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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
| CRYSTALLEX INTERNATIONAL CORP., Plaintiff, v. BOLIVARIAN REPUBLIC OF VENEZUELA, Defendant. | Misc. No. 17-151-LPS |
At Wilmington this 17th day of July 2023, having reviewed the materials submitted by numerous creditors of the Republic of Venezuela or of PDVSA¹ (see, e.g., D.I. 564, 566-67, 569, 572-76, 585-88, 590-92, 594-97, 599-609, 611-12, 626-27, 629-30, 632, 634-37, 641-42; Misc. No. 19-79 D.I. 35, 38, 41, 48; Misc. No. 19-290 D.I. 154; Misc. No. 20-257 D.I. 95; Misc. No. 21-46 D.I. 72, 74-75; Misc. No. 21-481 D.I. 60-62, 64; Misc. No. 22-156 D.I. 34; Misc. No. 22-347 D.I. 22), by the Venezuela Parties themselves (see, e.g., D.I. 571, 589, 610, 631, 639), and by the Special Master (see, e.g., D.I. 593, 633), as well as the discussion at the June 26, 2023 hearing (see, e.g., D.I. 640 at 50, 69-71, 83-93, 105-09, 113-15, 139, 149, 152-55, 157-60, 174-75, 177, 182-85, 189-93) relating to the share certificate issue,
IT IS HEREBY ORDERED that:
1. By no later than July 24, 2023, PDVSA SHALL PROVIDE AND DEPOSIT WITH THE SPECIAL MASTER THE SHARE CERTIFICATE demonstrating PDVSA’s
¹ All capitalized terms have the same meaning given to them in the Sale Procedures Order. (See D.I. 481)
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ownership of 100% of the shares of PDVH, which the Special Master shall hold and keep safe until further order of the Court.
2. Should PDVSA determine, on or before July 24, 2023, it cannot comply with paragraph 1 of this Order, PDVSA shall so advise the Court by filing on the docket a letter, no later than July 24, 2023, indicating:
a. PDVSA has determined that the share certificate is “lost, stolen, or destroyed,”² within the meaning of Delaware law, 8 Del. C. §§ 167-68, and PDVSA requests that this Court order PDVH to immediately reissue a replacement share certificate; OR
b. PDVSA has determined that the share certificate is “lost, stolen, or destroyed,” within the meaning of Delaware law, 8 Del. C. §§ 167-68, and it will, no later than July 31, 2023, file an action in the Delaware Court of Chancery seeking an expedited order that PDVH immediately reissue a replacement share certificate – in this instance, PDVSA shall provide courtesy copies to the Court of all filings in any such Chancery action within 48 hours of their filing.
3. Should PDVSA fail to comply with paragraph 1 and also fail to pursue option 2.a and fail to pursue option 2.b described above, the Court will solicit the views of the Sale Process Parties and others as to appropriate sanctions it should impose.
The Court’s decision to give PDVSA, as the owner of the PDVH shares, the first opportunity (for a very limited time) to determine how to proceed should not be construed as an indication the Court believes either the Venezuela sanctions regime or Delaware law poses an impediment to this Court ordering reissuance of the PDVH share certificate. Instead, the Court is proceeding in this manner in an abundance of caution, recognizing the respect owed to a
² The Venezuela Parties have previously suggested this has occurred. (See, e.g., D.I. 571 at 2 (“Delaware law provides that the attachment is not laid until the officer executing the writ actually seizes the physical share certificate, which neither PDVH nor any other of the Venezuela Parties possesses. Instead, that certificate presumably is in the hands of the illegitimate and independent Maduro regime.”); D.I. 610 at 5 (“[T]he certificate is out somewhere in the world . . . .”))
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foreign sovereign nation and its instrumentalities, and in the interests of comity between state and federal courts.
The Court anticipates and intends that this Order will not materially impact the launch or progress of the Crystallex sale process. In that regard, should the Special Master, any Sale Process Party, or any other creditor of Venezuela or PDVSA believe that PDVSA’s actions to comply with this Order and produce the share certificate are not proceeding with the necessary speed, or are otherwise unsatisfactory, they may, at any time on or after August 7, 2023, move for reconsideration of this Order, including by asking this Court to order reissuance of the share certificate.
Signature
HONORABLE LEONARD P. STARK
UNITED STATES DISTRICT COURT