231 F.3d 1315 (11th Cir. 2000)
THERATX, INC., Plaintiff-Counterclaim Defendant-Appellee-Cross-Appellant,v.James DUNCAN, Timothy S. Smick, et al., Defendants-Counterclaim Plaintiffs- Appellants-Cross-Appellees,
No. 99-11451.
United States Court of Appeals, Eleventh Circuit.
November 2, 2000.November 15, 2000

Appeals from the United States District Court for the Northern District of  Georgia. No. 95-03193-CV-RWS-1), Richard W. Story, Judge.
Before BIRCH, BARKETT and ALARCON*, Circuit Judges.
BIRCH, Circuit Judge:


1
Appellee-cross-appellant TheraTx, Inc. appeals the district court's grant of  summary judgment to the Duncan Group on its breach of contract claim.  Appellants-cross-appellees the Duncan Group1 appeal the district judge's  calculation of their damage award. James and Jean Duncan and Timothy and Bobbi  Smick, members of the Duncan Group, also appeal the district court's  determination that they lacked standing to recover damages for shares of TheraTx  stock that were transferred to their respective charitable trusts and shares  that they received as a gift from James F. McCormick.

I. BACKGROUND
A. The TheraTx Stock

2
In 1994, TheraTx, a Delaware health care corporation with its principal place of  business in Georgia, began negotiations with the management of PersonaCare,  Inc., a privately held corporation that owned nursing facilities, and  PersonaCare's majority shareholder, Warburg-Pincus. The remaining shares in  PersonaCare were owned by members of the Duncan Group and other individuals.  Warburg-Pincus did not believe that the management of PersonaCare was capable of  building the company into a serious competitor in the health care business, and  sought out a merger partner. Warburg-Pincus was referred to TheraTx. See R7-59,  Ex. E at 11. TheraTx was attractive to Warburg-Pincus because TheraTx's  management was "looking to more rapidly pursue a consolidation in the industry,  ... appeared to have a better understanding of where the industry was going, and  ... were just more likely to be able to build a growing company." Id. The  PersonaCare shareholders, including the Duncan Group, expected TheraTx to grow.


3
In May 1994, TheraTx and PersonaCare entered into a merger agreement (the  "Agreement"). See R7-59, Ex. A. Under the Agreement, PersonaCare shareholders  exchanged their stock for restricted, unregistered stock in TheraTx. Because the  parties anticipated that TheraTx would undertake a public offering of its shares  of common stock as soon as practicable following the merger, the Agreement  included a provision that, in the event that TheraTx went public, it would file  a Shelf Registration effective for two years.2 On 24 June 1994, TheraTx  conducted a successful IPO at $12 per share. On 7 December 1994, TheraTx's  counsel notified the former PersonaCare shareholders that they were free to  trade their TheraTx stock under the Shelf Registration beginning on 12 December  1994. The letter advised the former PersonaCare shareholders that any transferee  of their shares who wished to sell would have to be listed in the Shelf  Registration. The letter also advised that "it may become necessary to suspend  the use of the Shelf Registration pending [any legally required] amendment."  Def. Trial Ex. 6 at 2. On 12 December 1994, TheraTx effected a Shelf  Registration covering the TheraTx common stock distributed to all former  PersonaCare shareholders under the Agreement. That day the shares traded at  $19.50. During the next month, the shares traded between $16.50 and $20.126 per  share.


4
In November 1994, TheraTx began negotiations to purchase the assets of eight  healthcare companies managed by Southern Management Services, Inc. ("SMS").  TheraTx and SMS entered into an agreement for the purchase of the SMS assets on  13 January 1995. TheraTx discussed the effect of the SMS purchase on the Shelf  Registration with officials at the SEC and concluded that it was necessary to  suspend trading under the Shelf Registration in order to amend it to include  information regarding the SMS transaction. On 12 January 1995, TheraTx advised  the former PersonaCare shareholders by letter that their ability to trade under  the Shelf Registration would be suspended on 13 January 1995.3 On 13 January  1995, TheraTx publicly announced the SMS transaction and suspended trading of  its shares under the Shelf Registration, and TheraTx stock closed at $18.750 per  share.


5
On 29 June 1995, TheraTx notified the former PersonaCare shareholders that the  trading suspension would be lifted on June 30.4 During the suspension period,  the value of TheraTx stock rose to a high of $23.125 on February 3, and closed  at $13.375 on June 30. TheraTx was bought by Vencor, Inc. on a tender offer of  $17.10 per share in March 1997.

B. The Duncan Shares

6
During the summer and fall of 1994, Timothy Smick, former PersonaCare Chairman  and Chief Executive Officer, and James Duncan, former PersonaCare President, met  with stock brokers, money managers and a tax attorney regarding the transfer of  their TheraTx stock holdings to charitable remainder trusts in order to take  advantage of the associated tax benefits.


7
Smick established two trusts on 13 December 1994, and Duncan established two  trusts on 22 December 1994. On 16 December 1994, Smick gifted at total of  150,000 shares of TheraTx stock to his two trusts. Smick also endorsed his  certificate and delivered it to his stockbroker and the trusts' money manager,  Alex. Brown & Sons, Inc. ("Alex. Brown"). On 27 December 1994, Duncan instructed  Alex. Brown to transfer his TheraTx stock into two trust accounts on the date  that the stock hit certain target prices, and, about the same time, delivered  the stock certificate and a written assignment. The stock certificates of Duncan  and Smick stated that their shares were "transferable only on the share register  of said corporation, in person or by duly authorized attorney." R13-98-Exs. R,  S. On 12 January 1995, Alex. Brown notified TheraTx's stock transfer agent of  the wishes of Duncan and Smick to transfer their stocks to their respective  trusts. In each letter, Duncan and Smick requested that the shares be  transferred without restrictions. Alex. Brown transferred the shares to the  trusts and confirmed the transfers to Duncan and Smick.


8
TheraTx's counsel notified TheraTx's stock transfer agent that the transfers of  the "request effective as of January 12, 1995 ... on behalf of Mr. James W.  Duncan, Jr." and of the "request effective as of January 12, 1995 ... on behalf  of Mr. Timothy S. Smick" were approved on 13 April 1995 and 23 March 1995,  respectively. R12-96, Exs. F and G; R13-98, Ex. N at 39-41. TheraTx's stock  transfer records show that the transfer from Duncan to his trusts occurred on 18  April 1995, and from Smick to his trusts occurred on 3 April 1995. Smick's  federal income tax return reflected a December 1994 transfer of stock to the  trusts. Duncan's federal income tax return reflected a January 1995 transfer of  stock to the trusts.


9
The Duncans and Smicks filed a complaint for breach of contract as trustees, and  sought damages on behalf of their respective trusts. The district judge  dismissed these claims, holding that the trusts lacked standing because the  registration rights under section 6.6 of the Agreement were not assignable. The  Duncan Group moved for reconsideration, arguing that Duncan and Smick should be  permitted to "assert their breach of contract claims with respect to those  shares of TheraTx stock transferred in April 1995 to their respective charitable  remainder trusts." R12-96-2. The district judge, however, found that no  determination of when Mssrs. Duncan and Smick transferred sizable portions of  their TheraTx holdings to charitable trusts was necessary, because the  undisputed evidence showed that, as to the shares transferred to the trusts, no  damages were suffered by Duncan and Smick as a result of the breach, regardless  of the dates of transfer. Although the Duncan Group, on reconsideration,  requested that the district court determine the date of transfer, the district  court denied the request, noting that "there are no perils of uncertainty with  respect to the charitable trust shares that should be laid at TheraTx's door  and, instead, any belief that recovery may be had for these shares should be  laid to rest." R15-113-3-4.

C. The McCormick Shares

10
James McCormick received 150,118 shares of TheraTx stock in the merger. During  the fall of 1994, he transferred 18,700 shares of TheraTx stock to Duncan and  transferred 18,700 shares of TheraTx stock to Smick.5 The district judge also  found that Duncan and Smick had no standing to sue or to recover damages with  respect to these shares because they "received the McCormick shares by transfer  after the merger agreement." R15-114-2-3.

D. Other Duncan Group Members

11
None of the other Duncan Group Members disposed of their shares until after the  suspension was lifted. After the suspension was lifted, those shares sold in the  range of $13.311 to $18.750 per share until the shares were proffered to Vencor  at $17.10 per share.

E. The Lawsuit

12
TheraTx filed an action for declaratory judgment, seeking clarification of the  rights, status and legal relations of the parties under the Agreement regarding  the suspension of the Shelf Registration. The Duncan Group counterclaimed that  TheraTx had violated section 10(b) of the 1934 Securities Act, breached the  Agreement, committed common-law fraud, and made a negligent misrepresentation.6  On the breach of contract claim, the district court found that the Agreement's  terms requiring the Shelf Registration to remain in effect for two years was  unambiguous and that TheraTx breached the contract when it suspended trading  under the Shelf Registration.

II. DISCUSSION

13
On appeal, the Duncan Group argues that the district court erred by concluding  that it could not recover damages for the TheraTx stock transferred to the  charitable remainder trusts. They assert that if the transfers of TheraTx stock  to the trusts occurred after the breach, then Duncan and Smick have standing to  recover damages based upon those shares. They also argue that they have standing  to recover damages based upon the shares they received from McCormick, because  TheraTx acknowledged that transfer on its register. The Duncan Group further  contends that the district court erred in its calculation of damages by  deducting from the award the actual amount for which they sold their TheraTx  stock once trading under the Shelf Registration resumed. TheraTx argues that the  district court incorrectly determined that it breached its obligation under  Section 6.6 of the Merger Agreement by suspending trading as required by the  SEC.


14
We review de novo the district court's order granting summary judgment. See  Williams v. Vitro Services Corp., 144 F.3d 1438, 1441 (11th Cir.1998). A motion  for summary judgement should be granted when "the pleadings, depositions,  answers to interrogatories, and admissions on file, together with the  affidavits, if any, show that there is no genuine issue as to any material fact  and that the moving party is entitled to a judgment as a matter of law."  Fed.R.Civ.P. 56(c). There is no genuine issue for trial "[w]here the record  taken as a whole could not lead a rational trier of fact to find for the  non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.  574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In making this  assessment, we must "view all the evidence and all factual inferences reasonably  drawn from the evidence in the light most favorable to the nonmoving party,"  Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th  Cir.1997), and "resolve all reasonable doubts about the facts in favor of the  non-movant." United of Omaha Life Ins. v. Sun Life Ins. Co., 894 F.2d 1555, 1558  (11th Cir.1990).


15
The parties agreed that "[t]he laws of the State of Delaware ... govern the  validity of [the Agreement], the construction of its terms, and the  interpretation and enforcement of the rights and duties of the parties."  R13-98-Ex. A at 58. Accordingly, we apply Delaware contract law.

A. Breach

16
In determining that TheraTx breached its contractual duty under section 6.6 of  the Agreement, the district judge reasoned that the "core purpose, indeed the  only purpose, of the Shelf Registration Statement was to give PersonaCare  shareholders the right to trade at any time after TheraTx publicly offered its  stock" and that, by promising to maintain the effectiveness of the Shelf  Registration, TheraTx had promised "that action w[ould] be taken to ensure that  the [Shelf Registration] continue[d] to perform its core purpose." R8-79-14.


17
On appeal, TheraTx argues that its obligation "to cause the Shelf Registration  to remain in effect for two years" under section 6.6 of the Agreement must be  interpreted by giving the word "effect" its meaning as a term of art in the  context of securities regulations governing the Shelf Registration. According to  this argument, the Shelf Registration remained "in effect" following TheraTx's  merger with SMS despite the suspension of trading that prevented the Duncan  Group from selling its shares of TheraTx stock. TheraTx contends that the Shelf  Registration was still "in effect" when it suspended trading under the Shelf  Registration in order to amend its prospectus, and, given its stated strategy of  growth via acquisitions, it was unreasonable for the PersonaCare shareholders to  expect that TheraTx would not complete any acquisitions which might require such  a suspension of trading under the Shelf Registration.


18
Under Delaware law, courts seeking to resolve contract disputes look first to  the terms of the contract itself. See Continental Insurance Company v. Rutledge  & Company, Inc., 750 A.2d 1219, 1228 (Del.Ch.2000). In doing so, we "give the  terms of contracts their plain meaning" and should "not look behind the terms  and provisions of a clear and unambiguous contract." Id. A contract is clear and  unambiguous when its terms "establish the parties' common meaning so that a  reasonable person in the position of either party would have no expectations  inconsistent with the contract language." Eagle Industries, Inc. v. DeVilbiss  Health Care, Inc., 702 A.2d 1228, 1232 (Del.1997). Only when a contract  provision is "fairly susceptible of different interpretations" should a court  "look beyond the language of the contract to ascertain the parties' intentions."  Id.


19
We agree with the district judge that section 6.6 of the Agreement is clear and  unambiguous, and should, therefore, be interpreted according to the plain  meaning of its terms. We also conclude that the rules governing the effective  date of a registration statement and amendments thereto, codified at 15 U.S.C.   77g, do not utilize the word "effective" in a unique or distinctive manner,  thereby creating a special meaning or making the word a term of art within the  arena of securities law.


20
While we agree with TheraTx that it seems implausible that the "expert  securities lawyers" representing both parties to the Agreement did not  anticipate the possibility that TheraTx, a company with a stated strategy of  growth by acquisition, would be required by securities regulations to suspend  trading under the Shelf Registration as a result of some future merger or  acquisition, see Amended Brief of Appellee-Cross-Appellant at 50, we conclude  that TheraTx was in the best position to fully appreciate the parameters of its  growth strategy and anticipate the impact this strategy would have upon its  commitments under the Agreement. Therefore, it was incumbent upon TheraTx to  appropriately tailor its contractual obligation under section 6.6 to account for  the possibility that it might engage in a merger which would necessitate the  suspension of trading under the Shelf Registration. The PersonaCare shareholders  were entitled to rely on the contract terms as written. Accordingly, we conclude  that TheraTx breached its contractual obligation under section 6.6 of the  Agreement when it suspended trading under the Shelf Registration following its  merger with SMS.

B. Standing
1.Trust Shares

21
The district judge determined that the trustees of the charitable remainder  trusts created by Duncan and Smick did not have standing to collect damages  associated with TheraTx's breach of the Agreement because the rights provided to  the PersonaCare shareholders by section 6.6 of the Agreement were not  assignable. The district judge did not determine the effective date of Duncan  and Smick's transfer of their TheraTx stock to the respective charitable trusts,  because he concluded that Duncan and Smick had not suffered actual monetary  damages with regard to the TheraTx stock transferred to the trusts as a result  of the breach. The district judge reasoned that "[t]he only monetary benefit  that Messrs. Duncan and Smick received from donating TheraTx shares to the  charitable trusts was their ability to claim charitable tax deductions based on  the value of the stock at the time of the transfer." R14-103-3. He concluded  that, because the suspension of trading had not delayed or affected Duncan and  Smick's ability to transfer the stock to the trusts, TheraTx's breach of  contract had not affected the value of the charitable donations made by Duncan  and Smick and the associated tax deductions.


22
On appeal, the Duncan Group argues that if Duncan and Smick continued to hold  all of their TheraTx stock at the time of TheraTx's breach, and the transfer of  their TheraTx stock to charitable remainder trusts did not become effective  until after the breach, then they have standing to sue for the damage caused by  to them by the breach regardless of their subsequent disposition of the stock.  The Duncan Group further argues that Duncan and Smick were damaged by TheraTx's  breach because the suspension of trading caused a reduction in the trust income  that they were entitled to receive annually during their lifetimes by  interfering with the trusts' ability to sell the shares and reinvest the  proceeds elsewhere. We find, however, that ownership of the shares was  transferred prior to the date of the breach, and as a result, the trusts have no  standing to sue for damages.


23
Delaware law governs our analysis. At the time of the breach, 13 January 1995,   8-313 of Delaware's Uniform Commercial Code ("U.C.C.") set forth the  requirements for when transfer of a security to a purchaser occurs. See  Del.Code. Ann. tit. 6,  8-313 (1995). A recipient by gift is a purchaser under  the Delaware U.C.C. See Del.Code. Ann. tit. 6,  1-201(32) (1995). Section 8-313  lists several ways that transfer may occur, depending on whether the security  being transferred is certificated or uncertificated. The securities held by  Duncan and Smick were certificated securities because they were represented by  instruments that specified Duncan and Smick as the owners and provided that  transfer could be registered on the books of the corporation. See R13-98-Exs.  R,S: see also Del.Code. Ann. tit. 6,  8-102(1)(a) (1995) (defining a  certificated security).


24
According to the U.C.C. provisions then in force, certificated securities were  deemed transferred to a purchaser only:


25
(a) At the time he or a person designated by him acquires possession of a  certificated security; ...


26
(c) At the time his financial intermediary acquires possession of a  certificated security specially endorsed to or issued in the name of the  purchaser;


27
(d) At the time a financial intermediary, not a clearing corporation, sends  him confirmation of the purchase and also by book entry or otherwise  identifies as belonging to the purchaser


28
(i) a specific certificated security in the financial intermediary's possession;


29
(ii) a quantity of securities that constitute or are part of a fungible bulk  of certificated securities in the financial intermediary's possession ...


30
Del.Code. Ann. tit. 6,  8-313(1) (1995).


31
Application of this statute is complicated by the fact that both Duncan and  Smick were trustees of their respective trusts. Certain facts, however, are  clear. Both provided their stock certificates to Alex. Brown with instructions  to transfer ownership to their respective trusts. Alex. Brown issued statements  indicating that it had transferred TheraTx stock from the individual donees to  the trust accounts, in December 1994 for Smick and January 1995 for Duncan.


32
Alex. Brown was the stockbroker for the trusts. We find that when Duncan and  Smick endorsed their stock certificates and provided them to Alex. Brown with  instructions to transfer the stock to the trusts, Alex. Brown acquired  possession of the certificated security on behalf of the trusts, thereby  satisfying  8- 313(1)(a). It is possible that, because Alex. Brown qualifies as  a "financial intermediary" as defined in  8-313(4), that other subsections of   8-313 were also satisfied. We express no opinion as to these other possible  methods of transfer as the requirements of  8-313(1)(a) were satisfied. We do  note, however, that while the transfers of the shares were not reflected on  TheraTx's books until after the breach,  8-313 imposes no such requirement on  the validity of a transfer. Indeed,  202 of Delaware's corporations code, which  controls over sections of the U.C.C., provides that restrictions on the  transfers of security "may be enforced against the holder of the restricted  security" or her successor, but do not provide for enforcement against the  corporation. Del.Code. Ann. tit. 8,  202(a) (1995). Duncan and Smick intended  to transfer their shares to charitable remainder trusts, and the records of  Alex. Brown reflect that those intentions were carried out. To allow Duncan and  Smick to enforce trading restrictions against themselves in order to collect  damages thwarts both their original intent to transfer their shares prior to the  date of the breach and the parties' contractual agreement that contract rights,  including remedies for breach, were not to be transferrable.

2.McCormick Shares

33
The district judge also determined that Smick and Duncan did not have standing  to recover for breach of the Agreement with respect to the McCormick shares  because the rights granted to PersonaCare shareholders in section 6.6 of the  Merger Agreement were not assignable. On appeal, the Duncan Group argues that,  because TheraTx recorded the transfer from McCormick to Duncan and Smick on its  stock register in October 1994 and subsequently reflected the transfer of  ownership from McCormick to Duncan and Smick in the Amended Shelf Registration  under which trading resumed on 30 June 1995, TheraTx acknowledged the rights of  Duncan and Smick to have the McCormick Shares included in the Shelf Registration  and should be estopped from asserting that Duncan and Smick did not have the  right granted by section 6.6 of the Agreement to have those shares registered.  In making this argument, the Duncan Group attributes TheraTx's failure to  include the McCormick shares in the names of Duncan and Smick, respectively, as  an oversight and mistake.


34
TheraTx counters that it was not obligated to register any shares of TheraTx  stock received by PersonaCare shareholders after the Agreement was executed.  Accordingly, TheraTx was not obligated to include the McCormick shares acquired  by Duncan and Smick in the Shelf Registration. Further, TheraTx asserts that the  crediting of the McCormick shares to Duncan and Smick in the Amended Shelf  Registration after the January 1995 breach does not estop it from denying that  Duncan and Smick have contractual rights with regard to the McCormick Shares.


35
We have determined that the rights of the PersonaCare stockholders were not  assignable under the clear terms of Section 6.6. Therefore, when McCormick  gifted a portion of his TheraTx stock to Duncan and Smick, McCormick's  contractual right for those shares to be included in the Shelf Registration was  not transferred to Duncan and Smick. Further, Duncan and Smick have failed to  demonstrate any conduct on the part of TheraTx which suggests that Duncan,  Smick, or any other person who received restricted shares of TheraTx stock after  the execution of the Agreement would be entitled to sell that stock under the  Shelf Registration under an estoppel theory. The 7 December 1994 letter from  TheraTx's attorney to PersonaCare stockholders explained that if the PersonaCare  stockholders chose to gift their TheraTx stock to another individual or entity,  the recipient would receive restricted stock and the recipient stockholder would  have to be listed in the Shelf Registration Prospectus in order to be able to  sell the gifted stock. The letter further requested that the PersonaCare  stockholders provide TheraTx a list of any potential gift recipients. The  letter, however, did not undertake any new obligation to include such gift  recipients in the Shelf Registration. Indeed, it specifically discussed the  possibility that trading under the Shelf Registration would be suspended.  Therefore, the Amended Shelf Registration's reflection of the gift could not have suggested to Duncan and Smick that they were entitled to trade the  McCormick shares under the initial Shelf Registration at the time the breach  occurred. See Wilson v. American Insurance Co., 209 A.2d 902, 903-904 (Del.1965)  (requiring lack of knowledge of truth and detrimental reliance to establish  estoppel). Therefore, we conclude that the district court correctly determined  that Duncan and Smick were not entitled to recover damages for the breach of  contract with regard to the McCormick shares.

C. Calculation of Damages

36
The district judge purported to calculate the damages of the Duncan Group using  a "modified conversion" analysis. Accordingly, he concluded that the Duncan  Group was entitled to recover the difference between the highest intermediate  value that the TheraTx stock reached during a reasonable time after trading was  suspended and the actual price they were ultimately paid for their stock. This  reasonable time period was the ten days the district judge calculated that it  would have taken the Duncan Group to dispose of their TheraTx stock without  adversely affecting the stock price, according to historical trading volumes. He  determined that the highest value reached by the TheraTx stock during this ten  day period was $19.75. The district judge then subtracted the actual price at  which the PersonaCare stockholders sold their TheraTx stock. He reasoned that it  was appropriate to subtract the actual price the PersonaCare shareholders  received for their TheraTx stock, rather than the average stock price during a  reasonable period of time after the suspension of trading under the Shelf  Registration was lifted, because the PersonaCare shareholders ultimately sold  their TheraTx stock for a higher price than that at which they could have sold  it during a reasonable period following the suspension of trading, and they were  " 'not entitled to be placed, because of [the] breach, in a position better than  that which [they] would have occupied had the contract been performed.' " R  16-130 at 5 (quoting Madison Fund, Inc. v. Charter Co., 427 F.Supp. 597, 608  (S.D.N.Y.1977) (applying Florida law)).


37
The Duncan Group argues that the district judge's reasoning was incorrect,  because, although they might have sold during the period that trading was  suspended under the Shelf Registration, they nevertheless took a risk and made a  new investment decision to hold their stock once the trading suspension was  lifted. TheraTx argues that, although Delaware courts have not addressed  specifically the proper method for calculating damages in a case involving  breach of a contract by suspension of trading under a Shelf Registration, the  district judge's analysis was consistent with general principles of Delaware  contract law. See American Gen'l Corp. v. Continental Airlines Corp., 622 A.2d  1, 8 (Del.Ch.1992) (finding the measure of damages is usually that which is  necessary to put the claimant in as good a position as he would have occupied if  the contract had been performed); E.I. DuPont de Nemours and Co. v. Pressman,  679 A.2d 436, 445 (Del.1996) (stating contract damages are awarded to compensate  the injured party and not to punish the breaching party).


38
Our review of Delaware law reveals no binding authority establishing a specific  method for measuring contract damages in circumstances similar to those  presented in this case. Thus, while we do not suggest that the district judge's  method of computing damages was inconsistent with Delaware law, we conclude that  this case presents an unsettled question of Delaware law. Therefore, because the  method of calculation of damages is dispositive of the claims in this case, and  because it raises an important issue of state law, we certify the following  question to the Supreme Court of Delaware, pursuant to Del. S.Ct. Rule 41:


39
WHAT IS THE PROPER MEASURE OF DAMAGES WHEN A DEFENDANT'S CONTRACTUAL    OBLIGATION TO CAUSE A SHELF REGISTRATION, UNDER WHICH PLAINTIFF IS ENTITLED TO    TRADE A RESTRICTED STOCK, TO REMAIN IN EFFECT FOR A SPECIFIED PERIOD OF TIME    IS BREACHED BY DEFENDANT'S TEMPORARY SUSPENSION OF PLAINTIFFS' ABILITY TO    TRADE THE RESTRICTED STOCK?


40
The phrasing of this certified question is not intended to limit the Delaware  Supreme Court's consideration of the various issues posed by this case. The  entire record and the briefs of the parties shall be transmitted to the Supreme  Court of Delaware to assist in its determination, should it accept our  certification.

III. CONCLUSION

41
Because we find that TheraTx breached its obligations under Section 6.6 of the  Agreement, and that Duncan and Smick have no standing to sue for damages for  shares received as gift from McCormick or transferred by them to charitable  remainder trusts, we AFFIRM in part and CERTIFY the question of the appropriate  method of calculating damages in this case to the Supreme Court of Delaware.



NOTES:


*
 Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, sitting  by designation.


1
 The Duncan Group consists of the following former PersonaCare shareholders and  trusts created by them: James W. Duncan, Jr.; Jean M. Duncan, as Co-Trustee of  the Emanuel Foundation and the Kyrios Foundation; Timothy S. Smick; Bobbi G.  Smick, as Co-Trustee of the Caleb Fund and the Joshua Fund; James F. McCormick;  Arthur W. Trump, Jr., Individually, and as Trustee of the David S. Hungerford,  Grantor Retained Annuity Trust # 1, and as Trustee of the David S. Hungerford,  Grantor Retained Annuity Trust # 2; Dr. David S. Hungerford; and Travers C.  Nelson.


2
 Section 6.6 reads as follows:
Warburg Shelf and Demand Registration. (a) Promptly (and in any event within 10  days) following the expiration of any lock-up agreement with the underwriters in  connection with the Initial Public Offering ... TheraTx shall effect a shelf  registration (the "Shelf Registration ") of all shares of TheraTx Common Stock  ... issued to the PersonaCare Stockholders in connection with the Merger.
...
TheraTx shall cause the Shelf Registration to remain in effect until two years  following the Effective Date.
The PersonaCare Stockholders' rights under this Section 6.6 shall not be  assignable and such rights hereunder shall terminate at such time as such  stockholder is entitled to sell all of the Shares held by such stockholder  without registration under the Securities Act.
R7-59, Ex. A at 47.


3
 The letter reads:
As you will recall, by letter dated December 7, 1994, we notified you of the  effective date of the shelf registration statement registering the shares issued  to you in connection with the acquisition of PersonaCare by TheraTx. At that  time, you were informed that TheraTx could find it necessary to suspend the use  of the registration statement from time to time due to events occurring at  TheraTx.
The purpose of this letter is to notify you that COMMENCING FRIDAY, JANUARY 13,  1995, your ability to use the shelf registration statement will be SUSPENDED  until further notice. We will notify you when you may once again commence  selling shares under the shelf registration.
The letter was signed by TheraTx Vice President and General Counsel Jonathan H.  Glenn. R7-59, Ex. L-1.


4
 The letter, from Laura M. Brower of Brobeck, Phleger & Harrison, reads in part: As you were notified in a letter from Jonathan H. Glenn, on January 12, 1995,  the shelf registration statement registering the shares issued to you in  connection with the acquisition of PersonaCare by TheraTx was temporarily  suspended. The purpose of this letter is to inform you that the shelf  registration will once again become effective commencing Friday, June 30, 1995  at 12:00 p.m., eastern time. Accordingly, beginning 12:00 p.m., eastern time,  June 30th you will be permitted to once again sell shares pursuant to the shelf  registration under the circumstances and in the manner described in the letter  of instructions sent to you on December 7, 1994 (copy attached). R7-59, Ex. L-2.


5
 We shall refer to the TheraTx stock transferred by McCormick to Duncan and  Smick, collectively as the McCormick Shares.


6
 The Duncan Group alleged in district court that TheraTx fraudulently or  negligently failed to disclose its plans for large acquisitions that could  result in a suspension of trading under the Shelf Registration. The district  court granted summary judgment for TheraTx on these claims, and the Duncan Group  has not appealed this decision. See R8-79-16-21.


