Vale S.A F-3, filed Apr 14, 2023
Vale S.A. (VALE)
| As filed with the Securities and Exchange Commission on April 13, 2023 | ||
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Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form F-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
| Vale S.A. | Vale Overseas Limited |
(Exact name of each Registrant as specified in its charter)
| The Federative Republic of Brazil | Cayman Islands |
| (State or other jurisdiction of incorporation or organization) | |
| Not Applicable | Not Applicable |
| (I.R.S. employer identification number) | |
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Praia de Botafogo 186 - offices 1101, 1701 and 1801 - Botafogo 22250-145 Rio de Janeiro, RJ, Brazil +55-21-3485-5000 |
Cogency Global Inc. 122 East 42nd Street, 18th Floor, New York, NY 10168 (800) 221-0102 |
| (Address and telephone number of Registrants’ principal executive offices) |
(Name, address and telephone number of agent for service) |
Copy to:
Jonathan Mendes de Oliveira
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
(212) 225-2000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement, as determined in light of market conditions.
If only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act of 1933, check the following box. [_]
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [_]
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933. Emerging growth company [_]
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. [_]
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to Section 8(a) of the Act, may determine.
PROSPECTUS
Vale S.A.
Debt Securities and Guarantees
Vale Overseas Limited
Guaranteed Debt Securities
Vale S.A. may offer debt securities from time to time, and Vale Overseas Limited may offer debt securities guaranteed by Vale S.A. from time to time. A prospectus supplement will set forth the specific terms of the securities, the offering price and the specific manner in which they may be offered.
We may sell these debt securities directly or to or through underwriters or dealers, and also to other purchasers or through agents. The names of any underwriters or agents will be set forth in the prospectus supplement.
Neither the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
April 13, 2023
Table of Contents
We are responsible for the information contained in this prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein and therein. We have not authorized any person to give you any other information, and we take no responsibility for any other information that others may give you. This document may only be used where it is legal to sell these securities. You should not assume that the information contained in this prospectus, any accompanying prospectus supplement and the documents incorporated by reference is accurate as of any date other than their respective dates. Our business, financial condition, results of operations and prospects may have changed since those dates. We are not making an offer of these securities in any state where the offer is not permitted.
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This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, which we refer to as the SEC, using a “shelf” registration process. Under this shelf process, Vale may offer debt securities, and Vale Overseas may offer debt securities guaranteed by Vale, in one or more offerings, up to the amount registered pursuant to the Registration Statement.
This prospectus provides you only with a general description of the debt securities and guarantees that we may offer. Each time we offer debt securities pursuant to this prospectus, we will attach a prospectus supplement to the front of this prospectus that will contain specific information about the particular offering and the terms of those debt securities. We may also add, update or change other information contained in this prospectus by means of a prospectus supplement or by incorporating by reference information we file with the SEC. The registration statement on file with the SEC includes exhibits that provide more detail on the matters discussed in this prospectus. Before you invest in any debt securities offered by this prospectus, you should read this prospectus, any related prospectus supplements and the related exhibits filed with the SEC, together with the additional information described under the heading “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference.”
In this prospectus, unless otherwise specified or the context otherwise requires, references to “Vale” are to Vale S.A. and its consolidated subsidiaries. References to “Vale Overseas” are to Vale Overseas Limited. Terms such as “we,” “us” and “our” generally refer to one or both of Vale and Vale Overseas, as the context may require.
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ENFORCEMENT OF CIVIL LIABILITIES
Brazil
A final conclusive judgment for the payment of money rendered by any New York State or federal court sitting in New York City in respect of the securities would be recognized in the courts of Brazil and such courts would enforce such judgment without any retrial or reexamination of the merits of the original action only if such judgment has been ratified by the Brazilian Superior Court of Justice (Superior Tribunal de Justiça). This ratification is available only if the judgment:
| · | is for payment of a certain sum of money; |
| · | fulfills all formalities required for its enforceability under the laws of the State of New York; |
| · | was issued by a competent court either after due service of process on the parties, which service of process, if made in Brazil, must comply with Brazilian law, or after sufficient evidence of the parties’ absence has been given, as established pursuant to applicable law; |
| · | is not subject to appeal; |
| · | does not conflict with a final and unappealable decision issued by a Brazilian court; |
| · | has been authenticated by a Brazilian consulate in the State of New York or is duly apostilled in accordance with the Convention Abolishing the Requirement of Legalization for Foreign Public Documents; |
| · | has been translated into Portuguese by a certified sworn translator, except if exempted by an international treaty entered into by Brazil; |
| · | does not cover matters subject to the exclusive jurisdiction of the Brazilian courts; and |
| · | is not against Brazilian public policy, good morals or national sovereignty. |
The following considerations also bear on the enforcement of civil liabilities in Brazil.
| · | Civil actions may be brought before Brazilian courts in connection with this prospectus supplement based on the federal securities laws of the United States, and Brazilian courts may enforce such liabilities in such actions against Vale (provided that the relevant provisions of the federal securities laws of the United States do not contravene Brazilian public policy, good morals or national sovereignty and provided further that Brazilian courts can assert jurisdiction over the particular action). |
| · | The ability of a judgment creditor to satisfy a judgment by attaching certain assets of the defendant is limited by Brazilian law. In addition, a Brazilian or foreign plaintiff who resides abroad or is abroad during the course of a suit in Brazil must post a bond to cover the legal fees and court expenses of the defendant, unless there are real estate assets in Brazil to assure payment thereof, except in case of execution actions or counterclaims as established under the first paragraph of Article 83 of the Brazilian Code of Civil Procedure. |
Notwithstanding the foregoing, no assurance can be given that ratification would be obtained, that the process described above could be conducted in a timely manner or that a Brazilian court would enforce a monetary judgment for violation of the U.S. securities laws with respect to the securities.
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Cayman Islands
Vale Overseas has been advised by its Cayman Islands counsel, Walkers (Cayman) LLP, that although there is no statutory enforcement in the Cayman Islands of judgments obtained in the United States, the courts of the Cayman Islands will, based on the principle that a judgment by a competent foreign court imposes upon the judgment debtor an obligation to pay the sum for which judgment has been given, recognize and enforce a foreign judgment of a court having jurisdiction over a defendant according to Cayman Islands conflict of law rules, by way of fresh proceedings brought in the Cayman Islands suing for the amounts due pursuant to the foreign judgment. To be so enforced the foreign judgment must be final and conclusive and for a liquidated sum (or, in certain circumstances, for in personam non-money relief) and not in respect of taxes or a fine or penalty or similar fiscal or revenue obligations or of a kind inconsistent with a Cayman Islands judgment in respect of the same matters or obtained in a manner, and is not of a kind the enforcement of which is, contrary to natural justice, statute or the public policy of the Cayman Islands. There is doubt, however, as to whether the courts of the Cayman Islands will:
| · | recognize or enforce judgments of U.S. courts based on the civil liability provisions of the securities laws of the United States or any state thereof; or |
| · | in original actions brought in the Cayman Islands, impose liabilities upon the civil liability provisions of the securities laws of the United States or any state thereof, |
in each case, on the grounds that such provisions are penal in nature.
A Cayman Islands court may stay proceedings if concurrent proceedings are being brought elsewhere.
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Some of the information contained or incorporated by reference in this prospectus and the accompanying prospectus supplement may constitute forward-looking statements. Many of those forward-looking statements can be identified by the use of forward-looking words such as “anticipate,” “believe,” “could,” “expect,” “should,” “plan,” “intend,” “estimate”, “target,”, “ambition,” and “potential,” among others. Those statements appear in a number of places and include statements regarding our intent, belief or current expectations with respect to:
| · | trends in commodity prices, supply and demand for commodities; |
| · | the future impact of competition and regulation; |
| · | the exploration of mineral reserves and resources and development of mining facilities; |
| · | the depletion and exhaustion of mines and mineral reserves and resources; |
| · | the impact of the collapse of the tailings dam in Brumadinho in 2019, the collapse of Samarco’s tailings dam in 2015, and related remediation measures on our operations, cash flows and financial position; |
| · | the implementation of our dam de-characterization plan; |
| · | the outcome of the various investigations, regulatory, governmental, uncertain tax treatments and legal proceedings in which we are involved; |
| · | the impact of the ongoing war in Ukraine and the economic sanctions imposed on Russia, and their impact on the global economy, which are highly uncertain and difficult to predict; |
| · | our direction and future operations; |
| · | the implementation of our financing strategy and capital expenditure plans; |
| · | the payment of dividends or interest on shareholders’ equity; |
| · | compliance with financial covenants; |
| · | industry trends, including the direction of prices and expected levels of supply and demand; |
| · | the implementation of our principal operating strategies, including our potential participation in acquisition, divestiture or joint venture transactions or other investment opportunities; |
| · | our ability to comply with our ESG targets and commitments; |
| · | other factors or trends affecting our financial condition or results of operations; and |
| · | the factors discussed in other documents incorporated by reference in this prospectus. |
We caution you that forward-looking statements are not guarantees of future performance and involve risks and uncertainties. Actual results may differ materially from those in forward-looking statements as a result of various factors. These risks and uncertainties include factors relating to (a) economic, political and social issues in the countries in which we operate, (b) the global economy, (c) commodity prices, (d) financial and capital markets, (e) the mining and metals businesses, which are cyclical in nature, and their dependence upon global industrial production, which is also cyclical, (f) regulation and taxation, (g) operational incidents or accidents, and (h) the high degree of global competition in the markets in which we operate. For additional information on some factors that
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could cause our actual results to differ from expectations reflected in forward-looking statements, please see “Risk Factors” in our SEC reports incorporated by reference in this prospectus. Forward-looking statements speak only as of the date they are made, and we do not undertake any obligation to update them in light of new information or future developments. All forward-looking statements attributed to us or a person acting on our behalf are expressly qualified in their entirety by this cautionary statement, and you should not place undue reliance on any forward-looking statement included in this prospectus or any accompanying prospectus supplement.
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We are one of the largest metals and mining companies in the world, based on market capitalization, and one of the world’s largest producers of iron ore and nickel. We also produce iron ore pellets and copper. Our nickel and copper concentrates contain by-products of platinum group metals (PGMs), gold, silver and cobalt. We are engaged in greenfield mineral exploration in six countries. We operate large logistics systems in Brazil and other regions in the world, including railroads, maritime terminals and ports, which are integrated with our mining operations. In addition, we have distribution centers to support the delivery of iron ore worldwide. Directly and through associates and joint ventures, we also have investments in energy.
Vale is a stock corporation, or sociedade por ações, that was organized on January 11, 1943 under the laws of the Federative Republic of Brazil for an unlimited period of time. Vale’s head office is located at Praia de Botafogo 186, offices 1101, 1701 and 1801, Botafogo, 22250-145, Rio de Janeiro, RJ, Brazil. Its telephone number is +55-21-3485-5000.
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Vale Overseas is a finance company wholly owned by Vale. Vale Overseas’ business is to issue debt securities to finance the activities of Vale and Vale’s subsidiaries and affiliates. It has no other operations and no employees.
Vale Overseas was incorporated as a Cayman Islands exempted company with limited liability on April 3, 2001, and is registered with the Registrar of Companies in the Cayman Islands under registration number 109351. Vale Overseas was incorporated for an indefinite period of time. Its registered office is at Intertrust Corporate Services (Cayman) Limited, One Nexus Way, Camana Bay, Grand Cayman KY1-9005, Cayman Islands, and its principal executive offices are located at Praia de Botafogo 186, offices 1101, 1701 and 1801, Botafogo, 22250-145, Rio de Janeiro, RJ, Brazil. Its telephone number is +55-21-3485-5000.
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Vale
Unless otherwise indicated in an accompanying prospectus supplement, Vale intends to use the net proceeds from the sale of the debt securities for general corporate purposes.
Vale Overseas
Unless otherwise indicated in an accompanying prospectus supplement, Vale Overseas intends to on-lend the net proceeds from the sale of the debt securities to Vale or Vale’s subsidiaries and affiliates.
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LEGAL OWNERSHIP OF DEBT SECURITIES
In this prospectus and in any prospectus supplement, when we refer to the “holders” of debt securities as being entitled to specified rights or payments, we mean only the actual legal holders of the debt securities. While you will be the holder if you hold a security registered in your name, more often than not the registered holder will actually be either a broker, bank, other financial institution or, in the case of a global security, a depositary. Our obligations, as well as the obligations of the trustee, any registrar, any depositary and any third parties employed by us or the other entities listed above, run only to persons who are registered as holders of our debt securities, except as may be specifically provided for in a contract governing the debt securities. For example, once we make a payment to the registered holder, we have no further responsibility for the payment even if that registered holder is legally required to pass the payment along to you as a street name customer but does not do so.
Street Name and Other Indirect Holders
Holding debt securities in accounts with banks or brokers is called holding in “street name.” If you hold our debt securities in street name, we will recognize only the bank or broker, or the financial institution that the bank or broker uses to hold the debt securities, as a holder. These intermediary banks, brokers, other financial institutions and depositaries pass along to you, as an indirect holder, principal, interest, dividends and other payments, if any, on the debt securities, either because they agree to do so in their customer agreements or because they are legally required to do so. This means that if you are an indirect holder, you will need to coordinate with the institution through which you hold your interest in a security in order to determine how the provisions involving holders described in this prospectus and any prospectus supplement will actually apply to you. For example, if the debt security in which you hold a beneficial interest in street name can be repaid at the option of the holder, you cannot redeem it yourself by following the procedures described in the prospectus supplement relating to that security. Instead, you would need to cause the institution through which you hold your interest to take those actions on your behalf. Your institution may have procedures and deadlines different from or additional to those described in the applicable prospectus supplement.
If you hold our debt securities in street name or through other indirect means, you should check with the institution through which you hold your interest in a security to find out, among other things:
| · | how it handles payments and notices with respect to the debt securities; |
| · | whether it imposes fees or charges; |
| · | how it handles voting, if applicable; |
| · | how and when you should notify it to exercise on your behalf any rights or options that may exist under the debt securities; |
| · | whether and how you can instruct it to send you debt securities registered in your own name so you can be a direct holder; and |
| · | how it would pursue rights under the debt securities if there were a default or other event triggering the need for holders to act to protect their interests. |
Global Securities
A global security is a special type of indirectly held security. If we issue debt securities in the form of global securities, the ultimate beneficial owners can only be indirect holders. We do this by requiring that the global security be registered in the name of a financial institution we select and by requiring that the debt securities included in the global security not be transferred to the name of any other direct holder unless the special circumstances described below occur. The financial institution that acts as the sole direct holder of the global security is called the “depositary.” Any person wishing to own a security issued in global form must do so indirectly through an account with a broker, bank or other financial institution that in turn has an account with the depositary. The prospectus supplement will indicate whether the debt securities will be issued only as global securities.
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As an indirect holder, your rights relating to a global security will be governed by the account rules of your financial institution and of the depositary, as well as general laws relating to securities transfers. We will not recognize you as a holder of the debt securities and instead will deal only with the depositary that holds the global security.
You should be aware that if our debt securities are issued only in the form of global securities:
| · | You cannot have the debt securities registered in your own name; |
| · | You cannot receive physical certificates for your interest in the debt securities; |
| · | You will be a street name holder and must look to your own bank or broker for payments on the debt securities and protection of your legal rights relating to the debt securities; |
| · | You may not be able to sell interests in the debt securities to some insurance companies and other institutions that are required by law to own their debt securities in the form of physical certificates; |
| · | The depositary’s policies will govern payments, dividends, transfers, exchange and other matters relating to your interest in the global security. We, the trustee and any registrar have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in the global security. We, the trustee and any registrar also do not supervise the depositary in any way; and |
| · | The depositary will require that interests in a global security be purchased or sold within its system using same-day funds for settlement. |
In a few special situations described below, a global security representing our debt securities will terminate and interests in it will be exchanged for physical certificates representing the debt securities. After that exchange, the choice of whether to hold debt securities directly or in street name will be up to you. You must consult your bank or broker to find out how to have your interests in the debt securities transferred to your name, so that you will be a direct holder.
Unless we specify otherwise in a prospectus supplement, the special situations in which a global security representing our debt securities will terminate are:
| · | the depositary has notified us that it is unwilling or unable to continue as depositary for such global security or the depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, at a time when such depositary is required to be so registered in order to act as depositary, and, in each case, we do not or cannot appoint a successor depositary within 90 days; or |
| · | Vale, or Vale Overseas, as applicable, decides in its sole discretion to allow some or all book-entry securities to be exchangeable for definitive securities in registered form. |
A prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of debt securities covered by such prospectus supplement. When a global security terminates, the depositary (and not us, the trustee or any registrar) is responsible for deciding what institutions will be the initial direct holders.
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DESCRIPTION OF THE DEBT SECURITIES
The following briefly summarizes the material provisions of the debt securities and the indentures that will govern the debt securities, other than pricing and related terms and other specifications that will be disclosed in a prospectus supplement. You should read the more detailed provisions of the applicable indenture, including the defined terms, for provisions that may be important to you. You should also read the particular terms of your series of debt securities, which will be described in more detail in a prospectus supplement. All references to Vale in this section refer to Vale S.A., and not to its consolidated subsidiaries.
Indentures
Any debt securities and guarantees that we issue will be governed by an indenture. The trustee under the indenture has two main roles:
| · | First, the trustee can enforce your rights against Vale and Vale Overseas if Vale or Vale Overseas defaults. There are some limitations on the extent to which the trustee acts on your behalf, described below under “—Events of Default.” |
| · | Second, the trustee performs administrative duties for us, such as sending principal and interest payments to you, transferring your debt securities to a new buyer if you sell and sending notices to you. |
Vale will issue debt securities under the Indenture dated as of August 4, 2021 between Vale, as issuer, and The Bank of New York Mellon, as trustee, which we refer to as the Vale indenture. Vale Overseas will issue debt securities guaranteed by Vale under the Amended and Restated Indenture dated as of August 4, 2021 among Vale Overseas, as issuer, Vale, as guarantor, and The Bank of New York Mellon, as trustee, which we refer to as the Vale Overseas indenture.
The indentures and their associated documents contain the full legal text of the matters described in this section. We have agreed in each indenture that New York law governs the indenture and the debt securities. We have filed a copy of the Vale indenture and the Vale Overseas indenture with the SEC as exhibits to our registration statement. We have consented in each indenture to the non-exclusive jurisdiction of any U.S. federal and state courts sitting in the borough of Manhattan in the City of New York. (Sections 1.12 and 1.14)
Types of Debt Securities
This section summarizes material terms of the debt securities that are common to all series and to both the Vale and Vale Overseas indentures, unless otherwise indicated in this section or in the prospectus supplement relating to a particular series.
Because this section is a summary, it does not describe every aspect of the debt securities. This summary is subject to and qualified in its entirety by reference to all the provisions of the indentures, including the definition of various terms used in the indentures. For example, we describe the meanings for only the more important terms that have been given special meanings in the indentures. We also include references in parentheses to some sections of the indentures. Whenever we refer to particular sections or defined terms of the indentures in this prospectus or in any prospectus supplement, those sections or defined terms are incorporated by reference herein or in such prospectus supplement.
We may issue original issue discount securities, which are debt securities that are offered and sold at a substantial discount to their stated principal amount. We may also issue indexed securities or securities denominated in currencies other than the U.S. dollar, currency units or composite currencies, as described in more detail in the prospectus supplement relating to any such debt securities. We will describe the U.S. federal income tax consequences and any other special considerations applicable to original issue discount, indexed or foreign currency debt securities in the applicable prospectus supplement.
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In addition, the material financial, legal and other terms particular to a series of debt securities will be described in the prospectus supplement relating to that series. Those terms may vary from the terms described here. Accordingly, this summary also is subject to and qualified by reference to the description of the terms of the series described in the applicable prospectus supplement.
In addition, the prospectus supplement will state whether we will list the debt securities of the series on any stock exchanges and, if so, which ones.
Form, Exchange and Transfer
The debt securities will be issued, unless otherwise indicated in the applicable prospectus supplement, in any integral multiples of US$1,000 thereof. (Section 3.2)
You may have your debt securities broken into more debt securities of smaller authorized denominations or combined into fewer debt securities of larger authorized denominations, as long as the total principal amount is not changed. This is called an exchange. (Section 3.4)
You may exchange or transfer your registered debt securities at the office of the trustee. The trustee acts as our agent for registering debt securities in the names of holders and transferring registered debt securities. The entity that maintains the list of registered holders is called the “security registrar.” It will also register transfers of the registered debt securities. (Sections 3.4 and 10.2)
You will not be required to pay a service charge for any registration of transfer or exchange of the debt securities, but you may be required to pay any tax or other governmental charge associated with the registration of transfer or exchange. The registration of transfer or exchange of a registered debt security will only be made if you have duly endorsed the debt security or provided the security registrar with a written instrument of transfer satisfactory in form to the security registrar. (Section 3.4)
Payment and Paying Agents
If your debt securities are in registered form, we will pay interest to you if you are listed in the trustee’s records as a direct holder at the close of business on a particular day in advance of each due date for interest, even if you no longer own the security on the interest due date. That particular day is called the “regular record date” and will be stated in the prospectus supplement. (Sections 3.6 and 3.1.5)
We will pay interest, principal, additional amounts and any other money due on global registered debt securities pursuant to the applicable procedures of the depositary or, if the debt securities are not in global form, at our office or agency maintained for that purpose in New York City. We may also choose to pay interest by mailing checks. We may also arrange for additional payment offices, and we may cancel or change our use of these offices, including the trustee’s corporate trust office. These offices are called “paying agents.” We may also choose to act as our own paying agent. (Sections 2.2, 10.2 and 10.3)
Regardless of who acts as paying agent, all money that we pay as principal, premium or interest to a paying agent, or then held by us in trust, that remains unclaimed at the end of two years after the amount is due to a direct holder will be repaid to us or (if then held in trust) discharged from trust. After that two-year period, direct holders may look only to us for payment and not to the trustee, any other paying agent or anyone else. (Section 10.3)
Street name and other indirect holders should consult their banks or brokers for information on how they will receive payments.
Notices
We and the trustee will send notices only to direct holders, using their addresses as listed in the trustee’s records. (Section 1.6)
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Modification and Waiver
Each indenture provides several categories of changes that can be made to the indenture and the debt securities. Such changes may or may not require the consent of the holders, as described below. A supplemental indenture will be prepared if holder approval is required.
Changes Requiring Each Holder’s Approval
Each indenture provides that there are changes to the indenture that cannot be made without the approval of each holder of the outstanding debt securities affected thereby. Those types of changes are:
| · | a change in the stated maturity of any principal of, or any installment of principal of or interest payment on the debt securities; |
| · | a reduction in the principal amount, the interest rate, the redemption price for the debt securities or the principal amount that would be due and payable upon acceleration; |
| · | a change in the obligation to pay additional amounts; |
| · | a change in the currency of any payment on the debt securities; |
| · | a change in the place of any payment on the debt securities; |
| · | an impairment of the holder’s right to sue for payment of any amount due on its securities; |
| · | a change in the terms of payment from, or control over, or release or reduction of any collateral or security interest to secure the payment of principal, interest or premium, if any, under any debt security; |
| · | a reduction in the percentage in principal amount of the outstanding debt securities needed to change the indenture or the debt securities; |
| · | a reduction in the percentage in principal amount of the outstanding debt securities needed to waive compliance with the indenture or to waive defaults; and |
| · | a modification of the sections of the indenture relating to supplemental indentures, waiver with the consent of holders or waiver of past defaults, except to increase the percentage of holders required to make a revision or to provide that certain other provisions of the indenture cannot be modified or waived without the approval of each holder of the debt securities. (Section 9.2) |
Changes Not Requiring Holders’ Approval
Each indenture provides that some changes do not require any approval by holders of outstanding debt securities under that indenture. This type of change includes clarifications of ambiguities, omissions, defects and inconsistencies, changes to conform the provisions contained in a relevant indenture to the description of debt securities contained in this prospectus or an applicable prospectus supplement, amendments to evidence the substitution of Vale Overseas as issuer of any series of debt securities, as described under “—Substitution of Vale Overseas as issuer,” and amendments, supplements and other changes that would not adversely affect the holders of outstanding debt securities under the indenture in any material respect, such as adding covenants, additional events of default or successor trustees. (Section 9.1)
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Changes Requiring Majority Approval
Each indenture provides that other changes to the indenture and the outstanding debt securities under the indenture and any waiver of any provision of the indenture must be approved by the holders of a majority in principal amount of each series of debt securities affected by the change or waiver. The required approval must be given by written consent. (Section 9.2)
Each indenture provides that the same majority approval would be required for Vale or Vale Overseas to obtain a waiver of any of its covenants in the applicable indenture. The covenants of Vale and Vale Overseas in each indenture include the promises Vale and Vale Overseas make about merging and creating liens on their assets, which are described below under “—Certain Covenants—Mergers and Similar Transactions” and “—Certain Covenants—Limitation on Liens.” If the holders approve a waiver of a covenant, Vale and Vale Overseas will not have to comply with that covenant. The holders, however, cannot approve a waiver of any provision in the debt securities or the indentures, as it affects any security, that Vale and Vale Overseas cannot change without the approval of the holder of that security as described above in “—Changes Requiring Each Holder’s Approval,” unless that holder approves the waiver. (Section 9.2)
Voting Mechanics
Debt securities will not be considered outstanding, and therefore will not be eligible to vote, if we have deposited or set aside in trust money for their payment, repurchase or redemption. Debt securities held by Vale Overseas, Vale or their affiliates are not considered outstanding. (Section 1.1)
Vale or Vale Overseas will generally be entitled to set any day as a record date for the purposes of determining the holders of outstanding debt securities that are entitled to vote or take other action under the applicable indenture. In limited circumstances, the trustee, and not Vale or Vale Overseas, will be entitled to set a record date for action by holders. If a record date is set for a vote or other action to be taken by holders of a particular series, that vote or action may be taken only by persons who are holders of outstanding debt securities of that series on the record date and must be taken within 180 days following the record date or another period that we or the trustee, as applicable, may specify. This period may be shortened or lengthened (but not beyond 180 days). (Sections 1.4.5, 1.4.6 and 1.4.7)
Street name and other indirect holders should consult their banks or brokers for information on how approval may be granted if we seek to change the indenture or the debt securities or request a waiver.
Redemption
Unless otherwise indicated in the applicable prospectus supplement, your debt security will not be entitled to the benefit of any sinking fund; that is, we will not deposit money on a regular basis into any separate custodial account to repay your debt securities. In addition, other than as set forth in “—Optional Tax Redemption” below, unless otherwise specified in the applicable prospectus supplement, we will not be entitled to redeem your debt security before its stated maturity. (Section 11.1.1)
If the applicable prospectus supplement specifies a redemption date, it will also specify one or more redemption prices, which may be expressed as a percentage of the principal amount of your debt security or by reference to one or more formula used to determine the redemption price. It may also specify one or more redemption periods during which the redemption prices relating to a redemption of debt securities during those periods will apply.
If the applicable prospectus supplement specifies a redemption commencement date, we may redeem your debt security at our option at any time on or after that date. If we redeem your debt security, we will do so at the specified redemption price, together with interest accrued to the redemption date. If different prices are specified for different redemption periods, the price we pay will be the price that applies to the redemption period during which your debt security is redeemed. If less than all of the debt securities are redeemed, the trustee will authenticate and deliver to the holder of such debt securities without service charge, a new debt security or securities of the same series and of like tenor, of any authorized denomination as requested by such holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the debt security so surrendered. If less than all of the debt securities are redeemed, the debt securities to be redeemed will be selected in accordance with the applicable procedures of the depositary, or in the case of certificated debt securities by lot or, pro rata, or in accordance with the applicable procedures. (Section 11.5)
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In the event that we exercise an option to redeem any debt security, we will give to the trustee and the holder written notice of the principal amount of the debt security to be redeemed, not less than 30 days nor more than 60 days before the applicable redemption date. We will give the notice in the manner described above under “—Notices.” (Section 11.2)
Subject to any restrictions described in the prospectus supplement, we or our affiliates may purchase debt securities from investors who are willing to sell from time to time, either in the open market at prevailing prices or in private transactions at negotiated prices. Debt securities that we or they purchase may, in our discretion, be held, resold or canceled.
Optional Tax Redemption
Unless otherwise indicated in a prospectus supplement, we will have the option to redeem the debt securities in whole (but not in part) if, (i) as a result of a change in or amendment to any laws (or any rules or regulations thereunder) or the official interpretation, administration or application of any laws, rules or regulations, (a) in the case of securities issued under the Vale indenture, we are required to pay additional amounts, as described below under “—Payment of Additional Amounts,” in excess of those attributable to Brazilian withholding tax on the basis of a statutory rate of 15%, or (b) in the case of securities issued under the Vale Overseas indenture, we are required to pay any additional amounts, as described below under “—Payment of Additional Amounts,” and (ii) the obligation described in items (a) or (b) of this paragraph cannot be avoided by Vale, Vale Overseas or their successors, as applicable, after taking measures that Vale, Vale Overseas or their successors, as applicable, considers reasonable to avoid it. This applies only in the case of changes or amendments that occur on or after the date specified in the prospectus supplement for the applicable series of debt securities. (Section 11.6)
If the debt securities are redeemed, the redemption price for the debt securities (other than original issue discount debt securities) will be equal to the principal amount of the debt securities being redeemed and any applicable premium plus accrued interest and any additional amounts due on the date fixed for redemption. The redemption price for original issue discount debt securities will be specified in the prospectus supplement for such debt securities. Furthermore, we must give you between 30 and 60 days’ notice before redeeming the debt securities. No notice may be given earlier than 90 days prior to the earliest date on which we, but for such redemption, would be obligated to pay such additional amounts, and the obligation to pay such additional amounts must remain in effect at the time notice is given. (Section 11.6)
Payment of Additional Amounts
Each indenture provides that all payments in respect of the debt securities issued thereunder will be made without withholding or deduction for any present or future taxes, duties, assessments, or other governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of Brazil, the Cayman Islands (in the case of debt securities issued under the Vale Overseas indenture), a successor jurisdiction or any authority therein or thereof having power to tax, unless Vale, Vale Overseas or their successors, as applicable, is compelled by law to deduct or withhold such taxes, duties, assessments or governmental charges. In such event, Vale, Vale Overseas or their successors, as applicable, will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts as may be necessary to ensure that the net amounts receivable by holders of debt securities after such withholding or deduction shall equal the respective amounts of principal, premium and interest which would have been receivable in respect of the debt securities in the absence of such withholding or deduction. Notwithstanding the foregoing, neither Vale nor Vale Overseas will have to pay additional amounts:
| · | to, or to a third party on behalf of, a holder who is liable for such taxes, duties, assessments or governmental charges in respect of such debt security by reason of his having some connection with Brazil, the Cayman Islands (in the case of debt securities issued under the Vale Overseas indenture) or a successor jurisdiction, other than the mere holding of the debt security and the receipt of payments with respect to the debt security; |
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| · | to, or to a third party on behalf of, a holder who is liable for such taxes, duties, assessments or other governmental charges by reason of such holder’s failure to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with Brazil, the Cayman Islands (in the case of debt securities issued under the Vale Overseas indenture) or a successor jurisdiction or applicable political subdivision or authority thereof or therein having power to tax, of such holder, if compliance is required by such jurisdiction, or any political subdivision or authority thereof or therein having power to tax, as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and Vale or Vale Overseas, as applicable, has given the holders at least 30 days’ notice that holders will be required to provide such certification, identification or other requirement; |
| · | in respect of any such taxes, duties, assessments or other governmental charges with respect to debt securities surrendered (if surrender is required) more than 30 days after the Relevant Date except to the extent that the holder of such debt security would have been entitled to such additional amounts on surrender of such debt security for payment on the last day of such period of 30 days; |
| · | in respect of any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or governmental charge imposed with respect to the debt security; |
| · | in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal of or interest on the debt security or by direct payment by Vale or Vale Overseas in respect of claims made against Vale or Vale Overseas; |
| · | in respect of any taxes, duties, assessments or other governmental charges imposed under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended as of the issue date (or any amended or successor version that is substantively comparable) and any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the U.S. Internal Revenue Code, any intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any law, regulation or practice adopted pursuant to any such intergovernmental agreement; or |
| · | in respect of any combination of the above. (Section 10.7.1) |
The prospectus supplement relating to the debt securities may describe additional circumstances in which we would not be required to pay additional amounts. (Section 3.1)
For purposes of the provisions described above, “Relevant Date” means whichever is the later of (i) the date on which such payment becomes due and payable or (ii) the date on which payment thereof is duly provided for and notice thereof given to holders. The debt securities are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above, neither Vale Overseas nor Vale shall be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein. (Section 10.7.1)
In the event that additional amounts actually paid with respect to the debt securities described above are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such debt securities, and as a result such holder is entitled to claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such debt securities, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to Vale or Vale Overseas, as the case may be. (Section 10.7.4)
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Any reference in this prospectus, the indenture or the debt securities to principal, premium or interest in respect of the debt securities or the guarantees by Vale Overseas or Vale, as applicable, will be deemed to include any additional amount, unless the context requires otherwise, that may be payable in respect of such principal, premium or interest. (Section 10.7.5)
Certain Covenants
Mergers and Similar Transactions
Unless otherwise specified in the applicable prospectus supplement, Vale and Vale Overseas will each covenant that they will not, without the consent of the holders of a majority in aggregate principal amount of the debt securities outstanding under the applicable indenture, consolidate with or merge into any other corporation or convey or transfer all or substantially all of its properties and assets to any other person, unless:
| · | the corporation formed by such consolidation or into which Vale or Vale Overseas is merged or the person which acquires by conveyance or transfer all or substantially all of the properties and assets of Vale or Vale Overseas, which we refer to as the successor corporation, will expressly assume the due and punctual payment of the principal of and interest on all the debt securities issued under the applicable indenture and all other obligations of Vale or Vale Overseas under the applicable indenture and the debt securities issued under that indenture; |
| · | immediately after giving effect to such transaction, no event of default with respect to any security issued under the applicable indenture will have occurred and be continuing; |
| · | Vale and Vale Overseas, as applicable, have delivered to the trustee under the applicable indenture (i) a certificate signed by, in the case of Vale, two executive officers of Vale and, in the case of Vale Overseas, two directors of Vale Overseas, stating that such consolidation, merger, conveyance or transfer complies with this covenant and that all relevant conditions precedent provided in the applicable indenture have been complied with and (ii) an opinion of counsel stating that such consolidation, merger, conveyance or transfer complies with this covenant and that all relevant conditions provided have been complied with; and |
| · | the successor corporation will expressly agree to withhold against any tax, duty, assessment or other governmental charge thereafter imposed or levied by Brazil, the Cayman Islands (in the case of debt securities issued under the Vale Overseas indenture), a successor jurisdiction or any political subdivision or authority thereof or therein having power to tax as a consequence of such consolidation, merger, conveyance or transfer with respect to the payment of principal of or interest on the debt securities, and to pay such additional amounts as may be necessary to ensure that the net amounts receivable by holders of the debt securities after any such withholding or deduction will equal the respective amounts of principal, premium (if any) and interest, as applicable, which would have been receivable in respect of the debt securities in the absence of such consolidation, merger, conveyance or transfer, subject to exceptions and limitations contained in “—Payment of Additional Amounts,” in relation to the successor jurisdiction. (Article 8) |
Upon any consolidation, merger, conveyance or transfer in accordance with these conditions, the successor corporation will succeed to, and be substituted for, and may exercise every right and power of, Vale or Vale Overseas under the debt securities with the same effect as if the successor corporation had been named as the issuer or guarantor, as applicable, of the debt securities issued under the applicable indenture. If a successor corporation is incorporated in or considered to be resident in a jurisdiction other than Brazil or the Cayman Islands, such jurisdiction will be referred to as a “successor jurisdiction.” No successor corporation will have the right to redeem the debt securities unless Vale or Vale Overseas, as applicable, would have been entitled to redeem the debt securities in similar circumstances. (Article 8)
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If the conditions described above are satisfied, neither Vale nor Vale Overseas will need to obtain the consent of the holders in order to merge or consolidate or convey or transfer all or substantially all of its properties and assets to any other person. Also, Vale and Vale Overseas will not need to satisfy these conditions if Vale or Vale Overseas enters into other types of transactions, including the following:
| · | any transaction in which either Vale or Vale Overseas acquires the stock or assets of another person; |
| · | any transaction that involves a change of control of Vale or Vale Overseas, but in which neither Vale nor Vale Overseas merges or consolidates; and |
| · | any transaction in which Vale or Vale Overseas sells or otherwise disposes of less than substantially all of its properties and assets. |
Substitution of Vale Overseas as issuer
Without the consent of any holders of debt securities, Vale or any wholly owned subsidiary of Vale may, at any time and in Vale’s sole discretion, replace Vale Overseas as issuer and principal debtor in respect of any series of debt securities issued by Vale Overseas, provided that Vale, the successor issuer (if a wholly owned subsidiary of Vale) and the trustee enter into a supplemental indenture under which (i) the successor issuer assumes all of the obligations of Vale Overseas under such debt securities and, unless the successor issuer is Vale, Vale reaffirms that its existing guarantee remains in full force and effect, and (ii) the successor issuer agrees to a covenant in terms corresponding to the obligations of Vale Overseas in respect of the payment of additional amounts as described under “— Payment of Additional Amounts” (but replacing references to the Cayman Islands with references to the jurisdiction of organization of the successor issuer, as applicable). The successor issuer will have the right to an effect the optional redemption for tax reasons as described below under “— Optional Tax Redemption” or provided for in the prospectus supplement.
Upon a substitution of Vale Overseas as issuer as described hereunder, the successor issuer will succeed to, and may exercise every right and power of, Vale Overseas under the relevant series of debt securities under the applicable indenture with the same effect as if such successor issuer had been named as the issuer under the applicable indenture and the debt securities, and Vale Overseas will be released from its liability as obligor upon such debt securities. Any such substitution might be treated for U.S. federal income tax purposes as a deemed disposition of debt securities by a U.S. holder in exchange for new debt securities issued by the new obligor. As a result of this deemed disposition, a U.S. holder could be required to recognize capital gain or loss for U.S. federal income tax purposes equal to the difference, if any, between the issue price of the new debt securities (as determined for U.S. federal income tax purposes), and the U.S. holder’s tax basis in the debt securities. U.S. holders should consult their tax advisors concerning the U.S. federal income tax consequences to them of a change in obligor with respect to the debt securities. (Section 8.4)
Limitation on Liens
Unless otherwise specified in the applicable prospectus supplement, Vale will covenant that for so long as any debt securities remain outstanding, Vale will not create, incur, issue or assume any mortgage, charge, pledge, lien, hypothecation, security interest or other encumbrance, including, without limitation, any equivalent of the foregoing created under the laws of Brazil or any other jurisdiction (each a “Lien”) on or over any Restricted Property (as defined below) to secure Indebtedness, other than a Permitted Lien (as defined below), without in any such case effectively providing that the outstanding debt securities (together with, if Vale shall so determine, any other Indebtedness of Vale) shall be secured equally and ratably with or prior to such secured Indebtedness. (Section 10.6)
For the purposes of this covenant, “Permitted Liens” means any Lien:
| · | granted upon or with regard to any Restricted Property acquired by Vale after the date of the issuance of the debt securities to secure the purchase price of such Restricted Property or to secure Indebtedness incurred solely for the purposes of financing the acquisition of such Restricted Property; provided, however, that the maximum sum secured thereby shall not exceed 130% of the purchase price of such Restricted Property or the Indebtedness incurred solely for the purposes of financing the acquisition of such Restricted Property; |
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| · | granted upon or with regard to any Restricted Property (including any improvements on or to an existing Restricted Property), after the date of the issuance of the debt securities, to secure the payment of all or any part of the cost of development, expansion or construction of or improvement on or to such Restricted Property or to secure Indebtedness incurred solely for the purposes of financing all or any part of the cost of development, expansion or construction of or improvements on or to such Restricted Property; provided, however, that the maximum sum secured thereby shall not exceed the higher of cost or fair market value of that development, expansion, construction or improvement; |
| · | in existence on the date of the issuance of the applicable series of debt securities and any extension, renewal or replacement thereof; provided, however, that the total amount of Indebtedness so secured shall not exceed the amount so secured on the date of the issuance of the applicable series of debt securities; |
| · | arising by operation of law, such as tax, merchants’, maritime or other similar liens arising in the ordinary course of business of Vale; |
| · | arising in the ordinary course of business in connection with the financing of export, import or other trade transactions to secure Indebtedness of Vale; |
| · | arising in connection with Lease Obligations; |
| · | securing or providing for the payment of Indebtedness incurred for the purposes of financing all or a part of the ownership, acquisition, construction, development or operation of any project by Vale, any Subsidiary of Vale or any consortium or other venture in which Vale has any ownership or other similar interest; provided that such lien only extends to (a) Restricted Properties (which may include existing Restricted Properties at any pre-existing site selected for expansion and any concession, authorization or other legal right granted by any governmental authority) which are the subject of such project financing, (b) any revenues from such Restricted Properties, (c) any proceeds from claims belonging to Vale, any Subsidiary of Vale or any consortium or other venture in which Vale has any ownership or other similar interest which arise from the operation, failure to meet specifications, failure to complete, exploitation, sale or loss of, or damage to, such Restricted Property, or (d) shares or other ownership interest in, and any subordinated debt claims against, the project entity whose principal assets and business are constituted by such project; |
| · | granted upon or with regard to any present or future Restricted Property of Vale to secure borrowings from, or funded directly or indirectly by, or effected indirectly through intermediaries by, (i) any Brazilian governmental credit agency (including, but not limited to the Brazilian National Treasury, Banco Nacional de Desenvolvimento Econômico e Social, BNDES Participações S.A., Financiadora de Estudos e Projetos and Agência Especial de Financiamento Industrial); (ii) any Brazilian official financial institutions (including, but not limited to Banco da Amazônia S.A. – BASA and Banco do Nordeste do Brasil S.A. – BNB); (iii) any non-Brazilian official export-import bank or official export-import credit insurer; or (iv) the International Finance Corporation or any non-Brazilian multilateral or government-sponsored agency; |
| · | existing on any asset prior to the acquisition thereof by Vale, whether by merger, consolidation, purchase of assets or otherwise, and not created in contemplation of such acquisition; |
| · | created over funds reserved for the payment of principal, interest and premium, if any, due in respect of the applicable series of debt securities; or |
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| · | not otherwise described in the items referred to above, provided that the aggregate amount of Indebtedness secured pursuant to this exception shall not, on the date any such Indebtedness is incurred, exceed an amount equal to 15% of Vale’s consolidated total assets (calculated on the basis of Vale’s latest quarterly unaudited or annual audited consolidated financial statements, whichever is the most recently prepared, in accordance with Reporting GAAP. |
For the purposes of this covenant, “Restricted Property” means (a) the interest of Vale in any (i) mineral property or concession, authorization or other legal right granted in respect of minerals by any governmental authority, (ii) manufacturing or processing plant, building, structure or other facility used in connection with the processing, refining or manufacturing of minerals or metals, together with the land upon which it is erected and fixtures comprising a part thereof, or (iii) railroad, marine terminal or port, whether owned as of the date of the issuance of the debt securities or thereafter acquired or constructed and (b) any shares of capital stock owned by Vale of a Subsidiary that has interests in the kinds of property described in clauses (i), (ii) or (iii) of (a) above.
“Reporting GAAP” means the International Financial Reporting Standards, as adopted by the International Accounting Standards Board or any other accounting standard that Vale may adopt as its primary reporting accounting standard in its reports filed with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act.
For the purposes of this covenant, “Subsidiary” means an entity of which Vale directly or indirectly owns more than 51% of the outstanding voting shares and Vale has the ability to elect a majority of the members of the board of directors or other governing body.
You should consult the prospectus supplement relating to your debt securities for further information about these covenants and whether they are applicable to your debt securities.
Defeasance and Discharge
The following discussion of full defeasance and discharge and covenant defeasance and discharge will only be applicable to your series of debt securities if Vale or Vale Overseas, as applicable, chooses to apply them to that series, in which case we will so state in the prospectus supplement. (Section 12.1 of the Vale indenture; Section 13.1 of the Vale Overseas indenture)
If the applicable prospectus supplement states that full defeasance will apply to a particular series, Vale and (in the case of debt securities issued under the Vale Overseas indenture) Vale Overseas will be legally released from any payment and other obligations on the debt securities, except for various obligations described below (called “full defeasance”), provided that Vale or Vale Overseas, as applicable, in addition to other actions, puts in place the following arrangements for you to be repaid:
| · | Vale or Vale Overseas, as applicable, must irrevocably deposit in trust for your benefit and the benefit of all other direct holders of the debt securities a combination of money and U.S. government or U.S. government agency debt securities or bonds that, in the opinion of a nationally recognized firm of independent public accountants, will generate enough cash to make interest, principal and any other payments, including additional amounts, on the debt securities on their various due dates. |
| · | Vale or Vale Overseas, as applicable, must deliver to the trustee a legal opinion of counsel, based upon a ruling by the U.S. Internal Revenue Service or upon a change in applicable U.S. federal income tax law, confirming that under then current U.S. federal income tax law Vale or Vale Overseas, as applicable, may make the above deposit without causing you to be taxed on the debt securities any differently than if Vale or Vale Overseas, as applicable, did not make the deposit and instead repaid the debt securities itself. (Sections 12.2 and 12.4 of the Vale indenture; Sections 13.2 and 13.4 of the Vale Overseas indenture) |
If Vale or Vale Overseas ever did accomplish full defeasance as described above, you would have to rely solely on the trust deposit for repayment on the debt securities. You could not look to Vale or Vale Overseas for repayment in the unlikely event of any shortfall. However, even if Vale or Vale Overseas takes these actions, a number of our obligations relating to the debt securities will remain. These include the following obligations:
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| · | to register the transfer and exchange of debt securities; |
| · | to replace mutilated, destroyed, lost or stolen debt securities; |
| · | to maintain paying agencies; and |
| · | to hold money for payment in trust. |
Covenant Defeasance
If the applicable prospectus supplement states that covenant defeasance will apply to a particular series, Vale or Vale Overseas can make the same type of deposit described above and be released from all or some of the restrictive covenants (if any) that apply to the debt securities of the particular series. This is called “covenant defeasance.” In that event, you would lose the protection of those restrictive covenants but would gain the protection of having money and securities set aside in trust to repay the debt securities. In order to achieve covenant defeasance, Vale or Vale Overseas would be required to take all of the steps described above under “—Defeasance and Discharge” except that the opinion of counsel would not have to refer to a change in United States Federal income tax laws or a ruling from the United States Internal Revenue Service. (Sections 12.3 and 12.4 of the Vale indenture; Sections 13.3 and 13.4 of the Vale Overseas indenture)
If Vale or Vale Overseas were to accomplish covenant defeasance, the following provisions of the indenture and the debt securities would no longer apply:
| · | any covenants applicable to the series of debt securities and described in the applicable prospectus supplement; and |
| · | the events of default relating to breach of the defeased covenants, described below under “—Events of Default—What Is an Event of Default?” |
If Vale or Vale Overseas accomplishes covenant defeasance, you would still be able to look to it for repayment of the debt securities if there were a shortfall in the trust deposit. If any event of default occurs and the debt securities become immediately due and payable, there may be such a shortfall. Depending on the event causing the default, you may not be able to obtain payment of the shortfall. (Sections 12.3 and 12.4 of the Vale indenture; Sections 13.3 and 13.4 of the Vale Overseas indenture)
Ranking
The debt securities will rank equally with all the other unsecured and unsubordinated Indebtedness of Vale or Vale Overseas, as the case may be. The guarantees will rank equally with all other unsecured and unsubordinated Indebtedness of Vale. (Section 10.10)
Events of Default
Each indenture provides that you will have special rights if an event of default occurs and is not cured or waived, as described later in this subsection and as may be specified in the applicable prospectus supplement.
What Is an Event of Default?
Each indenture provides that the term “event of default” with respect to any series of debt securities means any of the following:
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| · | failure to pay any interest (or additional amounts, if any) on any of the debt securities of that series on the date when due, which failure continues for a period of 30 days; or failure to pay any principal or premium, if any (or additional amounts, if any), on any of the debt securities of that series on the date when due, which failure continues for a period of seven days; |
| · | in relation to Vale, its significant subsidiaries and (in the case of debt securities issued under the Vale Overseas indenture) Vale Overseas: any default or event of default occurs and is continuing under any agreement, instrument or other document evidencing outstanding Indebtedness in excess of US$200 million in aggregate (or its equivalent in other currencies) and such default or event of default results in the actual acceleration of such Indebtedness; |
| · | Vale or (in the case of debt securities issued under the Vale Overseas indenture) Vale Overseas fails to duly perform or observe any other covenant or agreement in respect of the debt securities of that series and such failure continues for a period of 90 days after Vale or Vale Overseas, as applicable, receives a notice of default stating that it is in breach. The notice must be sent by either the trustee or holders of 25% of the principal amount of debt securities of the affected series; |
| · | Vale or a significant subsidiary of Vale or (in the case of debt securities issued under the Vale Overseas indenture) Vale Overseas (i) has a court decree or order in an involuntary case or proceeding under any applicable bankruptcy, insolvency, suspension of payments, reorganization or other similar law, entered against it, or has a court decree or order adjudging it bankrupt or insolvent, or suspending its payments, or approving a petition seeking its reorganization, arrangement, adjustment or composition or appointing a liquidator or other similar official of it or of any substantial part of its property, or ordering its winding up or liquidation of its affairs, and the decree or order remains unstayed and in effect for a period of 90 consecutive days; or (ii) commences a voluntary bankruptcy, insolvency, reorganization or other similar proceeding, or consents to a decree or order in, or commencement of, an involuntary bankruptcy, or files or consents to the filing of a petition or answer or consent seeking reorganization or relief, or consents to the appointment of a liquidator or similar official of it or of any substantial part of its property, or makes an assignment for the benefit of its creditors, or admits in writing its inability to pay its debts generally as they become due, or takes any corporate action in furtherance of any such action, or is generally unable to make payment of its obligations as they come due; |
| · | any illegality event occurring and continuing under the 8.25% notes due 2034 of Vale Overseas, guaranteed by Vale in excess of US$200 million in aggregate, which results in the actual acceleration of such debt securities; or |
| · | in the case of debt securities issued under the Vale Overseas indenture, a final judgment or judgments (not subject to appeal) determines the guaranty of such debt securities to be unenforceable or invalid, such guaranty ceases for any reason to be valid and binding or enforceable against Vale, or Vale or any person acting on its behalf denies or disaffirms its obligations under such guaranty. (Section 5.1) |
For the purposes of this description of debt securities, “Indebtedness,” with respect to any person, means, without duplication, any amount payable (whether as a direct obligation or indirectly through a guaranty by such person) pursuant to (i) an agreement or instrument involving or evidencing money borrowed, (ii) a conditional sale or a transfer with recourse or with an obligation to repurchase or (iii) Lease Obligations of such Person; provided, however, that as used in the cross-acceleration provision described in the second bullet point above, “Indebtedness” will not include any payment made by Vale on behalf of an affiliate, upon any Indebtedness of such affiliate becoming immediately due and payable as a result of a default by such affiliate, pursuant to a guaranty or similar instrument provided by Vale in connection with such indebtedness, provided that such payment made by Vale is made within five business days of notice being provided to Vale that payment is due under such guaranty or similar instrument.
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For the purposes of the definition of Indebtedness, “affiliate” means any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof that (i) Vale directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with or (ii) in which Vale has a 20% or more holding of voting shares. (Section 1.1)
For the purposes of the definition of Indebtedness, “Lease Obligations” means, with respect to any person, the obligations of such person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property, which obligations are required to be classified and accounted for as a lease or liability set forth on a balance sheet of such person under Reporting GAAP; provided that “Lease Obligations” shall not include any obligations of such person that are or would have been treated as operating leases for purposes of Reporting GAAP prior to the adoption of IFRS 16 (whether or not such operating lease obligations were in effect on the date of adoption of IFRS 16) notwithstanding the fact that such obligations may be required to be treated as lease obligations in accordance with IFRS 16 (on a prospective or retroactive basis or otherwise). The stated maturity of such obligations shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. The principal amount of such obligations shall be the capitalized amount that would appear on the balance sheet of such person in accordance with Reporting GAAP.
For the purposes of the description of “Events of Default” above and “Remedies upon an Event of Default” below, “significant subsidiary” means, at any time, a Subsidiary of which Vale’s and its other Subsidiaries’ proportionate share of the total assets (after intercompany eliminations) exceeds 10% of the total assets of the consolidated group as of the end of the most recently completed fiscal year. (Section 1.1)
An event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the indenture, although the default and acceleration of one series of debt securities may trigger a default and acceleration of another series of debt securities. (Section 5.2)
Remedies upon an Event of Default
Except as provided in the next sentence, if an event of default has occurred and is continuing, the trustee at the written request of holders of not less than 25% in principal amount of the outstanding debt securities of that series will declare the entire principal amount of the debt securities of that series to be due and payable immediately and upon any such declaration, the principal, accrued interest and any unpaid additional amounts will become immediately due and payable. If an event of default occurs because of a bankruptcy, insolvency or reorganization relating to Vale (but not any significant subsidiary) or Vale Overseas (in the case of debt securities issued under the Vale Overseas indenture), the entire principal amount of the debt securities of that series will be automatically accelerated, without any declaration or action by the trustee or any holder, and any principal, accrued interest or additional amounts will become due and payable.
Each of the situations described above is called an acceleration of the maturity of the debt securities under the applicable indenture. If the maturity of the debt securities of any series is accelerated and a judgment for payment has not yet been obtained, the holders of a majority in aggregate principal amount of the outstanding debt securities of that series may cancel the acceleration of the debt securities, provided that Vale or Vale Overseas, as applicable, has paid or deposited with the trustee under the applicable indenture a sum sufficient to pay (i) all overdue interest and any additional amounts on all of the debt securities of the series, (ii) the principal of any debt securities of the series which have become due (other than amounts due solely because of the acceleration), (iii) interest upon overdue interest at the rate borne by (or prescribed therefor in) the debt securities of that series (to the extent that payment of this interest is lawful), and (iv) all sums paid or advanced by the trustee under the applicable indenture and all amounts Vale or Vale Overseas owe the trustee; and provided further that all other defaults with respect to the debt securities of that series have been cured or waived. (Section 5.2)
The trustee is not required under either of the indentures to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under the applicable indenture, or in the exercise of any of its rights or powers, if the trustee has reasonable grounds for believing that repayment of the funds or adequate indemnity against such risk or liability is not reasonably assured to it. (Section 6.1)
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Before you bypass the trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to the debt securities, the following must occur:
| · | you must give the trustee under the applicable indenture written notice of a continuing event of default; |
| · | the holders of not less than 25% in principal amount of the outstanding debt securities of the series must make a written request that the trustee institute proceedings in respect of the event of default; |
| · | they or other holders must offer to the trustee indemnity reasonably satisfactory to the trustee against the costs, expenses and liabilities to be incurred in taking that action; |
| · | the trustee must not have taken action for 60 days after the above steps have been taken; and |
| · | during those 60 days, the holders of a majority in principal amount of the outstanding debt securities of the series must not have given the trustee directions that are inconsistent with the written request of the holders of not less than 25% in principal amount of the debt securities of the series. (Section 5.7) |
Under each indenture, you are entitled, however, at any time to bring a lawsuit for the payment of money due on your security and not paid in full on or after its due date by Vale or Vale Overseas. (Section 5.8)
Street name and other indirect holders should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and how to declare or cancel an acceleration of the maturity of the debt securities.
Waiver of Default
The holders of not less than a majority in principal amount of the debt securities of any series may waive any default for the debt securities of the series, except for defaults which cannot be waived without the consent of each holder. If this happens, the default will be treated as if it had not occurred. No one can waive a payment default, however, without the approval of each holder of the affected series of debt securities. (Section 5.13)
Vale and, in the case of the Vale Overseas indenture, Vale Overseas will furnish to the trustee within 120 days after the end of our fiscal year every year a written statement of certain of our officers and directors, as the case may be, that will either certify that, to the best of their knowledge, we are in compliance with the indenture and the debt securities or specify any default. (Section 10.4)
Street name and other indirect holders should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and how to waive a default.
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The following description of the terms and provisions of the guarantees summarizes the general terms that will apply to each guaranty that we deliver in connection with an issuance of debt securities by Vale Overseas. When Vale Overseas sells a series of debt securities, Vale will execute and deliver a guaranty of that series of debt securities under the Vale Overseas indenture.
Pursuant to any guaranty, Vale will irrevocably and unconditionally agree, upon the failure of Vale Overseas to make the required payments under the applicable series of debt securities and the Vale Overseas indenture, to make any required payment. The amount to be paid by Vale under the guaranty will be an amount equal to the amount of the payment Vale Overseas fails to make. (Article 12 of the Vale Overseas indenture)
| 25 |
At the time of offering any securities, we will supplement the following summary of the plan of distribution with a description of the offering, including the particular terms and conditions thereof, set forth in a prospectus supplement relating to those securities.
Each prospectus supplement with respect to a series of securities will set forth the terms of the offering of those securities, including the name or names of any underwriters or agents, the price of such securities and the net proceeds to us from such sale, any underwriting discounts, commissions or other items constituting underwriters’ or agents’ compensation, any discount or concessions allowed or reallowed or paid to dealers and any securities exchanges on which those securities may be listed.
We may sell the securities from time to time in their initial offering as follows:
| · | through agents; |
| · | to dealers or underwriters for resale; |
| · | directly to purchasers; or |
| · | through a combination of any of these methods of sale. |
In addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing security holders. In some cases, we or dealers acting with us or on our behalf may also purchase securities and reoffer them to the public by one or more of the methods described above. This prospectus may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable prospectus supplement.
The securities we distribute by any of these methods may be sold to the public, in one or more transactions, either:
| · | at a fixed price or prices, which may be changed; |
| · | at market prices prevailing at the time of sale; |
| · | at prices related to prevailing market prices; or |
| · | at negotiated prices. |
We may solicit offers to purchase securities directly from the public from time to time. We may also designate agents from time to time to solicit offers to purchase securities from the public on our behalf. The prospectus supplement relating to any particular offering of securities will name any agents designated to solicit offers, and will include information about any commissions we may pay the agents, in that offering. Agents may be deemed to be “underwriters” as that term is defined in the Securities Act.
From time to time, we may sell securities to one or more dealers acting as principals. The dealers, who may be deemed to be “underwriters” as that term is defined in the Securities Act, may then resell those securities to the public.
We may sell securities from time to time to one or more underwriters, who would purchase the securities as principal for resale to the public, either on a firm-commitment or best-efforts basis. If we sell securities to underwriters, we may execute an underwriting agreement with them at the time of sale and will name them in the applicable prospectus supplement. In connection with those sales, underwriters may be deemed to have received compensation from us in the form of underwriting discounts or commissions and may also receive commissions from purchasers of the securities for whom they may act as agents. Underwriters may resell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from purchasers for whom they may act as agents. The applicable prospectus supplement will include any required information about underwriting compensation we pay to underwriters, and any discounts, concessions or commissions underwriters allow to participating dealers, in connection with an offering of securities.
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If we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.
We may authorize underwriters, dealers and agents to solicit from third parties offers to purchase securities under contracts providing for payment and delivery on future dates. The applicable prospectus supplement will describe the material terms of these contracts, including any conditions to the purchasers’ obligations, and will include any required information about commissions we may pay for soliciting these contracts.
Underwriters, dealers, agents and other persons may be entitled, under agreements that they may enter into with us, to indemnification by us against certain liabilities, including liabilities under the Securities Act.
Unless otherwise indicated in the prospectus supplement for a particular offering of securities, each series of securities will be a new issue, and there will be no established trading market for any security prior to its original issue date. We may not list any particular series of securities on a securities exchange or quotation system. No assurance can be given as to the liquidity or trading market for any of the securities.
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The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual Report on Form 20-F for the year ended December 31, 2022 have been so incorporated in reliance on the report of PricewaterhouseCoopers Auditores Independentes Ltda., an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The technical information incorporated herein by reference to our annual report on Form 20-F filed on April 13, 2023 concerning the Sudbury Operations, including estimates of mineral resources and mineral reserves, was derived from the Technical Report Summary for these properties prepared, with an effective date of December 31, 2022, by Charlie Buck, Tiffany Dube, Darren Hodder, Lisa Lanteigne, Xiaolin (Mike) Yao and Monica Ansah-Sam, each of whom is a qualified person as defined in subpart 1300 of Regulation S-K and an employee of the Company.
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Unless otherwise specified in the applicable prospectus supplement, Cleary Gottlieb Steen & Hamilton LLP will provide an opinion regarding the validity of the debt securities and the guarantees under New York law; Mr. Alexandre D’Ambrosio, General Counsel of Vale S.A., will provide an opinion regarding the authorization of the debt securities and guarantees of Vale under Brazilian law; and Walkers will provide an opinion regarding the authorization of the debt securities of Vale Overseas under Cayman Islands law.
| 29 |
Prospective holders of the debt securities should note that, in certain circumstances, personal data may need to be supplied in order for an investment in the debts securities to be made and for that investment in the debt securities to continue.
Vale Overseas’ use of personal data is governed by the Cayman Islands Data Protection Act, 2021 (as amended) and, in respect of any EU data subjects, the EU General Data Protection Regulation (together, the "Data Protection Legislation").
Under the Data Protection Legislation, individual data subjects have rights and Vale Overseas as data controller has obligations with respect to the processing of personal data by Vale Overseas and its affiliates and delegates, including but not limited to Intertrust Corporate Services (Cayman) Limited as administrator. Breach of the Data Protection Legislation by Vale Overseas could lead to enforcement action against Vale Overseas. Vale Overseas’ privacy notice provides information on its use of personal data under the Data Protection Legislation. Vale Overseas’ privacy notice can be accessed on https://r1.dotdigital-pages.com/p/4VQT-308/cayman-islands-data-protection.
If you are an individual prospective debt security holder, the processing of personal data by and on behalf of the Vale Overseas is directly relevant to you. If you are an institutional investor that provides personal data on individuals connected to you for any reason in relation to your investment in the debt securities (for example directors, trustees, employees, representatives, shareholders, investors, clients, beneficial owners or agents), this will be relevant for those individuals and you should transmit the privacy notice to such individuals or otherwise advise them of its content.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form F-3 under the Securities Act relating to the debt securities offered by this prospectus. This prospectus, which is part of the registration statement, does not contain all of the information set forth in the registration statement and the exhibits and schedules to the registration statement. For further information pertaining to us we refer you to the registration statement and the exhibits and schedules filed as part of the registration statement. If a document has been filed as an exhibit to the registration statement, we refer you to the copy of the document that has been filed. Each statement in this prospectus relating to a document filed as an exhibit is qualified in all respects by the filed exhibit. We file reports, including annual reports on Form 20-F, and other information with the SEC pursuant to the rules and regulations of the SEC that apply to foreign private issuers. Reports and other information filed by us with the SEC available to the public from the SEC at http://www.sec.gov. In addition, as with all of our security filings, they may be accessed at our website, http://www.vale.com. Such filings and other information on our website are not incorporated by reference (except as described in “Incorporation of Certain Documents by Reference,” below).
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and certain later information that we file with the SEC will automatically update and supersede earlier information filed with the SEC or included in this prospectus or a prospectus supplement. We incorporate by reference the following documents:
| · | our annual report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 13, 2023 (File No. 001-15030 and SEC Accession No. 0001292814-23-001516); |
| · | any future annual reports on Form 20-F filed with the SEC after the date of this prospectus and prior to the termination of the offering of the debt securities offered by this prospectus; |
| · | any future reports on Form 6-K that we furnish to the SEC after the date of this prospectus that are identified in such reports as being incorporated by reference in this prospectus. |
We will provide without charge to any person to whom a copy of this prospectus is delivered, upon the written or oral request of any such person, a copy of any or all of the documents referred to above which have been or may be incorporated herein by reference, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference in such documents). Requests should be directed to Vale’s Investor Relations Department located at Praia de Botafogo 186, 18th floor, Botafogo, 22250-145, Rio de Janeiro, RJ, Brazil (telephone: +55-21-3485-3900).
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Vale S.A.
Debt Securities and Guarantees
Vale Overseas Limited
Guaranteed Debt Securities
__________________
PROSPECTUS
April 13, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 8. | Indemnification of Directors and Officers |
The laws of the Cayman Islands do not provide for indemnification of directors and officers. Vale Overseas’ Memorandum and Articles of Association provides that Vale Overseas shall indemnify officers and directors and their personal representatives against all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained in or about the conduct of Vale Overseas’ business or affairs or in the execution or discharge of their duties, powers, authorities or discretions, including any costs, expenses, losses or liabilities incurred in defending (whether successfully or otherwise) any civil proceedings concerning Vale Overseas in the Cayman Islands or elsewhere. Vale Overseas’ Memorandum and Articles of Association further provides that no officer or director shall be liable, among other things, for acts, omissions, losses, damages or other misfortune arising from their execution or discharge of duties, powers, authorities, discretions of office or in relation thereto, unless resulting from the officer’s or director’s dishonesty.
Neither the laws of Brazil nor Vale’s bylaws or other constitutive documents provide for indemnification of directors and officers. Under the Brazilian Civil Code, a person engaged in an illegal action must indemnify any third person that incurred losses or damages arising from such illegal action. Vale has also entered into an indemnification agreement with each of its directors and officers, providing for indemnification for losses incurred by such director or officer as a result of actions or omissions in the performance of his or her functions or as a result of being a director or officer of Vale, subject to certain exceptions. Vale maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (b) to Vale itself with respect to payments which may be made by Vale to such officers and directors pursuant to the above indemnification provisions or otherwise as a matter of law.
| Item 9. | Exhibits |
| II-1 |
* Incorporated by reference.
Item 10. Undertakings
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this item do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
(2) That, for the purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Item 8.A. of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement;
| II-2 |
(5) That, for the purposes of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of the registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purposes of providing the information required by Section (10)(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; and
(6) That, for the purposes of determining liability of the registrants under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the registrant undertakes that in a primary offering of securities of a registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, such registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the registrant or used or referred to by the registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the registrant or its securities provided by or on behalf of the registrant; and (iv) any other communication that is an offer in the offering made by the registrant to the purchaser.
(b) Each of the undersigned registrants hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each of the registrants pursuant to the foregoing provisions, or otherwise, each of the registrants has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in
| II-3 |
connection with the securities being registered, such registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
| II-4 |
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rio de Janeiro, State of Rio de Janeiro, Brazil, on April 13, 2023.
VALE S.A.
By: /s/ Eduardo de Salles Bartolomeo_________
Name: Eduardo de Salles Bartolomeo
Title: Chief Executive Officer
By: /s/ Gustavo Duarte Pimenta_____________
Name: Gustavo Duarte Pimenta
Title: Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Eduardo de Salles Bartolomeo, Gustavo Duarte Pimenta, Adalgisa Campos da Silva de Queiroz Vieira and João Sichieri Moura to act as his or her true and lawful attorney-in-fact and agent, each with full power of substitution, for him/her and in his/her name, place and stead, in any and all such capacities, to sign any and all amendments (including post-effective amendments) and supplements to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as s/he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or their or his/her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated in respect of Vale S.A.
|
SIGNATURE |
TITLE |
DATE | |
| /s/ Eduardo de Salles Bartolomeo | Chief Executive Officer | April 13, 2023 | |
| Eduardo de Salles Bartolomeo | |||
| /s/ Gustavo Duarte Pimenta | Chief Financial Officer | April 13, 2023 | |
| Gustavo Duarte Pimenta | |||
| /s/ José Luciano Duarte Penido | Chairman of the Board of Directors | April 13, 2023 | |
| José Luciano Duarte Penido | |||
| /s/ Fernando Jorge Buso Gomes | Vice-Chairman of the Board of Directors | April 13, 2023 | |
| Fernando Jorge Buso Gomes | |||
| /s/ Daniel André Stieler | Director | April 13, 2023 | |
| Daniel André Stieler | |||
| II-5 |
| /s/ Eduardo de Oliveira Rodrigues Filho | Director | April 13, 2023 |
| Eduardo de Oliveira Rodrigues Filho | ||
| /s/ Ken Yasuhara | Director | April 13, 2023 |
| Ken Yasuhara | ||
| /s/ Lucio Azevedo | Director | April 13, 2023 |
| Lucio Azevedo | ||
| /s/ Manuel Lino Silva de Sousa Oliveira | Director | April 13, 2023 |
| Manuel Lino Silva de Sousa Oliveira | ||
| Director | ||
| Marcelo Gasparino da Silva | ||
| Director | ||
| Mauro Gentile Rodrigues da Cunha | ||
| /s/ Murilo Cesar Lemos dos Santos Passos | Director | April 13, 2023 |
| Murilo Cesar Lemos dos Santos Passos | ||
| /s/ Rachel de Oliveira Maia | Director | April 13, 2023 |
| Rachel de Oliveira Maia | ||
| Director | ||
| Roberto da Cunha Castello Branco | ||
| /s/ Roger Allan Downey | Director | April 13, 2023 |
| Roger Allan Downey | ||
| II-6 |
SIGNATURES OF VALE OVERSEAS LIMITED
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rio de Janeiro, State of Rio de Janeiro, Brazil, on April 13, 2023.
VALE OVERSEAS LIMITED
By: /s/Adalgisa Campos da Silva de Queiroz Vieira
Name: Adalgisa Campos da Silva de Queiroz Vieira
Title: Principal Executive Officer and Director
By: /s/ João Sichieri Moura________________
Name: João Sichieri Moura
Title: Principal Financial and Accounting Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Eduardo de Salles Bartolomeo, Gustavo Duarte Pimenta, Adalgisa Campos da Silva de Queiroz Vieira and João Sichieri Moura to act as his or her true and lawful attorney-in-fact and agent, each with full power of substitution, for him/her and in his/her name, place and stead, in any and all such capacities, to sign any and all amendments (including post-effective amendments) and supplements to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as s/he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or their or his/her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement or Amendment thereto has been signed by the following persons in the capacities and on the dates indicated in respect of Vale Overseas Limited.
|
SIGNATURE |
TITLE |
DATE |
| /s/Adalgisa Campos da Silva de Queiroz Vieira | Director | April 13, 2023 |
| Adalgisa Campos da Silva de Queiroz Vieira | ||
|
/s/ João Sichieri Moura |
Director | April 13, 2023 |
| João Sichieri Moura | ||
| /s/ David Kenneth Sims | Director | April 13, 2023 |
| David Kenneth Sims | ||
| II-7 |
SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE OF THE REGISTRANTS
Pursuant to the Securities Act, the undersigned, the duly authorized representative in the United States of each of the registrants has signed this registration statement on April 13, 2023.
Cogency Global Inc.
Authorized U.S. Representative
By: /s/ Colleen A. De Vries______________________
Name: Colleen A. De Vries
Title: Sr. Vice President on behalf of Cogency Global Inc.
| II-8 |
INDEX TO EXHIBITS
* Incorporated by reference.
| II-9 |
|
Rio de Janeiro, April 13, 2023
Ladies and Gentlemen:
I am the General Counsel of Vale S.A. (“Vale”), a corporation organized and existing under the laws of Brazil, and have acted as Brazilian counsel of Vale and Vale Overseas Limited (“Vale Overseas”), a wholly owned subsidiary of Vale organized and existing under the laws of the Cayman Islands, in connection with the preparation and filing by Vale and Vale Overseas, under the United States Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form F-3 (the “Registration Statement”) with the United States Securities and Exchange Commission (the “SEC”) relating to (i) unsecured debt securities of Vale (the “Vale Debt Securities”) and (ii) debt securities of Vale Overseas (the “Vale Overseas Debt Securities”) guaranteed by Vale (the “Guarantees”). The Vale Debt Securities, the Vale Overseas Debt Securities and the Guarantees (referred to collectively herein as the “Securities”) are to be issued from time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, at offering prices to be determined from time to time. All capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Registration Statement.
1. In rendering the opinions set forth below, I have examined copies of the documents listed below:
(i) the Registration Statement and the documents incorporated by reference therein;
(ii) the by-laws of Vale as last amended at the Extraordinary General Shareholders’ Meeting held on December 21, 2022;
(iii) the minutes of the Ordinary and Extraordinary General Shareholders’ Meeting of Vale dated as of April 29, 2022, which, among other matters, recorded the approval of the election of the current members of Vale’s Board of Directors;
(iv) the minutes of the meetings of the Board of Directors of Vale dated as of March 15, 2021, September 20, 2021 and December 22, 2022 at which the current officers of Vale were appointed;
(v) the indenture, dated as of August 4, 2021, between Vale, as issuer, and The Bank of New York Mellon, as trustee (“Vale Indenture”), attached as an exhibit to the Registration Statement; and
(vi) the amended and restated indenture, dated as of August 4, 2021, among Vale Overseas, as issuer, Vale, as guarantor, and The Bank of New York Mellon, as trustee (“Vale Overseas Indenture”), attached as an exhibit to the Registration Statement.
The Vale Indenture and the Vale Overseas Indenture are collectively referred to herein as the “Indentures”.
2. I have also examined the records, agreements, instruments and documents and made such investigations of law as I have deemed relevant or necessary as the basis for the opinions hereinafter expressed. I have also assumed, for purposes of the opinions expressed herein, that:
(i) no provision of each of the Indentures and of the Securities conflicts with or is otherwise invalid, illegal or unenforceable under the laws of any jurisdiction (other than Brazil); and
(ii) at the time of the execution and delivery of the Indentures and of the Securities, they will have been duly authorized pursuant to applicable law (other than Brazilian law).
3. I have also assumed, without any independent investigation or verification of any kind, the validity, legality, binding effect and enforceability of the Indentures and of the Securities under the laws of the State of New York and the Cayman Islands, as the case may be.
4. I have further assumed that (i) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective; (ii) a prospectus supplement will have been prepared and filed with the SEC describing the Securities offered thereby; (iii) all Securities will be issued and sold in compliance with all applicable laws and in the manner stated in the Registration Statement and the appropriate prospectus supplement; and (iv) a definitive underwriting or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by Vale and/or Vale Overseas and the other parties thereto. Furthermore, I have assumed (a) the due organization and valid existence of all parties (other than Vale) to the Indentures under the laws of the countries of their respective incorporation; (b) that the Indentures and the Securities will have been duly authorized and validly executed and delivered by the parties thereto (other than Vale); and (c) that the performance thereof is within the capacity and powers of the parties thereto (other than Vale).
5. My opinions are delivered on the basis of my professional legal judgment and on the basis of the knowledge and investigation of the Vale Legal Department, which I oversee.
6. Based upon the foregoing and subject to the qualifications and limitations set forth herein, I am of the opinion that:
(i) Vale has been duly incorporated and is validly existing as a sociedade anônima under the laws of Brazil;
(ii) Vale has the corporate power to, and all necessary corporate action has been taken to, execute, deliver and file the Registration Statement; and
(iii) in connection with the issue, offer and sale of the Vale Debt Securities and the Guarantees and the performance of Vale’s obligations thereunder, when (a) all necessary corporate actions have been taken by Vale to approve the issuance and terms of the Vale Debt Securities and the Guarantees, and the terms of the offering and related documents and matters, and (b) the Indentures and the Guarantees have been duly executed, authenticated, issued and delivered in accordance with their respective provisions, and, in the case of the Guarantees, with the provisions of the Vale Overseas Indenture, and in accordance with the applicable definitive underwriting agreement upon payment of the consideration therefor provided for therein, the Vale Debt Securities and the Guarantees will be duly authorized, executed and delivered and will be a valid and binding obligation of Vale.
7. The foregoing opinions are subject to the following qualifications:
(i) To ensure the enforceability or the admissibility in evidence of the Indentures and any other document required by any Brazilian court to be furnished: (a) the signatures of the parties thereto signing outside Brazil must be notarized; (b) the signature of the notary must be certified by a consular official of Brazil having jurisdiction to provide for such action or be apostilled in accordance with the Convention Abolishing the Requirement of Legalization for Foreign Public Documents; (c) the Indentures and any other documents or instruments prepared in a language other than Portuguese (whether signed abroad or not) must be translated into Portuguese by a sworn translator, except if such procedures were exempted by an international treaty entered into by Brazil; absent such notarization and authentication, the Indenture and any other documents or instruments prepared in a language other than Portuguese, together with its respective sworn translation, must be registered with the appropriate Registry of Deeds and Documents (for which certain translation and registration fees would apply), which may be done immediately prior to any such enforcement or presentation;
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(ii) Any judgment against Vale for the payment of certain sum of money rendered by any Federal or State Court in the City, County and State of New York in respect of the Indentures or of the Securities should be recognized in the courts of Brazil, and such courts would enforce such judicial decision without retrial or re-examination of the merits of the original decision only if such judicial decision has been previously ratified by the Superior Court of Justice (Superior Tribunal de Justiça); which ratification is available only if the judicial decision: (a) fulfills all formalities required for its enforceability under the laws of the State of New York, (b) was issued by a competent court after proper service of process on the parties, which service of process must comply with Brazilian law if made in Brazil, or, after sufficient evidence of the parties’ absence has been given, as established pursuant to applicable law, (c) is not subject to appeal, (d) does not violate a final and appealable decision issued by a Brazilian Court and does not violate the exclusive jurisdiction of the Brazilian judiciary authority, (e) was authenticated by a Brazilian consulate in the State of New York or is duly apostilled in accordance with the Convention Abolishing the Requirement of Legalization for Foreign Public Documents and is accompanied by a translation thereof into Portuguese prepared by a sworn translator, except if such procedure was exempted by an international treaty entered into by Brazil, (f) was translated by a sworn translator registered in Brazil, except if such procedure was exempted by an international treaty entered into by Brazil, and (g) is not contrary to Brazilian national sovereignty, public order or good morals;
(iii) Pursuant to the regulations of the Brazilian Central Bank relating to foreign exchange and capital, individuals and legal entities may enter into transactions for the purchase and sale of foreign currency, without limitation on amount, with due regard for the terms and conditions of the regulation and the validity of the specific transaction, based on the economic grounds and liabilities defined in the respective document. In accordance therewith, Vale may remit funds in foreign currency to cover financial obligations assumed by offshore subsidiaries. Furthermore, pursuant to regulations of the Brazilian Central Bank, it is possible for the Brazilian guarantor to deposit the corresponding amount in Brazilian currency at a non-resident account held in Brazil by the foreign creditor, which would then be able to freely convert such funds into foreign currency for remittance abroad;
(iv) Any amounts to be paid under the Vale Debt Securities and/or the Guarantees in excess of the amounts provided for in the Indentures or in the Guarantee, if any, will depend on the analysis of the legality and economic grounds by the Brazilian commercial bank chosen to implement the relevant foreign exchange control transactions or, as the case may be, pursuant to a special authorization and/or registration to be obtained from the Brazilian Central Bank, which authorization and/or registration will be granted at the Brazilian Central Bank’s sole discretion;
(v) Certain payments in U.S. Dollars by Vale in connection with the Indenture or the Securities may be subject to Vale obtaining the applicable authorization of the Brazilian Central Bank for remittance thereof, including the Registry of Financial Transaction Module (Módulo Registro de Operação Financeira – “ROF”);
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(vi) The enforceability of the Indentures and of the Securities is limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws relating to or limiting creditors’ rights generally or by general equitable principles, and, in the event of a bankruptcy of Vale, certain credits, such as credits for salaries, wages, social security and taxes, will have preference over any claims, including secured ones;
(vii) In case of bankruptcy, all credits denominated in foreign currency shall be converted into local currency at the exchange rate prevailing on the date of the issuance of the decision declaring the bankruptcy, and the amount so determined shall be the amount so considered for any payments to creditors in the bankruptcy;
(viii) In the event that any suit is brought against Vale under or in connection with the Vale Debt Securities and/or the Guarantees, service of process upon Vale, if made in Brazil, must be effected in accordance with Brazilian law;
(ix) The enforceability of the Indentures or any related documents in the courts of Brazil is subject to the payment of certain expenses and court fees;
(x) Any judgment obtained against Vale in the courts of Brazil in respect of any sum payable by it under the Vale Debt Securities and/or the Guarantees will be expressed in the Brazilian currency equivalent of the U.S. dollar amount of such sum;
(xi) Under Brazilian laws, properties and assets of a public concessionaire bound to the performance of the applicable concession agreement are not subject to attachment, either prior to judgment, in aid of execution, or otherwise; and
(xii) Under Brazilian law, injunctive relief may or may not be granted at the discretion of the Brazilian courts.
8. I express no opinion as to any agreement, instrument or other document other than as specified in this letter.
9. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me in the prospectus constituting part of the Registration Statement and in any prospectus supplements related thereto under the caption “Validity of the Securities” as general counsel of Vale. I further consent to the incorporation by reference of this opinion into any registration statement or post-effective amendment filed pursuant to Rule 462(b) or Rule 462(e) under the Securities Act of 1933, as amended, with respect to the securities registered in the Registration Statement.
10. I am qualified to practice law in Brazil only, and I do not express any opinion in respect of any laws of any other jurisdiction. This opinion is based upon and limited in all respects to the law applicable in Brazil as presently published, existing and in force.
11. I expressly disclaim any responsibility to advise you or any other person who is permitted to rely on the opinions expressed herein as specified above of any development or circumstance of any kind including any change of law or fact that may occur after the date of this letter even though such development, circumstance or change may affect the legal analysis, a legal conclusion or any other matter set forth in or relating to this letter. Accordingly, any person relying on this letter at any time should seek advice of its counsel as to the proper application of this letter at such time. This opinion may be relied upon, as of the date rendered, only by you and no other person may rely upon this opinion without my prior written consent.
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| Very truly yours, | |
|
| |
| /s/ Alexandre Silva D’Ambrosio | |
| Alexandre Silva D’Ambrosio | |
| General Counsel of Vale S.A. | |
13 April 2023 Our Ref: HA/AE/cb/V0635-182711
Vale S.A.
Praia de Botafogo,
186 – Salas 1101, 1601, 1701 and 1801
Rio de Janeiro/RJ, Brazil
Vale Overseas Limited
One Nexus Way, Camana Bay
Grand Cayman, KY1-9005
Cayman Islands
Dear Sir or Madam
filing of REGISTRATION STATEMENT ON FORM F-3 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF VALE OVERSEAS LIMITED AND VALE S.A.
We have acted as special Cayman Islands counsel to Vale Overseas Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"), in connection with the preparation and filing with the SEC under the Securities Act of a the registration statement on Form F-3 of Vale S.A., a stock corporation (sociedade por ações), ("Vale"), and the Company (the "2023 Registration Statement") relating to the offering from time to time, together or separately and in one or more series (if applicable), of (i) debt securities of Vale (the "Vale Debt Securities") and (ii) guaranteed debt securities of the Company (each a "Company Debt Security" and, together the "Company Debt Securities") accompanied by guaranties of Vale (the "Guaranties"). The securities being registered under the 2023 Registration Statement will be offered on a continuous or delayed basis pursuant to the provisions of Rule 415 under the Securities Act, at offering prices to be determined from time to time.
We are Cayman Islands Attorneys at Law and express no opinion as to any laws other than the laws of the Cayman Islands in force and as interpreted at the date of this opinion. We have not, for the purposes of this opinion, made any investigation of the laws, rules or regulations of any other jurisdiction. Except as explicitly stated herein, we express no opinion in relation to any representation or warranty contained in the Transaction Documents (as defined below) nor upon the commercial terms of the transactions contemplated by the Transaction Documents.
In rendering this opinion, we have reviewed:
| 1. | the 2023 Registration Statement filed with the SEC as at the date hereof; |
| 2. | the amended and restated indenture dated as of 4 August 2021 (the "Indenture") among the Company, as issuer, Vale S.A. as guarantor and The Bank of New York Mellon, as trustee (the "Trustee"), attached as an exhibit to the 2023 Registration Statement and pursuant to which Company Debt Securities may be issued, and the form of Company Debt Security attached thereto; |
Walkers 190 Elgin Avenue, George Town Grand Cayman KY1-9001, Cayman Islands T +1 345 949 0100 F +1 345 949 7886 www.walkersglobal.com Bermuda | British Virgin Islands | Cayman Islands | Dubai | Guernsey | Hong Kong | Ireland | Jersey | London | Singapore |
| WalkerS | page 2 |
| 3. | the Certificate of Incorporation of the Company dated 3 April 2001, the Memorandum and Articles of Association of the Company as adopted on 6 March 2002 as amended pursuant to a special resolution dated 7 January 2004 (the "Memorandum and Articles") and the Register of Directors of the Company, certified copies of which have been provided to us by its registered office in the Cayman Islands (together, the "Company Records"); and |
| 4. | a copy of executed minutes of a meeting of the Board of Directors of the Company held on 28 March 2023 (the "Resolutions"), |
and we have made such inquiries and examined originals (or copies certified or otherwise identified to our satisfaction) of such documents, corporate records and other instruments and made such examination of the law as we have deemed necessary or appropriate to enable us to render this opinion. In such examinations, we have assumed the genuineness of all signatures, the legal capacity at all relevant times of any natural persons signing any documents, the authenticity of all documents submitted to us as originals, the conformity to authentic originals of all documents submitted to us as certified or true copies or as reproductions (including documents received by facsimile) and the truthfulness of all certificates of public officials and corporate officers. For the purposes of this opinion, the Indenture and any Company Debt Security are collectively referred to as "Transaction Documents".
In connection with this opinion, we have relied upon the following assumptions, which we have not independently verified:
| 1. | At the time of any offering of Company Debt Securities (i) the 2023 Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective; (ii) a prospectus supplement will have been prepared and filed with the SEC describing the Company Debt Securities offered thereby; (iii) the Company Debt Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the 2023 Registration Statement and the appropriate prospectus supplement; and (iv) a definitive purchase, underwriting or similar agreement with respect to any Company Debt Securities offered will have been duly authorised and validly executed and delivered by the Company and the other parties thereto. |
| 2. | There are no provisions of the laws of any jurisdiction outside the Cayman Islands which would be contravened by the execution or delivery of the Transaction Documents and, insofar as any obligation expressed to be incurred under the Transaction Documents is to be performed in or is otherwise subject to the laws of any jurisdiction outside the Cayman Islands, its performance will not be illegal by virtue of the laws of that jurisdiction. |
| 3. | The Transaction Documents are, or will be, as the case may be, within the capacity, power, and legal right of, and have been or will be duly authorised, executed and delivered by, each of the parties thereto (other than the Company). |
| 4. | The Transaction Documents constitute or, when executed and delivered, will constitute the legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their terms as a matter of the laws of all other relevant jurisdictions (other than the Cayman Islands). |
| WalkerS | page 3 |
| 5. | The choice of the laws of the jurisdiction selected to govern each of the Transaction Documents has, or will have been, as the case may be, been made in good faith and will be regarded as a valid and binding selection which will be upheld in the courts of that jurisdiction and all relevant jurisdictions (other than the Cayman Islands). |
| 6. | All authorisations, approvals, consents, licences and exemptions required by, and all filings and other steps required of each of the parties to the Transaction Documents outside the Cayman Islands to ensure the legality, validity and enforceability of the Transaction Documents have been or will, as the case may be, be duly obtained, made or fulfilled and are and will remain in full force and effect and any conditions to which they are subject have been satisfied. |
| 7. | All conditions precedent, if any, contained in the Transaction Documents have been or will be, as the case may be, satisfied or waived. |
| 8. | The Board of Directors of the Company considers, or will consider, as the case may be, the execution of the Transaction Documents and the transactions contemplated thereby to be in the best interests of the Company. |
| 9. | No disposition of property effected by any of the Transaction Documents is made for an improper purpose or wilfully to defeat an obligation owed to a creditor and at an undervalue. |
| 10. | The Company was, or will be, as the case may be, on the date of execution of the Transaction Documents to which it is a party and the disposition of property by the Company thereunder, able to pay its debts as they became due from its own moneys, and any disposition or settlement of property effected by any of the Transaction Documents is, or will be, as the case may be, or will be made in good faith and for valuable consideration and at the time of each disposition of property by the Company pursuant to the Transaction Documents the Company will be able to pay its debts as they become due from its own moneys. |
| 11. | The originals of all documents examined in connection with this opinion are authentic. The signatures, initials and seals on the Transaction Documents are, or will be, as the case may be, genuine and are, or will be, as the case may be, those of a person or persons given power to execute the Transaction Documents under the Resolutions or any power of attorney given by the Company to execute the Transaction Documents. All documents purporting to be sealed have been so sealed. All copies are complete and conform to their originals. Any translations are a complete and accurate translation of the original document they purport to translate. The Transaction Documents conform, or will conform, as the case may be, in every material respect to the latest drafts of the same produced to us and, where provided in successive drafts, have been marked up to indicate all changes to such Transaction Documents. |
| 12. | Any Transaction Document was, or will be, as the case may be, either executed as a single physical document (whether in counterpart or not) in full and final form or, where any Transaction Document was executed by or on behalf of any company, body corporate or corporate entity, the relevant signature page was attached to such Transaction Document by, or on behalf of, the relevant person or otherwise with such person's express or implied authority. |
| WalkerS | page 4 |
| 13. | The Memorandum and Articles reviewed by us are the memorandum and articles of association of the Company and are in force at the date hereof. |
| 14. | The Company Records are complete and accurate and all matters required by law and the Memorandum and Articles to be recorded therein are completely and accurately so recorded. |
| 15. | There are no records of the Company (other than the Company Records), agreements, documents or arrangements other than the documents expressly referred to herein as having been examined by us which materially affect, amend or vary the transactions envisaged in the Transaction Documents or restrict the powers and authority of the Directors of the Company in any way or which would affect any opinion given herein. |
| 16. | The Resolutions were duly adopted at a duly convened meeting of the Board of Directors of the Company and such meeting was held and conducted in accordance with the Memorandum and Articles. |
| 17. | The Resolutions and any power of attorney given by the Company to execute the Transaction Documents remain in full force and effect and have not been revoked or varied. |
| 18. | No resolution voluntarily to wind up the Company has been adopted by the members of the Company and no event of a type which is specified in the Memorandum and Articles as giving rise to the winding up of the Company (if any) has in fact occurred. |
| 19. | No amounts paid to or for the account of any party under the Transaction Documents or any property received or disposed of by any party to the Transaction Documents in each case in connection with the performance of the Transaction Documents or the consummation of the transactions contemplated thereby, represent or will represent proceeds of criminal conduct or criminal property as defined in the Proceeds of Crime Act (as amended) (the "POCA") or terrorist property as defined in the POCA or the Terrorism Act (as amended) (the "Terrorism Act"), each of the Cayman Islands. |
| 20. | As a matter of all relevant laws (other than the laws of the Cayman Islands), any power of attorney given by the Company to execute the Transaction Documents has been duly executed by the Company and constitutes the persons named therein as the duly appointed attorney of the Company with such authority as is specified therein. |
| 21. | The terms of the Transaction Documents (other than the Indenture) will not breach any provision of Cayman Islands law or any public policy of the Cayman Islands. |
| 22. | The Company Debt Securities will conform to the forms attached to the Indenture. |
The opinions expressed herein are subject to the following qualifications:
| 1. | The term "enforceable" and its cognates as used in this opinion means that the obligations assumed by any party under the Transaction Documents are of a type which the courts of the Cayman Islands enforce. This does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular: |
| (a) | enforcement of obligations and the priority of obligations may be limited by bankruptcy, insolvency, liquidation, restructuring, reorganisation, readjustment of debts or moratorium and other laws of general application relating to or affecting the rights of creditors or by prescription or lapse of time; |
| WalkerS | page 5 |
| (b) | enforcement may be limited by general principles of equity and, in particular, the availability of certain equitable remedies such as injunction or specific performance of an obligation may be limited where the court considers damages to be an adequate remedy; |
| (c) | claims may become barred under statutes of limitation or may be or become subject to defences of set-off, counterclaim, estoppel and similar defences; |
| (d) | where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable in the Cayman Islands to the extent that performance would be illegal under the laws of, or contrary to the public policy of, that jurisdiction; |
| (e) | a judgment of a court of the Cayman Islands may be required to be made in Cayman Islands dollars; |
| (f) | to the extent that any provision of the Transaction Documents is adjudicated to be penal in nature, it will not be enforceable in the courts of the Cayman Islands; in particular, the enforceability of any provision of the Transaction Documents that is adjudicated to constitute a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation may be limited; |
| (g) | to the extent that the performance of any obligation arising under the Transaction Documents would be fraudulent or contrary to public policy, it will not be enforceable in the courts of the Cayman Islands; |
| (h) | in the case of an insolvent liquidation of the Company, its liabilities are required to be translated into the functional currency of the Company (being the currency of the primary economic environment in which it operated as at the commencement of the liquidation) at the exchange rates prevailing on the date of commencement of the voluntary liquidation or the day on which the winding up order is made (as the case may be); |
| (i) | a Cayman Islands court will not necessarily award costs in litigation in accordance with contractual provisions in this regard; and |
| (j) | the effectiveness of terms in the Transaction Documents excusing any party from a liability or duty otherwise owed or indemnifying that party from the consequences of incurring such liability or breaching such duty shall be construed in accordance with, and shall be limited by, applicable law, including generally applicable rules and principles of common law and equity. |
| 2. | Cayman Islands stamp duty will be payable on any Transaction Documents if it is executed in or brought to the Cayman Islands, or produced before a Cayman Islands court. |
| 3. | A certificate, determination, calculation or designation of any party to the Transaction Documents as to any matter provided therein might be held by a Cayman Islands court not to be conclusive, final and binding, notwithstanding any provision to that effect therein contained, for example if it could be shown to have an unreasonable, arbitrary or improper basis or in the event of manifest error. |
| WalkerS | page 6 |
| 4. | If any provision of the Transaction Documents is held to be illegal, invalid or unenforceable, severance of such provision from the remaining provisions will be subject to the discretion of the Cayman Islands courts notwithstanding any express provisions in this regard. |
| 5. | Every conveyance or transfer of property, or charge thereon, and every payment obligation and judicial proceeding, made, incurred, taken or suffered by a company at a time when that company was unable to pay its debts within the meaning of section 93 of the Companies Act (as amended) of the Cayman Islands (the "Companies Act"), and made or granted in favour of a creditor with a view to giving that creditor a preference over the other creditors of the company, would be voidable upon the application of the company's liquidator pursuant to section 145(1) of the Companies Act, if made, incurred, taken or suffered within the six months preceding the commencement of a liquidation of that company. Such actions will be deemed to have been made with a view to giving such creditor a preference if it is a "related party" of the company. A creditor shall be treated as a related party if it has the ability to control the company or exercise significant influence over the company in making financial and operating decisions. |
| 6. | Any disposition of property made at an undervalue by or on behalf of a company and with an intent to defraud its creditors (which means an intention to wilfully defeat an obligation owed to a creditor), shall be voidable: |
| (a) | under section 146(2) of the Companies Act at the instance of the company's official liquidator; and |
| (b) | under the Fraudulent Dispositions Act (as amended) of the Cayman Islands, at the instance of a creditor thereby prejudiced, |
provided that in either case, no such action may be commenced more than six years after the date of the relevant disposition.
| 7. | If any business of a company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, a court of the Cayman Islands may declare that any persons who were knowingly parties to the carrying on of the business of the company in such manner are liable to make such contributions, if any, to the company's assets as a court of the Cayman Islands thinks proper. |
| 8. | Notwithstanding any purported date of execution in any of the Transaction Documents, the rights and obligations therein contained take effect only on the actual execution and delivery thereof but the Transaction Documents may provide that they have retrospective effect as between the parties thereto alone. |
| 9. | In principle, a person who claims to be entitled pursuant to a contract to recover the legal fees and expenses incurred in enforcing that contract shall be entitled to judgment for the amount of legal fees and expenses found due under the contract and such amount shall not be subject to taxation pursuant to the applicable rule of court. |
| WalkerS | page 7 |
| 10. | We express no opinion upon any provisions in the Memorandum and Articles or any document which contains a reference to any law or statute that is not a Cayman Islands law or statute. |
| 11. | We express no opinion upon the effectiveness of any clause of the Transaction Documents providing that the terms of such Transaction Document may only be amended in writing. |
| 12. | The obligations of the Company may be subject to restrictions pursuant to United Nations and United Kingdom sanctions extended to the Cayman Islands by the Order of His Majesty in Council. |
| 13. | Under the laws of the Cayman Islands, persons who are not party to a Transaction Document have no direct rights or obligations under such Transaction Document unless: |
| (a) | such Transaction Document expressly provides in writing that such persons may in their own right enforce a term of such Transaction Document under The Contracts (Rights of Third Parties) Act, 2014 of the Cayman Islands; |
| (b) | they are persons acting pursuant to powers contained in a deed poll; or |
| (c) | they are beneficiaries under properly constituted trusts. |
| 14. | All powers of attorney granted by the Company in any of the Transaction Documents must be duly executed as deeds or under seal by persons authorised to do so: |
| (a) | if governed by the laws of the Cayman Islands; and/or |
| (b) | in order for the donee of the power and certain third parties to benefit from certain provisions of the Powers of Attorney Act (as amended) of the Cayman Islands (the "Power of Attorney Act"). |
| 15. | All powers of attorney granted by the Company in the Transaction Documents which by their terms are expressed to be irrevocable are irrevocable pursuant to the provisions of the Power of Attorney Act only if: |
| (a) | executed as a deed or under seal by persons authorised to do so; and |
| (b) | given to secure a proprietary interest of the donee of the power or the performance of an obligation owed to the donee. |
Where a power of attorney granted by the Company is expressed to be irrevocable and is given to secure:
| (i) | a proprietary interest of the donee of the power; or |
| (ii) | the performance of an obligation owed to the donee, |
then, so long as the donee has that interest or the obligation remains undischarged, the power shall not be revoked:
| WalkerS | page 8 |
| (i) | by the donor without the consent of the donee; or |
| (ii) | by the death, incapacity or bankruptcy of the donor, or if the donor is a body corporate, by its winding-up or dissolution. |
| 16. | Where a document provides for an exclusive or non-exclusive jurisdiction clause submitting (or permitting the submission) to the jurisdiction of the courts in the Cayman Islands , a court in the Cayman Islands may decline to accept jurisdiction in any matter where: |
| (a) | it determines that some other jurisdiction is a more appropriate or convenient forum; |
| (b) | another court of competent jurisdiction has made a determination in respect of the same matter; or |
| (c) | litigation is pending in respect of the same matter in another jurisdiction. |
Proceedings may be stayed in the Cayman Islands if concurrent proceedings in respect of the same matter are or have been commenced in another jurisdiction.
| 17. | Where a document provides for an exclusive jurisdiction clause submitting to a jurisdiction of a court other than a court in the Cayman Islands, notwithstanding any provision of the document providing for the exclusive jurisdiction of a court other than the courts in the Cayman Islands, a court in the Cayman Islands may, if it is satisfied that it is just and equitable to allow such proceedings to continue in the Cayman Islands: |
| (a) | decline to stay proceedings issued in contravention of such provision; or |
| (b) | grant leave to serve Cayman Islands proceedings out of the Cayman Islands. |
| 18. | If: |
| (a) | the performance of the Transaction Documents or the consummation of the transactions contemplated thereby constitutes an arrangement which facilitates the retention or control by or on behalf of another person of terrorist property (as defined in the Terrorism Act) by concealment, by removal from the jurisdiction or by transfer to nominees; or |
| (b) | any party to the Transaction Documents: |
| (i) | by any means directly or indirectly knowingly provides or collects property (as defined under the Terrorism Act) or attempts to do so, with the intention that the property should be used or in the knowledge that it will be used in whole or in part: |
| (A) | in order to carry out an act of terrorism (as defined under the Terrorism Act); |
| (B) | by a terrorist (as defined under the Terrorism Act) to facilitate the first-mentioned person’s activities related to acts of terrorism or membership in a terrorist organisation (as defined under the Terrorism Act); or |
| WalkerS | page 9 |
| (C) | by a terrorist organisation; |
| (ii) | uses property for the purposes of terrorism; |
| (iii) | possesses property and intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of the financing of acts of terrorism, terrorists or terrorist organisations; |
| (iv) | possesses or acquires property which that person knows or has reasonable cause to suspect has been used, directly or indirectly, in the commission of the financing of acts of terrorism, terrorists or terrorist organisations; |
| (v) | acquires property as a result of or in connection with acts of terrorism; or |
| (vi) | enters into or becomes concerned in an arrangement as a result of which terrorist property is made available or is to be made available to another and knows or has reasonable cause to suspect that property will or may be used for the purposes of the financing of acts of terrorism, terrorists or terrorist organisations, |
then an offence may be committed under the Terrorism Act.
| 19. | We render no opinion as to the specific enforcement as against the Company of covenants granted by the Company to do or to omit to do any action or other matter which is reserved by applicable law or the Company's constitutional documents to the Company's members or any other person. |
| 20. | We express no opinion on and our opinions are subject to the effect, if any, of any provisions of any Transaction Document that relies upon financial or numerical computation. |
| 21. | The Company may be required to submit (or to cause to be submitted on its behalf) a notification and report to the Cayman Islands Department for International Tax Cooperation to ensure compliance with any obligations it may have under the laws of the Cayman Islands relating to the automatic exchange of financial account information. |
Based upon and subject to the foregoing, we are of the opinion that:
| 1. | The Company has been duly incorporated and is a validly existing exempted company with limited liability under the laws of the Cayman Islands. |
| 2. | With respect to Company Debt Securities to be issued under the Indenture, when (i) the board of directors of the Company (the "Company Board") has taken all necessary corporate action to approve the issuance and terms of such Company Debt Securities, the terms of the offering thereof and related matters; (ii) such Company Debt Securities have been duly executed by a person or persons authorised to execute the same, authenticated, issued and delivered in accordance with the provisions of the Indenture and in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Company Board (a "Purchase Agreement"); and (iii) upon payment of the consideration provided therefor in the Purchase Agreement, such Company Debt Securities will be duly authorised by the Company and will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their respective terms. |
| WalkerS | page 10 |
We hereby consent to the use of our name in the prospectus constituting a part of the 2023 Registration Statement and in any prospectus supplements related thereto under the heading "Enforcement of Civil Liabilities – Cayman Islands" and "Validity of the Securities" as counsel for the Company who have passed on the enforcement of civil liabilities in the Cayman Islands and the validity of the Company Debt Securities being registered by the 2023 Registration Statement, and to the use of this opinion as an exhibit to the 2023 Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
This opinion is limited to the matters referred to herein and shall not be construed as extending to any other matter or document not referred to herein. This opinion is given solely for your benefit and the benefit of your legal advisers acting in that capacity in relation to this transaction and may not be relied upon by any other person without our prior written consent.
This opinion shall be construed in accordance with the laws of the Cayman Islands.
Yours faithfully
/s/ Walkers (CAYMAN) LLP
Walkers (CAYMAN) LLP
Exhibit 5.3
April 13, 2023
|
Vale S.A. Brazil
Vale Overseas Limited Camana Bay, Grand Cayman KY1-9005 Cayman Islands |
Ladies and Gentlemen:
We have acted as special United States counsel to Vale S.A., a corporation (sociedade por ações) organized under the laws of the Federative Republic of Brazil (“Vale”), and Vale Overseas Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Vale Overseas”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form F-3 (the “Registration Statement”) relating to the offering from time to time, in one or more series, of (i) debt securities of Vale (the “Vale Securities”) and (ii) debt securities of Vale Overseas guaranteed by Vale (the “Vale Overseas Securities” and, together with the Vale Securities, the “Securities”). The Securities being registered under the Registration Statement will be offered on a continuous or delayed basis pursuant to the provisions of Rule 415 under the Securities Act.
Unless otherwise provided in any prospectus supplement forming a part of the Registration Statement relating to a particular series of Securities, the Vale Securities are to be issued under an indenture dated as of August 4, 2021 (the “Vale Indenture”) between Vale and The Bank of New York Mellon (the “Vale Trustee”), and the Vale Overseas Securities are to be issued under the Amended and Restated Indenture dated as of August 4, 2021 (the “Vale Overseas Indenture”) among Vale Overseas, Vale and The Bank of New York Mellon, as trustee (the “Vale Overseas Trustee”). Pursuant to the Vale Overseas Indenture, Vale will unconditionally guarantee all of Vale Overseas’ obligations under the Vale Overseas Securities (the “Guarantees”).
In arriving at the opinions expressed below, we have reviewed the following documents:
| (a) | the Registration Statement and the documents incorporated by reference therein; and |
Vale S.A. |
| (b) | an executed copy of each of the Vale Indenture and the Vale Overseas Indenture, each filed as an exhibit to the Registration Statement. |
We have also reviewed the originals or copies certified or otherwise identified to our satisfaction of such other documents, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified (i) the accuracy as to factual matters of each document we have reviewed and (ii) that the Securities will conform to the forms thereof that we have reviewed.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
1. The Vale Securities to be issued under the Vale Indenture will be valid, binding and enforceable obligations of Vale, entitled to the benefits of the Vale Indenture.
2. The Vale Overseas Securities to be issued under the Vale Overseas Indenture will be valid, binding and enforceable obligations of Vale Overseas, entitled to the benefits of the Vale Overseas Indenture.
3. The Guarantees to be issued under the Vale Overseas Indenture will be valid, binding and enforceable obligations of Vale, entitled to the benefits of the Vale Overseas Indenture.
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of Vale or Vale Overseas, (a) we have assumed that each of Vale and Vale Overseas, as the case may be, and each other party to such agreement or obligation has satisfied or, prior to the issuance of the Securities, will satisfy those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to Vale or Vale Overseas regarding matters of the federal law of the United States of America or the law of the State of New York that in our experience normally would be applicable to general business entities in relation to transactions of the type contemplated in the Vale Indenture, the Vale Overseas Indenture and the Securities), (b) such opinions are subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity and (c) such opinions are subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.
In rendering the opinions expressed in paragraphs 1, 2 and 3 above, we have assumed that each series of Securities will be issued with an original aggregate principal amount (or, in the case of any Securities issued at original issue discount, an aggregate issue price) of US$2,500,000 or more.
Vale S.A. |
We have further assumed that (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and comply with all applicable laws; (ii) the Registration Statement will be effective and will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement; (iii) the terms of the Securities will conform to the forms thereof contained in the Vale Indenture and the Vale Overseas Indenture, as applicable, and will not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon, or violate any requirement or restriction imposed by any court or governmental body having jurisdiction over, in the case of the Vale Securities, Vale, and, in the case of the Vale Overseas Securities, Vale or Vale Overseas; (iv) the Securities will be issued, sold and delivered to, and paid for by, the purchasers at the price specified in, and in accordance with the terms of, an agreement or agreements duly authorized, executed and delivered by the parties thereto; (v) Vale and, in the case of the Vale Overseas Securities, Vale Overseas will authorize the offering and issuance of the Securities and will authorize, approve and establish the final terms and conditions thereof and will enter together with the Vale Trustee or the Vale Overseas Trustee, as applicable, into any necessary supplemental indenture relating to the Securities and will take any other appropriate additional corporate action; and (vi) certificates, if required, representing the Securities will be duly executed and delivered and, to the extent required by the Vale Indenture and the Vale Overseas Indenture, as applicable, duly authenticated and countersigned.
We express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any action relating to the Securities where jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 does not exist.
In addition, we note that (a) the enforceability in the United States of the waiver in Section 1.14 of the Vale Indenture and the Vale Overseas Indenture by each of Vale and Vale Overseas of any immunities from court jurisdiction and from legal process is subject to the limitations imposed by the U.S. Foreign Sovereign Immunities Act of 1976 and (b) the designation in Section 1.14 of the Vale Indenture and the Vale Overseas Indenture of the U.S. federal courts located in the Borough of Manhattan, City of New York as the venue for actions or proceedings relating to the Vale Indenture, the Vale Overseas Indenture, the Securities and the Guarantees is (notwithstanding the waiver in Section 1.14) subject to the power of such courts to transfer actions pursuant to 28 U.S.C. § 1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such actions or proceedings.
With respect to any Securities that may be issued in a currency other than U.S. dollars, we note that by statute New York provides that a judgment or decree rendered in a currency other than the currency of the United States shall be converted into U.S. dollars at the rate of exchange prevailing on the date of entry of the judgment or decree. There is no corresponding Federal statute and no controlling Federal court decision on this issue. Accordingly, we express no opinion as to whether a Federal court would award a judgment in a currency other than U.S. dollars or, if it did so, whether it would order conversion of the judgment into U.S. dollars.
Vale S.A. |
In addition, we note that the waiver of defenses relating to the Guarantees in Article 12 of the Vale Overseas Indenture may be ineffective to the extent that any such defense involves a matter of public policy in New York (such as reflected in New York’s anti-champerty statute).
The foregoing opinions are limited to the federal law of the United States of America and the law of the State of New York.
We hereby consent to the filing of this opinion as Exhibit 5.3 to the Registration Statement and to the reference to this firm in the prospectus constituting a part of the Registration Statement and in any prospectus supplements related thereto under the heading “Validity of the Securities” as counsel for Vale and Vale Overseas who have passed on the validity under New York law of the Securities being registered by the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. We assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
Very truly yours,
CLEARY GOTTLIEB STEEN & HAMILTON LLP
By: /s/ Juan G. Giráldez
Juan G. Giráldez, a Partner
Consent of independent registered
public accounting firm
We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of Vale S.A. and Vale Overseas Limited of our report dated February 16, 2023 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Vale S.A.’s Annual Report on Form 20-F for the year ended December 31, 2022. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
Rio de Janeiro, April 13, 2023
/s/ PricewaterhouseCoopers Auditores Independentes Ltda.
PricewaterhouseCoopers
Auditores Independentes Ltda
To the Board of Directors of
Vale S.A.
CONSENT OF QUALIFIED PERSON
I, Charlie Buck, in connection with the Registration Statement on Form F-3 of Vale S.A. filed on or about the date hereof (the “Registration Statement”), hereby consent to:
| a) | the incorporation by reference in the Registration Statement of Vale’s Annual Report on Form 20-F for the year ended December 31, 2022 (the “Annual Report”) and the use of the technical report titled “Technical Report Summary for Ontario Operations” (the “Technical Report”), filed as an exhibit to and referenced in the Annual Report; and |
| b) | the references to my name, including my status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the U.S. Securities and Exchange Commission) in the Registration Statement. |
I was responsible for authoring, and this consent pertains to, Sections 1.1, 1.2, 1.10, 1.14, 1.22; 2; 10; 14; 22.1, 22.9, 22.13, 22.20; 23; 24; 25 of the Technical Report.
I further consent to the incorporation by reference of this consent into any registration statement or post-effective amendment filed pursuant to Rule 462(b) or Rule 462(e) under the Securities Act of 1933, as amended, with respect to the securities registered in the Registration Statement.
Dated: 23 March 2023
/s/ Charlie Buck
_________________________________________________________________________
Charlie Buck
Manager-Milling and Technology North Atlantic
| |
To the Board of Directors of
Vale S.A.
CONSENT OF QUALIFIED PERSON
I, Tiffany Dube, in connection with the Registration Statement on Form F-3 of Vale S.A. filed on or about the date hereof (the “Registration Statement”), hereby consent to:
| a) | the incorporation by reference in the Registration Statement of Vale’s Annual Report on Form 20-F for the year ended December 31, 2022 (the “Annual Report”) and the use of the technical report titled “Technical Report Summary for Ontario Operations” (the “Technical Report”), filed as an exhibit to and referenced in the Annual Report; and |
| b) | the references to my name, including my status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the U.S. Securities and Exchange Commission) in the Registration Statement. |
I was responsible for authoring, and this consent pertains to, Sections 1.1, 1.2, 1.12,1.13, 1.15, 1.16, 1.17.2, 1.17.4, 1.18, 1.19, 1.20, 1.21, 1.22; 2; 12; 13.1, 13.4, 13.5, 13.6, 13.7, 13.8, 13.9, 13.10, 13.11, 13.12; 15.1, 15.2, 15.3, 15.5, 15.7, 15.8, 15.9; 16; 17.3, 17.4, 17.5; 18; 19; 22.1, 22.11, 22.12, 22.14, 22.15, that portion of 22.16 that pertains to closure and social considerations, 22.17, 22.18, 22.20, 22.21; 23; 24; 25, that portion of 22.16 that pertains to social considerations, 22.20; 23; 24; and 25 of the Technical Report.
I further consent to the incorporation by reference of this consent into any registration statement or post-effective amendment filed pursuant to Rule 462(b) or Rule 462(e) under the Securities Act of 1933, as amended, with respect to the securities registered in the Registration Statement.
Dated: 23 March 2023
/s/ Tiffany Dube
_________________________________________________________________________
Tiffany Dube
Manager–Long-Term Planning and Mine Design North Atlantic
| 2 |
| |
To the Board of Directors of
Vale S.A.
CONSENT OF QUALIFIED PERSON
I, Darren Hodder, in connection with the Registration Statement on Form F-3 of Vale S.A. filed on or about the date hereof (the “Registration Statement”), hereby consent to:
| a) | the incorporation by reference in the Registration Statement of Vale’s Annual Report on Form 20-F for the year ended December 31, 2022 (the “Annual Report”) and the use of the technical report titled “Technical Report Summary for Ontario Operations” (the “Technical Report”), filed as an exhibit to and referenced in the Annual Report; and |
| b) | the references to my name, including my status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the U.S. Securities and Exchange Commission) in the Registration Statement. |
I was responsible for authoring, and this consent pertains to, Sections 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.9, 1.11, that portion of 17.1.4 that pertains to social considerations, 1.22; 2; 3; 4; 5, 6; 7.1, 7.2; 8; 9; 11; 17.5; 20; 21; 22.1, 22.2, 22.3, 22.4, 22.5, 22.6, 22.7, 22.8, that portion of 22.16 that pertains to social considerations, 22.20; 23; 24; and 25 of the Technical Report.
I further consent to the incorporation by reference of this consent into any registration statement or post-effective amendment filed pursuant to Rule 462(b) or Rule 462(e) under the Securities Act of 1933, as amended, with respect to the securities registered in the Registration Statement.
Dated: 23 March 2023
/s/ Darren Hodder
_________________________________________________________________________
Darren Hodder
Manager–Long Term Geology and In-Mine Exploration North Atlantic
| 3 |
| |
To the Board of Directors of
Vale S.A.
CONSENT OF QUALIFIED PERSON
I, Lisa Lanteigne, in connection with the Registration Statement on Form F-3 of Vale S.A. filed on or about the date hereof (the “Registration Statement”), hereby consent to:
| a) | the incorporation by reference in the Registration Statement of Vale’s Annual Report on Form 20-F for the year ended December 31, 2022 (the “Annual Report”) and the use of the technical report titled “Technical Report Summary for Ontario Operations” (the “Technical Report”), filed as an exhibit to and referenced in the Annual Report; and |
| b) | the references to my name, including my status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the U.S. Securities and Exchange Commission) in the Registration Statement. |
I was responsible for authoring, and this consent pertains to, Sections 1.1, 1.2, 1.17.1, 1.22; 2; Chapter 15.6; 17.l, 17.2; 22.1, that portion of 22.16 that pertains to environmental considerations, 22.20; 23; 24; 25 of the Technical Report..
I further consent to the incorporation by reference of this consent into any registration statement or post-effective amendment filed pursuant to Rule 462(b) or Rule 462(e) under the Securities Act of 1933, as amended, with respect to the securities registered in the Registration Statement.
Dated: 23 March 2023
/s/ Lisa Lanteigne
_________________________________________________________________________
Lisa Lanteigne
Manager-Environment North Atlantic
| 4 |
| |
To the Board of Directors of
Vale S.A.
CONSENT OF QUALIFIED PERSON
I, Xiaolin (Mike) Yao, in connection with the Registration Statement on Form F-3 of Vale S.A. filed on or about the date hereof (the “Registration Statement”), hereby consent to:
| a) | the incorporation by reference in the Registration Statement of Vale’s Annual Report on Form 20-F for the year ended December 31, 2022 (the “Annual Report”) and the use of the technical report titled “Technical Report Summary for Ontario Operations” (the “Technical Report”), filed as an exhibit to and referenced in the Annual Report; and |
| b) | the references to my name, including my status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the U.S. Securities and Exchange Commission) in the Registration Statement. |
I was responsible for authoring, and this consent pertains to, Sections 1.1, 1.2, those portions of 1.13.1 and 1.13.2 that pertain to geotechnical and hydrological considerations, 1.22; 2; 7.3, 7.4; 13.2, 13.3; 25.1, that portion of 25.12 that pertains to geotechnical and hydrological considerations, 22.20; 23; 24; 25of the Technical Report
I further consent to the incorporation by reference of this consent into any registration statement or post-effective amendment filed pursuant to Rule 462(b) or Rule 462(e) under the Securities Act of 1933, as amended, with respect to the securities registered in the Registration Statement.
Dated: 23 March 2023
/s/ Xiaolin (Mike) Yao
_________________________________________________________________________
Xiaolin (Mike) Yao
Manager–Rock Engineering North Atlantic
| 5 |
| |
To the Board of Directors of
Vale S.A.
CONSENT OF QUALIFIED PERSON
I, Monica Ansah-Sam, in connection with the Registration Statement on Form F-3 of Vale S.A. filed on or about the date hereof (the “Registration Statement”), hereby consent to:
| a) | the incorporation by reference in the Registration Statement of Vale’s Annual Report on Form 20-F for the year ended December 31, 2022 (the “Annual Report”) and the use of the technical report titled “Technical Report Summary for Ontario Operations” (the “Technical Report”), filed as an exhibit to and referenced in the Annual Report; and |
| b) | the references to my name, including my status as an expert or “qualified person” (as defined in Subpart 1300 of Regulation S-K promulgated by the U.S. Securities and Exchange Commission) in the Registration Statement. |
I was responsible for authoring, and this consent pertains to, Sections 1.1, 1.2, that portion of 1.15 that pertains to tailings storage and tailings storage facilities, 1.22; 2; 15.4; 22.1 and that portion of 22.14 that pertains to tailings storage and tailings storage facilities, 22.20; 23; 24; 25 of the Technical Report.
I further consent to the incorporation by reference of this consent into any registration statement or post-effective amendment filed pursuant to Rule 462(b) or Rule 462(e) under the Securities Act of 1933, as amended, with respect to the securities registered in the Registration Statement.
Dated: 23 March 2023
/s/ Monica Ansah-Sam
_________________________________________________________________________
Monica Ansah-Sam
Manager–Tailings and Dams North Atlantic
| 6 |
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
| New York | 13-5160382 | |
|
(State of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| 240 Greenwich Street, Floor 7 East, New York, N.Y. | 10286 | |
| (Address of principal executive offices) | (Zip code) | |
VALE S.A.
(Exact name of obligors as specified in their charters)
| The Federative Republic of Brazil | Not Applicable | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
Praia de Botafogo 186 – offices 1101, 1701, and 1801 - Botafogo 22250-145 Rio de Janeiro, RJ, Brazil (Address of registrants’ principal executive offices) |
(Zip code) |
Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the Trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
|
Name |
Address | |
| Superintendent of Banks of the State of New York |
One State Street, New York, N.Y. 10004, and One Commerce Plaza, Albany, N.Y. 12257 | |
| Federal Reserve Bank of New York |
33 Liberty Street, New York, N.Y. 10045 | |
| Federal Deposit Insurance Corporation |
550 17th Street, N.W. Washington, D.C. 20429 | |
| The Clearing House Association L.L.C. | New York, New York 10005 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor and any Guarantor. |
If the obligor or any guarantor is an affiliate of the trustee, describe each such affiliation.
None.
| 3-15. | Pursuant to General Instruction B of the Form T-1, no responses are included for Items 3-15 of this Form T-1 because, to the best of the Trustee’s knowledge, neither the obligor nor any guarantor is in default under any Indenture for which the Trustee acts as Trustee and the Trustee is not a foreign trustee as provided under Item 15 . |
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T 1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-154173).
6. The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152735).
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on April 3, 2023.
| THE BANK OF NEW YORK MELLON | |||||
| By: |
/s/Francine Kincaid | ||||
| Name: | Francine Kincaid | ||||
| Title: | Vice President | ||||
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2022, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
ASSETS |
Dollar amounts in thousands |
| Cash and balances due from depository institutions: | |
| Noninterest-bearing balances and currency and coin | 4,164,000 |
| Interest-bearing balances | 101,356,000 |
| Securities: | |
| Held-to-maturity securities | 56,192,000 |
| Available-for-sale debt securities | 86,291,000 |
| Equity securities with readily determinable fair values not held for trading | 1,000 |
| Federal funds sold and securities purchased under agreements to resell: | |
| Federal funds sold in domestic offices | 0 |
| Securities purchased under agreements to resell | 10,070,000 |
| Loans and lease financing receivables: | |
| Loans and leases held for sale | 0 |
| Loans and leases held for investment | 31,535,000 |
| LESS: Allowance for loan and lease losses | 154,000 |
| Loans and leases held for investment, net of allowance | 31,381,000 |
| Trading assets | 4,906,000 |
| Premises and fixed assets (including capitalized leases) | 2,810,000 |
| Other real estate owned | 2,000 |
| Investments in unconsolidated subsidiaries and associated companies | 1,286,000 |
| Direct and indirect investments in real estate ventures | 0 |
| Intangible assets | 6,937,000 |
| Other assets |
19,250,000 |
| Total assets |
324,646,000 |
| LIABILITIES | |
| Deposits: | |
| In domestic offices | 181,486,000 |
| Noninterest-bearing | 76,243,000 |
| Interest-bearing | 105,243,000 |
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | 100,047,000 |
| Noninterest-bearing | 5,807,000 |
| Interest-bearing | 94,240,000 |
| Federal funds purchased and securities sold under agreements to repurchase: | |
| Federal funds purchased in domestic offices | 0 |
|
Securities sold under agreements to repurchase |
3,887,000 |
| Trading liabilities | 2,867,000 |
| Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
1,171,000 |
| Not applicable | |
| Not applicable | |
| Subordinated notes and debentures | 0 |
| Other liabilities |
8,438,000 |
| Total liabilities |
297,896,000 |
| EQUITY CAPITAL | |
| Perpetual preferred stock and related surplus | 0 |
| Common stock | 1,135,000 |
| Surplus (exclude all surplus related to preferred stock) | 11,968,000 |
| Retained earnings | 18,016,000 |
| Accumulated other comprehensive income | -4,369,000 |
| Other equity capital components | 0 |
| Total bank equity capital | 26,750,000 |
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 |
| Total equity capital |
26,750,000 |
| Total liabilities and equity capital |
324,646,000 |
I, Dermot McDonogh, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Dermot McDonogh
Chief Financial Officer
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
Robin A. Vince Frederick O. Terrell Joseph J. Echevarria
|
 |
Directors |
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
| New York | 13-5160382 | |
|
(State of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| 240 Greenwich Street, Floor 7 East, New York, N.Y. | 10286 | |
| (Address of principal executive offices) | (Zip code) | |
VALE OVERSEAS LIMITED
(Exact name of obligors as specified in their charters)
| The Federative Republic of Brazil | Not Applicable | |
|
(State or other jurisdiction of incorporation or organization)
Praia de Botafogo 186 – offices 1101, 1701, and 1801 - Botafogo 22250-145 Rio de Janeiro, RJ, Brazil (Address of registrants’ principal executive offices) |
(I.R.S. employer identification no.)
(Zip code) |
VALE S.A.
(Exact name of obligors as specified in their charters)
| The Federative Republic of Brazil | Not Applicable | |
|
(State or other jurisdiction of incorporation or organization)
Praia de Botafogo 186 – offices 1101, 1701, and 1801 - Botafogo 22250-145 Rio de Janeiro, RJ, Brazil (Address of registrants’ principal executive offices) |
(I.R.S. employer identification no.)
(Zip code) |
Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the Trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
|
Name |
Address | |
| Superintendent of Banks of the State of New York |
One State Street, New York, N.Y. 10004, and One Commerce Plaza, Albany, N.Y. 12257 | |
| Federal Reserve Bank of New York |
33 Liberty Street, New York, N.Y. 10045 | |
| Federal Deposit Insurance Corporation |
550 17th Street, N.W. Washington, D.C. 20429 | |
| The Clearing House Association L.L.C. | New York, New York 10005 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor and any Guarantor. |
If the obligor or any guarantor is an affiliate of the trustee, describe each such affiliation.
None.
| 3-15. | Pursuant to General Instruction B of the Form T-1, no responses are included for Items 3-15 of this Form T-1 because, to the best of the Trustee’s knowledge, neither the obligor nor any guarantor is in default under any Indenture for which the Trustee acts as Trustee and the Trustee is not a foreign trustee as provided under Item 15 . |
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T 1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-154173).
6. The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152735).
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on April 3, 2023.
| THE BANK OF NEW YORK MELLON | |||||
| By: |
/s/ Francine Kincaid | ||||
| Name: | Francine Kincaid | ||||
| Title: | Vice President | ||||
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2022, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
ASSETS |
Dollar amounts in thousands |
| Cash and balances due from depository institutions: | |
| Noninterest-bearing balances and currency and coin | 4,164,000 |
| Interest-bearing balances | 101,356,000 |
| Securities: | |
| Held-to-maturity securities | 56,192,000 |
| Available-for-sale debt securities | 86,291,000 |
| Equity securities with readily determinable fair values not held for trading | 1,000 |
| Federal funds sold and securities purchased under agreements to resell: | |
| Federal funds sold in domestic offices | 0 |
| Securities purchased under agreements to resell | 10,070,000 |
| Loans and lease financing receivables: | |
| Loans and leases held for sale | 0 |
| Loans and leases held for investment | 31,535,000 |
| LESS: Allowance for loan and lease losses | 154,000 |
| Loans and leases held for investment, net of allowance | 31,381,000 |
| Trading assets | 4,906,000 |
| Premises and fixed assets (including capitalized leases) | 2,810,000 |
| Other real estate owned | 2,000 |
| Investments in unconsolidated subsidiaries and associated companies | 1,286,000 |
| Direct and indirect investments in real estate ventures | 0 |
| Intangible assets | 6,937,000 |
| Other assets |
19,250,000 |
| Total assets |
324,646,000 |
| LIABILITIES | |
| Deposits: | |
| In domestic offices | 181,486,000 |
| Noninterest-bearing | 76,243,000 |
| Interest-bearing | 105,243,000 |
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | 100,047,000 |
| Noninterest-bearing | 5,807,000 |
| Interest-bearing | 94,240,000 |
| Federal funds purchased and securities sold under agreements to repurchase: | |
| Federal funds purchased in domestic offices | 0 |
|
Securities sold under agreements to repurchase |
3,887,000 |
| Trading liabilities | 2,867,000 |
| Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
1,171,000 |
| Not applicable | |
| Not applicable | |
| Subordinated notes and debentures | 0 |
| Other liabilities |
8,438,000 |
| Total liabilities |
297,896,000 |
| EQUITY CAPITAL | |
| Perpetual preferred stock and related surplus | 0 |
| Common stock | 1,135,000 |
| Surplus (exclude all surplus related to preferred stock) | 11,968,000 |
| Retained earnings | 18,016,000 |
| Accumulated other comprehensive income | -4,369,000 |
| Other equity capital components | 0 |
| Total bank equity capital | 26,750,000 |
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 |
| Total equity capital |
26,750,000 |
| Total liabilities and equity capital |
324,646,000 |
I, Dermot McDonogh, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Dermot McDonogh
Chief Financial Officer
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
| Robin A. Vince Frederick O. Terrell Joseph J. Echevarria |
|
Directors |