Supplemental Declaration of Chris Gunderson Nov 13th, 2006

Below is a detailed declaration filed by the General Counsel of Universal Express, Chris Gunderson from November, 13th 2006. It discusses the history of the company and the Naked Short Selling problem that has effected its business and shareholders.

(In further support of USXP, Richard Altomare and Chris Gunderson's motion for partial summary judgment and in opposition to the SEC's motion for partial summary judgment.)
___________________________________________


BARRY SCHAEVITZ, ESQ. (BS-3405)
JACOB MEDINGER & FINNEGAN, LLP
Local Counsel for Defendants,
Universal Express, Inc., Richard A.
Altomare, and Chris G. Gunderson
1270 Avenue Americas, 31s FL
New York, New York 10020
(212) 332-7773
(212) 332-7239 (facsimile)
and
ARTHUR W. TIFFORD, ESQ.
TIFFORD AND TIFFORD, P.A.
Lead Counsel for Defendants,
Universal Express, Inc., Richard A.
Altomare, and Chris G. Gunderson
1385 NW 15 STREET
MIAMI, FL 33125
(305) 545-7822
(305) 325-1825 (facsimile)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
CASE NO. 04cv 02322 GEL

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U.S. SECURITIES AND EXCHANGE COMMISSION :
:
Plaintiff, :
:
v. :
:
UNIVERSAL EXPRESS, INC., RICHARD A. :
ALTOMARE, CHRIS G. GUNDERSON, MARK :
S. HEUHAUS, GEORGE J. SANDHU, SPIGA, :
LTD., AND TARUN MENDIRATTA, :
:
Defendants, :
------------------------------------------x

SUPPLEMENTAL DECLARATION OF CHRIS GUNDERSON
IN FURTHER SUPPORT OF USXP, RICHARD A. ALTOMARE
AND CHRIS G. GUNDERSON’S MOTION FOR
PARTIAL SUMMARY JUDGMENT AND IN OPPOSITION
TO SECURITY AND EXCHANGE COMMISSION’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
(Electronically Filed)

CHRIS G. GUNDERSON, in his capacity as General Counsel for UNIVERSAL EXPRESS, INC. (“USXP”) and personally (“Gunderson”) files this supplemental declaration under penalties of perjury in further support of Universal’s, Altomare’s and his own motion for partial summary judgment and in opposition to the Security and Exchange Commission’s Motion for Partial Summary Judgment (“the Universal partial summary judgment motion”). In doing so, he states and declares:
1. My name is Chris Gunderson. I am the same Chris Gunderson who previously executed a Declaration filed in the above-styled and numbered proceedings in support of USXP, Altomare and my own motion for partial summary judgment. All that follows is based on my personal knowledge or the corporate knowledge of USXP, or both.
2. I have been a member of the State of New York since 1963, a period of 43 plus years. During those more than 43 years I have never been the subject of a complaint to the Bar Disciplinary Counsel or the disciplinary processes of the New York State Bar nor any other bar, and I have never been disciplined by the disciplinary processes of the New York State Bar, nor any other bar. My standing as a member in good standing of the Bar of the State of New York has always been unblemished. I am currently 69 years old.
3. I have been General Counsel for USXP since its reorganization as approved by the United States Bankruptcy Court for the Eastern District of New York as confirmed by the Order of that Court dated February 18, 1994. The February 18, 1994 order confirmed USXP’s (known as by its former name) Chapter 11 First Amended Plan of Reorganization dated December 13, 1993.
4. During my depositions sworn to on April 13, 2006 and, by agreement of the parties on April 21, 2006, I responsively and truthfully answered all questions put to me by counsel for the Securities and Exchange Commission (“SEC”). With respect to all questions asked of me addressing various press releases my oath is reconfirmed in this declaration. As to each and every press release published or caused to be published by USXP, I, the company’s chief executive officer, (“CEO”), Mr. Richard A. Altomare, and those professional publicists consulted and employed by the company, each and all steadfastly maintained an orderly process which included verifying the accuracy of the titles to the press releases and the operative language contained below the title in the body of the press releases. At all times the press releases were based upon documents received from the various funding sources and substantive conversations referenced in the press releases substantiating a good faith basis for the language employed in the press releases. For example, if a financial entity expressed a “commitment” to the company, that was a commitment to fund, subject to due diligence, an expression found throughout various potential funding source documents I have worked with during my 43 year career as an attorney and member of the Bar of the State of New York.
5. The language employed in the press releases, each and all, were supported by a substantive basis involving reasonable and realistic commercial practices and reasonable and realistic business-like practices based on my experience as a licensed attorney for more than 43 years.
6. I invite the Court to review in detail my sworn testimony April 21, 2006, pp. 1-177 and, in my sworn testimony April 13, 2006, pp. 1-450 in further substantiation of the foregoing statements and those that follow.
7. As I also stated in response to various questions posed to me by counsel for the SEC during my deposition on April 21, 2006, all free-trading shares that were issued to Spiega, Ltd., under the auspices of Mr. Sandhu, Mr. Mendirotta, to his nominees in response to his specific requests, and to Mr. Neuhaus were issued responsive to their providing consulting and professional advisory services to the company to promote its growth and protect its business base/bases, all in accordance with Bankruptcy Court’s confirmation and approval of USXP’s First Amended Disclosure Statement pursuant to Section 1125 of the Unites States Bankruptcy Code, to which the company’s First Amended Plan for Reorganization was Exhibit A, the company’s (debtor-in-possession) Liquidation Analysis dated October 31, 1993 was Exhibit B, the Order Approving the Disclosure Statement and Fixing the Time for Filing Acceptances or Rejections of the Plan, Combined with Notice Thereof, dated December 23, 1993 was Exhibit C, the 1994 Stock Option Plan (“SOP”) was Exhibit I, first document, and Mr. Altomare’s Employment Contract was Exhibit I, second document. These various documents were filed for record in these proceedings to further substantiate my initial Declaration, this Supplemental Declaration, and my sworn testimony dated April 13 and April 21, 2006.
8. All of the bankruptcy documents identified herein and in my initial Declaration, together with certain other exhibits to the First Amended Disclosure Statement were filed with the SEC on December 14, 1994. The various documents were referenced in each and every annual periodic reporting by the company since December 14, 1994, and routinely referenced, where appropriate, in quarterly periodic reporting by the company in compliance with Section 12(g) of the Securities and Exchange Act. The documents also were delivered to Mr. Hugh Beck, counsel for the SEC as part of the company’s document delivery in compliance with that certain August 23, 2003 subpoena caused to be served on the company by the Denver office of the SEC.
9. As I stated during my April 21, 2006 deposition testimony, and as I highlighted through Exhibits 2-6 appended to my testimony that day, the SOP provided for the plan to be managed in the unbridled discretion of either the company’s board of directors or a management committee, the later not being deployed by the company which instead utilized the services of its board of directors to manage the plan. Pursuant to amendment authority expressly provided for in the SOP, the plan was amended by the board of directors such as to directly issued shares of free-trading stock in exchange for consulting and professional advisory services rendered to the company in lieu of the more cumbersome option process. The filing of the bankruptcy documents, including the SOP, and the company’s continued referencing of those bankruptcy documents in all of its regular reporting on an annual basis and quarterly basis where appropriate always constituted the functional equivalent of an S-8 registration. In addition, in approving the First Amended Plan for Reorganization and the SOP, those documents became integrated into the order of the bankruptcy court. Those documents provided that,
“…Entry of the confirmation Order shall also
constitute an order of the Bankruptcy Court
that the Debtor has, by virtue of its
public filings, complied with the reporting
requirements of the Securities Exchange Act
of 1934 through the Effective Date.”

“…Upon Confirmation, however, as a publicly
held corporation, the Debtor remained subject
to Securities and Exchange Commission reporting
requirements and subsequent to Confirmation of
the Plan and the Reorganized PPS (now Universal
Express) intends to comply with all periodic
Reporting requirements including Section 12(g)
of the Securities and Exchange Act of 1934.”
Nowhere does the bankruptcy court confirmation order or the language of the First Amended Plan for Reorganization or any of its exhibits affirmatively require the company to issue new S-8 Forms relating to future issuances of (free-trading) stock in exchange for the consulting and professional advisory services provided for in the SOP. (First Amended Plan for Reorganization, Section VI.F. at 16).
10. In addition, although the First Amended Plan for Reorganization provided for new common stock to be authorized for issuance in the Amended Articles of Incorporation, and for 1,250,000 shares to be specifically devoted to common stock as part of the SOP, both the First Amended Plan for Reorganization and the SOP provided for expanders in the event the company is recapitalized. USXP was continuously recapitalized, almost on a daily basis, as a result of the naked shorting of stock allowed for by both the SEC and Digital Trading Clearing Corporation (“DTCC”) since 1997. The company has been unable to determine the exact number of shares considered in the market as a result of the naked short selling scandal tolerated and condoned by the SEC because both refuse to divulge that information. But there have been days where as much as 77 times the company’s authorized, issued and known to be outstanding shares, have traded, giving rise a more than reasonable inference that there is well over 100 times the company’s authorized, issued and known to be outstanding shares of common stock illegally in the market as a result of the naked shorting of the company’s stock. Those circumstances supported issuing additional shares and, ultimately, the number of shares issued to the company’s consultants and professional advisors.
11. The SOP specifically provided for an expander provision directly relating to the number of outstanding shares of common stock of the company having a direct impact on the number of shares to be issued pursuant to the SOP as free-trading shares for the remuneration of consultants and professional advisors, providing to the board of directors the sole and absolute discretion to determine how the number of shares shall be adjusted. The specific language providing this expander is contained in the SOP, Section 3 at p. 3. See also my testimony sworn to April 21, 2006 at pp. 144-149.
12. The First Amended Plan for Reorganization further specifically immunizes the company, Mr. Altomare, and all of the company’s agents, officers, directors, employees and members from incurring any liability to any person for any act taken or omission made in connection with or related to “implementing…or consummating The Plan…the Disclosure Statement, the Reorganization Case, or any contract, instrument or other agreement or document entered into in connection with The Plan or the Reorganization Case, or regarding any distributions made pursuant to The Plan, except as expressly provided in such contract, instrument, or other agreement or document entered into in connection with The Plan.” (Plan for Reorganization, Section VI.L).
13. All measures undertaken by the company with respect to the issuance of free-trading shares pursuant to and in accordance with the Bankruptcy Court order approving the First Amended Plan for Reorganization and its SOP, all decisions relating thereto by me, and by Mr. Altomare in relying on my legal advice as general counsel for the corporation, were given and exercised in good faith reliance on the language of the United States Bankruptcy Code, the First Amended Plan for Reorganization and the SOP. No advice rendered by me, no action executed by Mr. Altomare on behalf of the company relative to the subjects discussed in this Supplemental Declaration and in my deposition was ever uttered or done except in good faith reliance on the language in the United States Bankruptcy Code, the First Amended Plan for Reorganization and the SOE.

Dated this 13th day of November 2006


__________________________
CHRIS G. GUNDERSON

CERTIFICATE OF SERVICE

I hereby certify that on November 13, 2006, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF System, which will send notice of electronic filing to the following:
Julie K. Lutz, Esq.
Attorney for Plaintiff
U.S. Securities and Exchange Commission
Central Regional Office
1801 California Street, Suite 4800
Denver, CO 80202-2648

Robert B. Blackburn, Esq.
Attorney for Plaintiff
U.S. Securities and Exchange Commission
233 Broadway, 11th Floor
New York, NY 10279

Marvin Pickholz, Esq.
Jason Pickholz, Esq.
Akerman Senterfitt LLP
335 Madison Avenue
Suite 2600
New York, NY 10017


John B. Harris, Esq.
Stillman & Friedman
425 Park Avenue
New York, NY 10022

Harry H. Wise, III, Esq.
770 Lexington Avenue, 6th Floor
New York, NY 10021

John A. Hutchings, Esq.
Dill Dill Carr Stonebraker & Hutchings, P.C.
455 Sherman Street, Suite 300
Denver, CO

Respectfully submitted,

TIFFORD & TIFFORD, P.A.
Lead counsel for Universal,
Altomare and Gunderson
1385 N.W. 15th Street
Miami, FL 33125
(305) 545-7822
FAX: (305) 325-1825

BY /S/
ARTHUR W. TIFFORD
(NY ID- 011481)

Click Links Below For Easy Navigation:

1. Supreme Court Case
2. 150 Articles: SEC finally admits Naked Short Selling is a HUGE problem and a cause for financial crisis (July 15th, 2008 et. seq-September 15th, 2008 et. seq)
3. Richard Altomare's "Prison Inc." Book Excerpts
4. Universal Express Statement
5. Universal Express Recitation of Facts by General Counsel
6. Brief in Support of USXP Entitlement to Trial by Jury
7. Universal Express Complaint filed against SEC- March 3, 2004
8. USXP Full Page Ad in New York Times
9. Office of Inspector General Semi Annual Report to Congress- March 31, 2008
10. Richard Altomare's Speech on Naked Short Selling
11. USXP Quarterly and Annual Reports
12. Exhibit A and B: Universal Express Press Releases and Published Articles on Naked Short Selling 1998-2007
13. Universal Express Motion for Partial Summary Judgment
14. Supplemental Declaration of Chris G. Gunderson- Nov 13, 2006
15. Universal Express et al Motion for Reconsideration- March 8th, 2007
16. USXP Memo of Law in Support of Motion for Reconsideration
17. Universal's Declaration of General Counsel in Response to SEC's Request for a Receiver