USXP SEC Files Contempt Motion Vs Universal Express
Last update: 7/2/2007 5:41:47 PM
By Carol S. Remond
A Dow Jones Newswires Column
When it comes to Universal Express Inc. (USXP), the problem has always been about share dilution and not, as the company would like investors to believe, illegal short selling.
And the Securities and Exchange Commission seems to finally be at the end of its rope, asking a district court judge on Friday to order Universal Express Chief Executive Richard Altomare and counsel Chris Gunderson incarcerated until they obey an April court order barring them from being involved in penny stock sales and ordering them to pay $21.9 million.
The SEC also wants the two in jail until they account for the sale of almost 21 billion shares in unregistered stock issued so far this year.
Arthur Tifford, a lawyer for Universal Express, Altomare and Gunderson, was not immediately available to comment.
Universal Express in a press release Monday said the SEC's "unwarranted attacks" are an attempt by the commission to clamp down on the company and others who have complained about so-called naked short selling.
Short sellers typically borrow shares to sell them, hoping that they will be able to replace them with shares bought at a lower price later. Trading without a borrowing agreement is called naked short selling.
It all began almost four years ago, when Universal CEO Altomare started blaming naked short selling for his company's failing finances.
By March 2004, investors learned from the SEC that Universal Express, Altomare and Gunderson had illegally sold some 500 million unregistered shares into the market, using erroneous press releases to support the company's stock price.
Universal Express unsuccessfully argued that it could sell unregistered stock under a bankruptcy code exemption.
Earlier this year, a federal judge in the Southern District of New York sided with the SEC, finding that Universal Express, Altomare and Gunderson violated securities registration and antifraud provisions. The judge enjoined the defendants from further violations and barred Altomare from serving as an officer and director of a public company.
According to the SEC, Universal Express has continued, despite the judge's order, to sell billions of unregistered shares into the market.
But the proverbial gig might soon be up for Universal Express, Altomare and Gunderson.
On Friday, the SEC filed a motion for entry of civil contempt, asking federal judge Gerald Lynch to jail Altomare and Gunderson until they both cease selling unregistered stock. The SEC also asked that Altomare remain incarcerated until he obey the order barring him from acting as a director and officer of a public company.
The commission also requested that the judge fine Altomare $220,000 for his failure to resign as an officer and director, as well as fine Universal Express $2,500 for each day Altomare remains as an officer.
According to the SEC, Altomare instructed Universal Express's transfer agent to issue 15.5 billion shares to third parties after the April 2 court order barring him from doing so. The SEC also said in its court filing that Altomare increased the company's number of shares authorized from 22.9 billion to 41.8 billion. The commission also argued that Gunderson was a necessary participant in the stock offering, preparing instructions and opinion letters submitted to Universal Express' transfer agent.
The commission asked Judge Lynch to set a hearing on its contempt motion, as well as a motion it filed late last month to appoint a receiver for the company.
(Carol S. Remond is an award-winning columnist who won a Gerald Loeb Award in 2005 for best news service content with "Exposing Small-Cap fraud," a series of articles that described how three small companies unscrupulously pumped up their stocks.)
- By Carol S. Remond; Dow Jones Newswires; 303 997 5783; carol.remond@dowjones.com
(END) Dow Jones Newswires
July 02, 2007 17:41 ET (21:41 GMT)
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