NOS. 82 AND 499 CONSOLIDATED PHILADELPHIA, 1980, Appeals from the Orders of the Court of Common Pleas, Civil Action-Law, of Schuylkill County, at No. 3 September Term, 1972.
Marvin Comisky, Philadelphia, for appellant.
Philip M. Hammett, Philadelphia, for appellees.
Hester, Cavanaugh and Van der Voort, JJ.
[ 297 Pa. Super. Page 179]
The Yoffes owned four Pennsylvania Corporations. They authorized an attorney to find a buyer for the corporations; their asking sale price was $1,500,000. Eventually, appellant executed an agreement of sale with the Yoffes for the sale and purchase of the businesses.
Pursuant to such agreement the Yoffes received 51,064 shares of Keller stock with a value on August 24, 1967 of $29 3/8 per share for a total of $1,500,005 (51,064 X $29 3/8).*fn1 As Keller shares were not covered by any registration statement approved by the Securities and Exchange Commission, (hereafter referred to as the SEC), such shares had to be registered with the SEC before the Yoffes could sell them on the NYSE. The sales agreement provided that Keller "would undertake the registration". (Exhibit P-1 § 3a). The agreement further provided that Keller would immediately undertake to register at least one-half of the shares; the balance to be registered within two years. The agreement also contained a "Guaranty of Base Price". (Exhibit P-1, § 5). This provision was that if the closing price of Keller stock, on the day they became tradeable, was less than $29 3/8 per share, Keller would issue additional shares to make up the difference between the NYSE price and $29 3/8 per share. If the stock closed $29 3/8 or higher then the Yoffes would be entitled to no additional shares; nor would Keller be entitled to any rebate.
[ 297 Pa. Super. Page 180]
A registration statement covering 10,100 shares became effective August 11, 1968; the NYSE value per share on that date was greater than the guaranteed price. The remaining 40,964 shares "were the subject of a subsequent modification". The parties by agreement, dated December 17, 1968, redefined Keller's responsibilities regarding the registration of the remaining shares. Keller's obligation was reduced from, "undertaking the registration" to, the filing of a registration statement and to "exercise reasonable efforts" to have the statement become effective as soon as possible. The parties subsequently further amended their agreement to extend the time for filing the registration statement as to the remaining shares to June 1, 1970.
On June 1, 1970, Keller filed a registration statement with the SEC covering the remaining shares. The SEC took no action on the statement. On June 23, 1971, Keller filed an amendment to the registration statement, supplying current information as required by the SEC rules. The SEC issued a letter of comment on August 27, 1971, in which it suggested certain technical changes as a condition for approval. Keller filed a second amendment and the registration statement became effective November 30, 1971. The NYSE value of that date (after adjusting for a two for one stock split) was $37 1/2 per share; that value exceeded the guaranteed value of $29 3/8 per share.
Jack Yoffe filed an action for breach of contract on July 17, 1972.*fn2 On October 31, 1974, Donald Yoffe was permitted to join as an additional plaintiff and to file a separate amended complaint in assumpsit. The basis for the Yoffes' claim is that the second registration statement should have become effective six weeks after its filing, i.e., July 11, 1970. Appellees claimed that appellant had not proceeded with reasonable efforts to have the statement become effective. Instead it is claimed that Keller had filed a false and misleading registration statement resulting in the greater than eighteen (18) month delay. The closing value on July
[ 297 Pa. Super. Page 18111]
, 1970 was $10 1/8 per share. The Yoffes averred that had Keller exerted reasonable effort the statement would have been effective as of that date and under the guaranteed price provision Keller would have been ...