David Unterberg et al., Appellants, v. Therm-Air Mfg. Co., Inc., Respondent, 20 A.D.2d 260

Per Curiam. Defendant corporation desired to make a public offering of its stock. For this purpose it entered into a contract with 0. Everett Parks & Co. (herein Parks) to underwrite the proposed issue. Plaintiffs were attorneys for Parks. A registration statement to be filed with the Securities and Exchange Commission (SEC) was an essential, and defendant desired plaintiffs to collaborate with defendant’s own attorneys in its preparation. A written contract of retainer was entered into, and it is on this contract that plaintiffs sued.

The contract provides that defendant will pay plaintiffs for the services they will render to Parks, the amount of which is fixed at $6,500; and that defendant will pay, in addition, $3,500 for services rendered in preparation of the registration statement, the latter services to be rendered under supervision of defendant’s counsel. For convenience of defendant, it was provided that the payments required should be made $3,000 on signing of the underwriting agreement, $2,000 upon the registration becoming effective, and $5,000 upon sale of 12,500 shares of stock to be sold pursuant to the offering.

The agreement further provided: “ If, through no fault of the undersigned, the Registration Statement is made the subject of a stop order or is withdrawn, or the undersigned, through no fault of this firm, is unable to file such Registration Statement, which inability is directly or indirectly attributable to you, in that event you shall be obligated to us for the total fee set forth herein, less the retainer previously provided for. ’ ’ The underwriting agreement was signed at the same time as this agreement, and defendant paid plaintiffs $3,000, as stipulated in their contract.

Plaintiffs prepared a registration statement. This was materially revised by defendant’s counsel. Plaintiffs protested the changes but, at defendant’s direction, submitted the revised edition to the SBC. The latter found the statement failed to meet its requirements and advised that, unless it were withdrawn promptly, proceedings would be instituted to prevent its becoming effective. The statement was withdrawn. Shortly thereafter, Parks withdrew from the underwriting agreement. The underwriting agreement provided that Parks could do so at any time for any reason whatsoever.

Plaintiffs argue correctly that the provisions for filing the registration statement and for the sale of stock are not conditions for payment but merely events fixing the time of payment. But the qualification in the quoted paragraph shows when withdrawal is not to operate as a bar to payment.

It is when inability ,[to file the registration statement] is directly or indirectly attributable to you [the defendant].” Here the trial court did not regard the effort to file a registration statement as finally terminated by the ruling or request of the SBC, and, in the ordinary course, efforts to comply with the commission’s objections would be made. Such efforts, and the ability to file a statement, were terminated by Parks’ withdrawal from the transaction—a cause not attributable either directly or indirectly to the defendant. In that event, defendant would have no further liability.

That this is no mere technical determination is evident once the underwriting agreement is read, in that defendant agrees to pay Parks ’ expenses, including its counsel fees, up to $10,000. In that connection, it was further stipulated that, should Parks exercise its right to withdraw, defendant’s liability for expenses would be curtailed and, specifically, liability for Parks’ counsel fees would be limited to $4,000. The agreement on which plaintiffs sue merely implemented one aspect of the underwriting agreement. The judgment should be affirmed, with costs.