a net loss from operations of $3,525,238. It had cash of $31,342, and other assets consisting primarily of related party receivables, a “loan to officer” and goodwill totaling $2,373,887, with liabilities of $2,355,616. During fiscal 2002, Universal Express generated revenues of $431,199 from business operations and received $1,991,500 in stock sales proceeds from Mendiratta, Neuhaus and Spiga. During 2003, Universal Express generated a net loss from operations of $6,523,624. It had cash of $242,037, and other assets consisting primarily of related party receivables, a “loan to officer” and goodwill totaling $2,565,519, with liabilities of $2,434,090. During fiscal 2003, Universal Express generated revenues of $2,435,540 from business operations and received $2,771,328 in stock sales proceeds from Mendiratta, Neuhaus and Spiga. From April 1, 2001 through March 30, 2004, Universal Express received a total of $9,959,828 in transfers from accounts controlled by or affiliated with Mendiratta, Neuhaus, Spiga and Sandhu. From April 1, 2001 through March 30, 2004, Universal Express transferred $1,419,025.21 to Altomare. From April 1, 2001 through March 30, 2004 Universal Express transferred $361,317 to or for the benefit of Chris Gunderson.
Fraudulent Statements Regarding Private Postal Network Membership Between April 2001 and March 2004, in periodic reports with the Commission and in press releases, Universal Express falsely stated that its business operations included various services and products being sold throughout a private postal network, called WorldPost, which had 8,000, and in later filings 9,000, members. For example, in a press release dated May 22, 2003, Universal Express announced that “the WorldPost Network of over 9,000 independently owned and operated private postal stores will continue its mission of improving cash flows and building national recognition for members of its private postal system.” The release projected increased revenues for Universal Express of $9,000,000 annually from new products and services being installed in or provided through member stores. These statements were false. Altomare testified that any postal store existing in the United States was a member of Universal Express’ WorldPost Network merely by virtue of its existence, unless it affirmatively advised Universal Express that it did not wish to be a member. No arrangements existed between these purported WorldPost Network members and Universal Express. The company’s website listed as members stores which, when approached by Universal Express personnel, had no knowledge of, or intention to enter into, any business arrangement with Universal Express.
SUMMARY JUDGMENT AGAINST DEFENDANTS UNIVERSAL EXPRESS, RICHARD A. ALTOMARE AND CHRIS G. GUNDERSON
Plaintiff Securities and Exchange Commission (“Commission” or “SEC”) has filed a motion for summary judgment against defendants Universal Express, Inc. (“Universal Express”), Richard A. Altomare (“Altomare”) and Chris G. Gunderson (“Gunderson”) pursuant to Fed. R. Civ. P. 56(a). The SEC seeks entry of a summary judgment against Universal Express, Altomare and Gunderson for violation of Sections 5(a), 5(c), and 17(a) of the Securities Act of 1933 ("Securities Act") [15 U.S.C. §§ 77e(a) and (c) and 77q(a)], Section 10(b), of the Exchange Act as amended ("Exchange Act") [15 U.S.C. §§ 78j(b),] and Rules 10b-5, thereunder [17 C.F.R. §§ 240.10b-5.
For the following reasons, the motion for summary judgment is granted.
I. Undisputed Facts The following facts are undisputed: Distribution of Unregistered Stock
During the time period at issue in this case, Universal Express filed two Form S-8 registration statements which purported to register a total of 50 million shares of Universal Express stock for use as compensation to consultants and employees of the company. The Forms S-8 were drafted and filed with the SEC under the direction of Gunderson, and reviewed and signed prior to filing by Altomare. Neither Form S-8 included any reoffer prospectus through which any resales of stock by S-8 consultants were registered. Between January 1, 2001 and March 31, 2004, Universal Express filed no registration statements other than the Forms S-8.
In 2001, Universal Express entered into consulting agreements with Neuhaus, Sandhu and Mendiratta. Each agreement provided that Universal Express would compensate the consultant with stock. Between April 2001 and January 2004, Universal Express issued more than 500 million shares to Neuhaus, Spiga, and Mendiratta's nominees, increasing its outstanding shares from 19 million to over 650 million.
Between April 2001 and November 2003, Universal Express issued to Neuhaus 270,698,345 shares of Universal Express stock as to which Gunderson drafted, and Altomare reviewed and signed, letters to the company's transfer agent stating that the stock was "to be free trading under an S-8 registration." During the same period, Universal Express issued 26,233,248 unrestricted shares to Neuhaus.
Between August 2001 and December 2003, Universal Express issued to Spiga 152,389,115 shares of Universal Express stock, as to which Gunderson drafted, and Altomare reviewed and signed, letters to the company's transfer agent stating that the stock was "to be free trading under an S-8 registration." During the same period, Universal Express issued 6,310,625 restricted shares to Spiga.
Between October 2002 and January 2004, Universal Express issued 78,857,000 shares to Mendiratta’s nominees Dhingra and Kaila. With respect to these issuances, Gunderson drafted, and Altomare reviewed and signed, letters to the company's transfer agent stating that the stock was "to be free trading under an S-8 registration."
During the time period at issue in this case, Neuhaus publicly sold 259,649,167 shares of the Universal Express stock issued to him for proceeds of $9,786,588. While these sales were ongoing, Neuhaus and his affiliated entities transferred to Universal Express $5,861,488 derived from these sales
D. IT IS FURTHER ORDERED that Defendant Universal Express is liable for disgorgement of $9,959,828 representing ill-gotten gains as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $1,522,924, for a total of $11,482,752. Universal Express shall satisfy this obligation by paying $11,482,752 within ten business days to the Clerk of this Court, together with a cover letter identifying Universal Express as a defendant in this action; setting forth the title and civil action number of this action and the name of this Court; and specifying that payment is made pursuant to this Judgment. Universal Express shall simultaneously transmit photocopies of such payment and letter to the Commission’s counsel in this action. By making this payment, Universal Express relinquishes all legal and equitable right, title, and interest in such funds and no part of the funds shall be returned to Universal Express. The Clerk shall deposit the funds into an interest bearing account with the Court Registry Investment System ("CRIS") or any other type of interest bearing account that is utilized by the Court. These funds, together with any interest and income earned thereon (collectively, the “Fund”), shall be held in the interest bearing account until further order of the Court. In accordance with 28 U.S.C. § 1914 and the guidelines set by the Director of the Administrative Office of the United States Courts, the Clerk is directed, without further order of this Court, to deduct from the income earned on the money in the Fund a fee equal to ten percent of the income earned on the Fund. Such fee shall not exceed that authorized by the Judicial Conference of the United States. The Commission may propose a plan to distribute the Fund subject to the Court’s approval. Universal Express shall pay post-judgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961.
E. IT IS FURTHER ORDERED that Defendant Richard A. Altomare is liable for disgorgement of $1,419,025.21 representing ill-gotten gains as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $216,978, for a total of $1,636,004. Universal Express shall satisfy this obligation by paying $1,636,004 within ten business days to the Clerk of this Court, together with a cover letter identifying Richard A. Altomare as a defendant in this action; setting forth the title and civil action number of this action and the name of this Court; and specifying that payment is made pursuant to this Judgment. Richard A. Altomare shall simultaneously transmit photocopies of such payment and letter to the Commission’s counsel in this action. By making this payment, Richard A. Altomare relinquishes all legal and equitable right, title, and interest in such funds and no part of the funds shall be returned to Richard A. Altomare. The Clerk shall deposit the funds into an interest bearing account with the Court Registry Investment System ("CRIS") or any other type of interest bearing account that is utilized by the Court. These funds, together with any interest and income earned thereon (collectively, the “Fund”), shall be held in the interest bearing account until further order of the Court. In accordance with 28 U.S.C. § 1914 and the guidelines set by the Director of the Administrative Office of the United States Courts, the Clerk is directed, without further order of this Court, to deduct from the income earned on the money in the Fund a fee equal to ten percent of the income earned on the Fund. Such fee shall not exceed that authorized by the Judicial Conference of the United States. The Commission may propose a plan to distribute the Fund subject to the Court’s approval. Richard A. Altomare shall pay postjudgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961.
F. IT IS FURTHER ORDERED that Defendant Chris Gunderson is liable for disgorgement of $361,317 representing ill-gotten gains as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $55,248, for a total of $416,565. Chris Gunderson shall satisfy this obligation by paying $416,565 within ten business days to the Clerk of this Court, together with a cover letter identifying Chris Gunderson as a defendant in this action; setting forth the title and civil action number of this action and the name of this Court; and specifying that payment is made pursuant to this Judgment. Chris Gunderson shall simultaneously transmit photocopies of such payment and letter to the Commission’s counsel in this action. By making this payment, Chris Gunderson relinquishes all legal and equitable right, title, and interest in such funds and no part of the funds shall be returned to Chris Gunderson. The Clerk shall deposit the funds into an interest bearing account with the Court Registry Investment System ("CRIS") or any other type of interest bearing account that is utilized by the Court. These funds, together with any interest and income earned thereon (collectively, the “Fund”), shall be held in the interest bearing account until further order of the Court. In accordance with 28 U.S.C. § 1914 and the guidelines set by the Director of the Administrative Office of the United States Courts, the Clerk is directed, without further order of this Court, to deduct from the income earned on the money in the Fund a fee equal to ten percent of the income earned on the Fund. Such fee shall not exceed that authorized by the Judicial Conference of the United States. The Commission may propose a plan to distribute the Fund subject to the Court’s approval. Chris Gunderson shall pay post-judgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961.
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Doesn't make alot of sense. up to .0062 now. but the selloff already started so if you were in low now would be a good time to get out
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Yeah I just sold after i made 100 bucks after holding this bag for months. it of course went right up another 15% but I'm thrilled to death to be rid of it.
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Wow, I've had this for months, finally starting to do something. Too bad I dont have enough in this to make it interesting. I wish this would happen with xkem.
quote:Originally posted by Revrat: Yeah I just sold after i made 100 bucks after holding this bag for months. it of course went right up another 15% but I'm thrilled to death to be rid of it.
Amen to that Revrat. Also, I find it interesting how this is moving because of the PR on yesterday. So was Juice's earlier post about the SEC thing actually mean anything then? *scratches head*
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