1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 14-4244

___________

CATO CAPITAL LLC, 

a Connecticut Limited Liability Company,

Appellant

v.

HEMISPHERX BIOPHARMA INC., 

a Delaware Corporation; 

THE SAGE GROUP, INC. 

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

(D.C. Civ. Action No. 1-09-cv-00549)

District Judge: Honorable Gregory M. Sleet

______________

Argued: July 16, 2015

______________

Before: SMITH, GREENAWAY, JR., and SHWARTZ, Circuit Judges.

(Filed: August 21, 2015)

John L. Reed [ARGUED]

DLA Piper

1201 North Market Street

Suite 2100

Wilmington, DE 19801

 Counsel for Appellant
2

James J. Black, III [ARGUED]

Mark W. Drasnin, Esq.

Black & Gerngross

1617 John F. Kennedy Boulevard

Suite 1575

Philadelphia, PA 19103

Christopher P. Simon, Esq.

Cross & Simon

1105 North Market Street

Suite 901

Wilmington, DE 19801

Counsel for Appellees

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

Plaintiff-Appellant Cato Capital, LLC (“Cato”) appeals from the final judgment 

entered by the District Court in favor of Defendant-Appellee Hemispherx Biopharma, 

Inc. (“Hemispherx”) on Cato’s breach of contract claim. Cato, an investment bank, sued 

Hemispherx, a biopharmaceutical company and former client, to recover a placement fee 

after several companies invested millions of dollars in Hemispherx—notwithstanding the 

fact that: (1) Cato did not facilitate these investments, and (2) these transactions closed

after Cato’s engagement with Hemispherx had expired. After a bench trial, the District 

Court held: (1) that Cato had not satisfied a condition precedent to payment under the 
3

contract, and (2) that Cato was not entitled to payment under the contract because Cato 

did not cause the investments. See Cato Capital LLC v. Hemispherx Biopharma, Inc., 70 

F. Supp. 3d 607 (D. Del. 2014). We agree that Cato did not satisfy a condition precedent 

to payment and will affirm the District Court.1 

I. BACKGROUND

A. Factual History

1. The Beginning of the Engagement

In late 2008, Cato was introduced to Hemispherx by Hemispherx’s advisor, The 

Sage Group, Inc. (“Sage”). Hemispherx and Cato entered into a non-exclusive contract 

(“the Agreement”) whereby Cato would serve as Hemispherx’s “financial adviser and 

placement agent, in connection with facilitating debt and equity financings for 

[Hemispherx]” for a term beginning November 24, 2008 and ending March 24, 2009. JA 

0094-95. The Agreement also provided for an additional eight-month period after the 

expiration of the term of the engagement (the “Tail Period”), during which time, if 

Hemispherx closed a transaction with any investor introduced to Hemispherx by Cato (a 

“Tail Period transaction”), Hemispherx would be obligated to pay Cato a “Placement 

Fee” under certain conditions. JA 0095. 

 

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.

1 Because Cato must succeed on both arguments on appeal in order to reverse the 

District Court’s judgment, and because we conclude that Cato did not fulfill a condition 

precedent to payment under the contract, we need not reach Cato’s causation argument.
4

Specifically, Paragraphs 2(b) and 2(c) of the Agreement required Cato to provide

to Hemispherx two separate lists of potential investors (the “Cato Prospects”). They 

provided in relevant part:

(b) Payment of Fees: All applicable fees shall be payable . . . with 

respect to any Transaction completed with any Cato Prospect during . . . (ii) 

the eight month period (the “Tail Period”) following the term of this 

Agreement. At the end of the term of this Agreement, Cato shall 

designate in writing to the Company all Cato Prospects. Cato will only 

be entitled to Placement Fees for Transactions during the Tail Period 

completed with any of the listed Cato Prospects or their affiliates.

* * *

(c) . . . . Following the execution of this Agreement, Cato will 

immediately provide Company with a list of Cato Prospects which will 

be immediately reviewed by Company and once agreed, Cato Prospects 

will be attached to this agreement as appendix A.

Id. (emphasis added).

The day the Agreement was executed, Cato submitted a list of Cato Prospects (the 

“Paragraph 2(c) list”) for approval. Hemispherx approved the list and appended it to the 

Agreement. Days later, Cato sought and received approval for several additional 

prospects. The Cato Prospects included Hudson Bay Capital Management LP (“Hudson 

Bay”), Iroquois Capital (“Iroquois”), and Cranshire Capital LP (“Cranshire”).

Within the next two weeks, Cato sent Iroquois, Cranshire, and Hudson Bay an 

email outlining a proposed transaction. Cato, however, failed to secure any suitable 

offers and had no further contact with these prospects. 
5

2. Updated Prospects and the End of the Term 

On January 5, 2009, Cato submitted the names of additional investors for 

Hemispherx’s approval. Hemispherx, through Sage,

2

approved the investors the next day 

and requested a “full list, updated,” of all Cato Prospects. Cato sent the requested list on 

January 7, 2009. The list included, inter alia, Iroquois, Hudson Bay, and Cranshire. 

On March 24, 2009, the term of the Agreement ended with Cato having failed to 

secure any funding for Hemispherx. Cato did not submit a Paragraph 2(b) list of Cato 

Prospects at that time. 

3. The Tail Period

In late April, Rodman and Renshaw Capital Group (“Rodman”) contacted 

Hemispherx because of the increased market interest in companies—like Hemispherx—

with products capable of treating influenza. Rodman believed that Hemispherx could 

raise capital through an equity offering in this climate, and the two executed an 

engagement letter in early May. Soon thereafter, Hudson Bay, Cranshire, and Iroquois

collectively invested $23.5 million in Hemispherx with Rodman acting as facilitator. 

On May 22, 2009, Cato sent Hemispherx a demand letter seeking fees for the 

transactions that Hemispherx had concluded with Hudson Bay, Iroquois, and Cranshire. 

Hemispherx refused to pay Cato because it had not submitted a Paragraph 2(b) list and 

had not facilitated these transactions.

 

2 Sage acted as Hemispherx’s intermediary for most communications with Cato. 
6

B. Procedural History

Cato filed suit in the District Court against Hemispherx alleging, inter alia, breach 

of contract, and against The Sage Group alleging fraud and intentional interference with a

contractual relationship. After a three-day bench trial, the District Court ruled against 

Cato on all counts. Cato timely appealed only the breach of contract of claim, arguing: 

(1) that it substantially complied with Paragraph 2(b)’s requirement by sending the 

updated list of prospects in January 2009, and (2) that the Agreement entitles Cato to 

payment for any transaction consummated with a Cato Prospect during the Tail Period, 

regardless of whether Cato caused the transaction.

II. ANALYSIS3

We review a district court’s findings of fact following a bench trial under the 

clearly erroneous standard and exercise plenary review over its conclusions of law. 

Gordon v. Lewistown Hosp., 423 F.3d 184, 201 (3d Cir. 2005). Under Delaware law,4

contract interpretation is a question of law. Rhone-Poulenc Basic Chems. Co. v. Am. 

Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992). Generally, whether a party can 

satisfy the doctrine of substantial compliance is a question of fact. See Standard Accident

Ins. Co. v. Ponsell’s Drug Stores, Inc., 202 A.2d 271, 275 (Del. 1964).

 

3 The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and this Court 

has jurisdiction under 28 U.S.C. § 1291. 

4 The parties agree that Delaware law controls pursuant to Paragraph 3(d) of the 

Agreement’s Terms and Conditions. JA 0100. 
7

A court interpreting a contract must effectuate the parties’ intent. See Lorillard 

Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006). “Where the contract 

language is clear and unambiguous,” the court must ascertain the parties’ intent “by 

giving the language its ordinary and usual meaning.” Nw. Nat’l Ins. Co. v. Esmark, Inc., 

672 A.2d 41, 43 (Del. 1996).

For the reasons below, we conclude: (1) that the Agreement unambiguously 

required Cato to submit a Paragraph 2(b) list in order to receive payment for Tail Period 

transactions, and (2) that Cato did not comply with this requirement. 

A. Condition Precedent

The District Court correctly determined that compliance with Paragraph 2(b) is a 

condition precedent5to payment to Cato for Tail Period transactions. Paragraph 2(b) of 

the Agreement provides that “[a]t the end of the term of this Agreement, Cato shall

designate in writing to the Company all Cato Prospects,” and notes that “Cato will only

be entitled to Placement Fees for Transactions during the Tail Period completed with any 

of the listed Cato Prospects.” JA 0095 (emphasis added). This language unambiguously 

conditions payment for Tail Period transactions on Cato’s submission of a list of Cato 

Prospects at the end of the term of the Agreement. See Global Energy Fin. LLC v. 

 

5

“A condition precedent is ‘[a]n act or event, other than a lapse of time, that must 

exist or occur before a duty to perform something promised arises.’” AES P.R., L.P. v. 

Alstom Power, Inc., 429 F. Supp. 2d 713, 717 (D. Del. 2006) (alteration in original) 

(quoting Seaford Assocs. Ltd. P’ship v. Subway Real Estate Corp., No. Civ. A. 2248, 

2003 WL 21254847, at *5 n.30 (Del. Ch. May 21, 2003)).
8

Peabody Energy Corp., No. 08C-10-129 RRC, 2010 WL 4056164, at *24 (Del. Super. 

Ct. Oct. 14, 2010) (“no particular words are necessary for the existence of a condition,” 

and any “phrase that conditions performance usually connote[s] an intent for a condition” 

(internal quotation marks omitted)). Thus, Hemispherx would only be obligated to pay 

Cato’s Placement Fee if Cato submitted a Paragraph 2(b) list. 

Cato does not challenge this determination on appeal and effectively concedes that 

it did not strictly comply with Paragraph 2(b) because it failed to submit a prospect list at 

the end of term in March 2009. Rather, Cato argues that it substantially complied with 

Paragraph 2(b) by submitting an “updated” prospect list in January.

B. Substantial Compliance

1. The Agreement requires two separate prospect lists

Contrary to Cato’s argument, the Agreement unambiguously requires two separate

lists of Cato Prospects, and a single list submitted substantially before the end of the term 

cannot fulfill the requirements of both Paragraphs 2(b) and 2(c). 

Under Delaware law, a court must “give each provision and term effect, so as not 

to render any part of the contract mere surplusage.” Kuhn Constr., Inc. v. Diamond State 

Port Corp., 990 A.2d 393, 396-97 (Del. 2010). “Contractual interpretation operates 

under the assumption that parties never include superfluous verbiage in their agreement, 

and that each word should be given meaning and effect by the court.” Nama Holdings 

LLC v. World Mkt. Ctr. Venture, LLC, 948 A.2d 411, 419 (Del Ch. 2007). 
9

Paragraph 2(c) of the Agreement required Cato, upon execution of the Agreement,

to “immediately provide . . . a list of Cato Prospects” to be approved by Hemispherx and 

appended to the Agreement, while Paragraph 2(b) required Cato to “designate in writing 

. . . all Cato [P]rospects” “[a]t the end of the term of [the] Agreement” in order to receive 

payment for Tail Period transactions. JA 0095 (emphasis added). Thus, the Agreement 

contemplated two separate lists with two distinct purposes to be delivered at two different 

times pursuant to Paragraphs 2(b) and 2(c). Accordingly, each provision must be given 

independent effect. 

2. Permitting a Paragraph 2(c) list to satisfy Paragraph 2(b) renders Paragraph 

2(b) superfluous 

The District Court reasonably determined that the Cato Prospects list submitted in 

January 2009 was intended to fulfill the requirements of Paragraph 2(c) rather than 

Paragraph 2(b).6 Cato nevertheless argues that the January 2009 list provided actual 

notice of the prospects for which Cato would seek payment and thus rendered submission 

 

6

It is undisputed that on November 24, 2008, the day the Agreement was 

executed, Cato submitted a list of prospects for Hemispherx’s approval pursuant to 

Paragraph 2(c). Approximately one week later Cato sought and received Hemispherx’s 

approval to include several additional prospects on this list. Then, on January 5, 2009, 

Cato again sought permission to add prospects to the list. The next day, Hemispherx 

approved the “new [t]argets” and requested a “full list, updated,” and Cato provided the 

updated list as requested. JA 0103. Under these circumstances, the District Court did not 

err in concluding that the January 2009 list—provided two and a half months before the 

end of the term—was intended to fulfill Paragraph 2(c) rather than Paragraph 2(b). This 

conclusion is buttressed by the fact that Cato noted in its demand letter to Hemispherx 

only that Cato had provided a “Section 2(c) . . . list [that was] reviewed and accepted by 
10

of a Paragraph 2(b) list at the end of the term “redundant.” Appellant’s Br. at 13. 

However, Cato’s argument that submission of the Paragraph 2(c) list fulfilled the 

requirements of Paragraph 2(b) plainly renders Paragraph 2(b) of the Agreement

superfluous—an “updated” Paragraph 2(c) list would always render submission of a 

Paragraph 2(b) list redundant. Accordingly, we reject Cato’s substantial compliance 

argument because it “would result in a conclusion that some terms [of the Agreement] are 

uselessly repetitive.” O’Brien v. Progressive N. Ins. Co., 785 A.2d 281, 287 (Del. 2001). 

In sum, Cato failed to comply with Paragraph 2(b) and thus is not entitled to 

payment for any Tail Period transactions. 

III. CONCLUSION 

For the foregoing reasons, we will affirm the District Court’s judgment.

 

[Hemispherx].” JA 0124. It was not until the onset of litigation that Cato argued that the 

January 2009 list was intended to fulfill the requirements of Paragraph 2(b).