exhibit04_10.htm - Generated by SEC Publisher for SEC Filing









Exhibit 4.10



 


TRANSITIONAL AGREEMENT


 


This Transitional Agreement (“Transitional Agreement”), dated November 21, 2014, is entered into among: 


Companhia Siderúrgica Nacional, a publicly-held corporation (sociedade anônima de capital aberto) incorporated, organized and existing under the Laws of Brazil, having its registered office at the Municipality of São Paulo, State of São Paulo, at Av. Brigadeiro Faria Lima, 3400 – 20th floor, enrolled with the Federal Taxpayers’ Registry (CNPJ/MF) under N. 33.042.730/0001-04, herein represented pursuant to its by-laws (“CSN”);


Brazil Japan Iron Ore Corporation, a company duly organized and existing under the Laws of Japan, with its head office located at Itochu Building, 13th Floor, 5-1, Kita-Aoyama, 2-chome, Minato-ku, Tokyo, 107-0061, Japan (“BJIOC”);


POSCO, a company incorporated, organized and existing under the Laws of Korea, having its registered office at POSCO Center, 440 Teheran-ro, Gangnam-gu, Seoul, 135-777, Korea (“POSCO”); 


China Steel Corporation, a corporation organized and existing under the Laws of Republic of China, with head office located at 88 Chenggong, 2nd Roard, Qianzhen, Kaohsiung 80661, Taiwan, Republic of China (“CSC”); 


ITOCHU Corporation, a company incorporated, organized and existing under the Laws of Japan, having its principal office at 5-1, Kita-Aoyama 2-chome, Minato-ku, Tokyo, 107-8077, Japan (“Itochu”);


JFE Steel Corporation, a company incorporated, organized and existing under the Laws of Japan, having its registered office at 2-3, Uchisaiwai-cho 2-chome, Chiyoda-ku, Tokyo, 100-0011, Japan (“JFE”);


Kobe Steel, Ltd., a company incorporated, organized and existing under the Laws of Japan, having its registered office at 2-4, Wakinohama-Kaigandori 2-chome, Chuo-ku, Kobe, Hyogo, 651-8585, Japan (“Kobe”);


Nisshin Steel Co., Ltd., a company incorporated, organized and existing under the Laws of Japan, having its registered office at 4-1, Marunouchi 3-chome, Chiyoda-ku, Tokyo 100-8366, Japan (“Nisshin”); 


(provided that BJIOC, POSCO, CSC, Itochu, JFE, Kobe and Nisshin are each individually referred to as “JKTC Party” and collectively referred to as “JKTC” and, jointly with CSN, as “Investors”); 


Congonhas Minérios S.A., a closely-held corporation (sociedade anônima de capital fechado) incorporated, organized and existing under the Laws of Brazil, having its 

registered office at the Municipality of
Congonhas, State of Minas Gerais, at Estrada Casa de Pedra, without number,
part, enrolled with the Federal Taxpayers’ Registry (CNPJ/MF) under N.
08.902.291/0001-15, herein represented pursuant to its by-laws (“Congonhas
Minérios”), and 




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Nacional
Minérios S.A., a closely-held
corporation (sociedade anônima de capital fechado) incorporated,
organized and existing under the Laws of Brazil, having its registered office at
the Municipality of Congonhas, State of Minas Gerais, at Logradouro Casa de
Pedra, without number, part, enrolled with the Federal Taxpayers’ Registry
(CNPJ/MF) under N. 08.446.702/0001-05, herein represented pursuant to its
by-laws (“Namisa”). 


(Investors,
Congonhas Minérios and Namisa individually referred to as “Party” and
collectively referred to as “Parties”)


WITNESSETH:


WHEREAS the
Parties (other than Congonhas Minérios) have entered into (i) the Share
Purchase Agreement dated as of October 21, 2008 (as amended from time to time,
the “Namisa SPA”); (ii) the Shareholders’ Agreement of Namisa dated as
of October 21, 2008 (as amended from time to time, the “Namisa SHA”); (iii)
the Beneficiation Agreement dated as of June 30, 2011 (as amended from time to
time, the “Beneficiation Agreement”); and (iv) the operational
agreements listed in Exhibit I (as amended from time to time, the “Operational
Agreements” and, together with the Namisa SPA, the Namisa SHA and the
Beneficiation Agreement the “Existing Agreements”); 


WHEREAS, on this
date, the Investors have entered into (i) an Investment Agreement, whereby they
have agreed on the terms for the consolidation of the assets, rights and
liabilities of the CSN Establishment (as defined in the Investment Agreement)
and of Namisa, by means of the merger of Namisa into Congonhas Minérios and
other related transactions, subject to the fulfillment of certain conditions
precedent (“Investment Agreement”); and (ii) the 7th Amendment
to the Standstill Letter Agreement (as defined in the Investment Agreement); 


            WHEREAS,
in view of the execution of the Investment Agreement, the Parties want to (i) suspend
certain contractual terms and provisions of the Beneficiation Agreement during
the term of this Transitional Agreement and (ii) amend certain provisions of
the Operational Agreements, subject to the terms and conditions provided herein,
in both cases as from the Date of Effectiveness (as defined in the Investment
Agreement), 


NOW, THEREFORE,
the Parties agree as follows:


1.                 
SCOPE


 


1.1.
Operational Agreements. Subject to Section 1.1.4 below, the
Parties hereby agree to amend the Operational Agreements as of the Date of
Effectiveness in order to
cancel the accrual and payment of interest over the
advance payments provided therein (“Interest on Prepayment”), as follows (“Amendments
to the Operational Agreements”): 


 





 







 


1.1.1.
Port Agreement. The Parties agree to exclude Clauses 9.3 and 9.3.1. (and
any references thereto) of the Port Agreement. For the avoidance of doubt, in
the benefit of any possible cross-reference, Clause 9.4 of the Port Services
Agreements shall remain numbered as Clause 9.4.


 


1.1.2.
Low Silica Contract. The Parties agree to exclude Clauses 5.3 and 5.3.1.
(and any references thereto) of the Low Silica Contract. For the avoidance of
doubt, in the benefit of any possible cross-reference, Clause 5.4 of the Low
Silica Contract shall remain numbered as Clause 5.4.


 


1.1.3.
High Silica Contract. The Parties agree to exclude Clauses 5.3 and
5.3.1. (and any references thereto) of the High Silica Contract. For the
avoidance of doubt, in the benefit of any possible cross-reference, Clause 5.4
of the High Silica Contract shall remain numbered as Clause 5.4.


 


1.1.4.
Resolutory Condition. The non-occurrence of the Merger, for any reason
whatsoever, including but not limited to any events out of control of the
Parties, by the Drop Dead Date or the early termination of the Investment
Agreement, whichever occurs first, shall be considered as a resolutory
condition (condição resolutiva) of the Amendments to the Operational
Agreements under Section 127 and other applicable provisions of Law No. 10,406
of January 10th, 2002 (the “Brazilian Civil Code”) (“Resolutory
Condition”). In view of that, if, for any reason, the Resolutory Condition occurs,
(i) all effects of the Amendments to the Operating Agreements shall be
cancelled as from the Date of Effectiveness as if the Amendments to the
Operational Agreements had never existed; (ii) the rights and obligations of
the parties arising out of the Operational Agreements will resume ex tunc
as from the Date of Effectiveness as if the Amendments to the Operational Agreements
had never existed; and (iii) all of the amount corresponding to the Interest on
Prepayment that would have been recognized between the Date of Effectiveness and
the date the Resolutory Condition occurs, duly adjusted by the variation of the
Reference Rate – TR between the original due date (without giving effect to the
Amendments to the Operational Agreements) and the date the Resolutory Condition
occurs,  will be recognized as interest income, of which (a) 66% will be added
to the prepayment balance and (b) 34% will be paid in cash by CSN to Namisa until
at least three days before the deadline established by law for the payment of
the corporate income taxes due by Namisa related to the Interest on Prepayment
described above. The amounts to be recognized as interest income and against
the prepayment balance or paid in accordance with this item shall be calculated
retroactively on a monthly basis.


 


1.1.4.1. In view of the above, upon the
occurrence of the Resolutory Condition, all Parties further agree to adopt all
the procedures and take all the measures necessary in order to assure that the
Interest on Prepayment will be reinstated, on a retroactive basis, from
December 12, 2014.






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1.1.4.2. For purposes of item (iii) of Section
1.1.4, the “Reference Rate – TR” means the official reference rate issued by
the Central Bank of Brazil, based on bank deposit certificates and receipts (CDB/RDB),
encompassing multiple banks with commercial or investment portfolios,
commercial banks, investment banks and savings banks, in accordance with
Resolution 3.354, dated March 31, 2006, as amended.


 


1.2.      Beneficiation
Agreement. The contractual obligations of CSN and Namisa under the
Beneficiation Agreement (whether outstanding or not) and any effect thereof
shall be suspended during the term of this Transitional Agreement. 


 


1.3.           
Dividends
in Namisa.
During the term of this Transitional Agreement, and only in relation to fiscal
years which have ended within the period during which this Transitional Agreement
remains in force, the Investors shall not oppose to the adoption of the same
procedures adopted in the Namisa’s Ordinary Shareholders Meeting of March 28, 2014,
with respect to any distribution of net profits in the next Ordinary
Shareholders Meetings. The Closing Dividends and the Interim Dividends shall be
declared and paid in accordance with the provisions of the Investment Agreement,
subject to the conditions therein provided.


 


1.4.           
No
Waiver.
The  Parties acknowledge that CSN and JKTC Parties reserve their respective arguments,
claims and positions in relation to (i) the Interest on Prepayment (accrued
and/or to be accrued); and (ii) their respective rights and obligations under
the Beneficiation Agreement. This Transitional Agreement is not, and shall not
be construed as, a waiver or a modification of any of the rights of the Parties
hereto under the (1) Existing Agreements and (2) the Standstill Letter Agreement,
nor as an opportunity to cure any event that could result in the exercise of
any remedy provided therein.


 


2.                 
TERM
AND TERMINATION 


 


2.1.           
Term. This Transitional
Agreement is entered into on an unconditional and irrevocable basis, and shall
be effective from the Date of Effectiveness until (i) the Date of the Merger, (ii)
the Drop Dead Date or (iii) the early termination of the Investment Agreement,
whichever occurs first. 


 


2.2.           
Termination. In case any of
the Board Approvals is not obtained by December 12, 2014, the Merger does not
occur by the Drop Dead Date or the Investment Agreement is early terminated in
accordance with its terms, for any reason whatsoever, whichever occurs first, this
Transitional Agreement will be terminated and: (i) the Amendments to the
Operational Agreements shall no longer be effective, and Section 1.1.4
shall apply; (ii) the Beneficiation Agreement will be resumed from the date of
termination of this Transitional Agreement; (iii) the Closing Dividends will
not be paid; and (iv) except as expressly provided for in Section 1.1.4,
no penalty or additional amount of any nature will be
due by any of the Parties to the others, exclusively as a result of the
termination of this Transitional Agreement. 




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2.2.1.
Upon the occurrence of the Merger, the Existing Agreements will be automatically
terminated as a result of the Merger and (i) no amount, claim or adjustment, of
any nature, will be due by one Party to the other under and/or in relation to
these agreements; (ii) the financial / accounting effects of such agreements
shall be neutral for purposes of the Pre-Merger Equity Interest Adjustment, of
the Net Closing Working Capital Cash Adjustment and of the Net Closing Net Debt
Cash Adjustment; and (iii) the Parties will grant each other full release with
regard to any obligations pertaining to the Existing Agreements.


 


3.                 
APPLICABLE
LAW AND ARBITRATION 


 


3.1.           
This
Transitional Agreement and the rights and obligations of the Parties hereunder
and the transactions contemplated hereby shall be governed by, enforced and interpreted
in accordance with, the laws of the Federative Republic of Brazil. 


 


3.2.           
Any
dispute, controversy or claim arising out of or relating to this Transitional
Agreement (“Dispute”) shall be solved by arbitration, in accordance with
the following provisions: 


 


3.2.1.     
The
Dispute shall be finally settled under the Rules of Arbitration of the
International Chamber of Commerce (the “ICC Rules”) in force at the time
of the request for arbitration.


 


3.2.2.     
The
arbitration shall be conducted by 3 (three) arbitrators (“Arbitral Tribunal”),
one nominated by the claimant, another one nominated by the respondent, and the
two (2) party-appointed arbitrators shall designate a third arbitrator, who
shall act as president of the Arbitral Tribunal, within 15 (fifteen) days after
the confirmation of the later-appointed of these two arbitrators. In case there
are multiple parties, whether as claimant or as respondent, the multiple
claimants, jointly, and/or the multiple respondents, jointly, as the case may
be, shall appoint one arbitrator.  If any of the three arbitrators is not
nominated within the time prescribed in the ICC Rules or above, such arbitrator
shall be appointed by the Court of Arbitration of the International Chamber of
Commerce (the “ICC Court”).  


 


3.2.3.     
The
arbitration shall be held in the City of São Paulo, State of São Paulo, Brazil,
where the arbitral award shall be deemed rendered. The arbitration procedure
shall be held in English and in accordance with Brazilian Law, but evidence may
be produced by the Parties in Portuguese without the need of translation. The
Arbitral Tribunal shall not act as amiable compositeurs or decide the
merits of the Dispute ex aequo et bono.


 


3.2.4.     
The
Parties elect the courts of the City of São Paulo, State of São Paulo,
exclusively for granting interim or conservatory measures before the
constitution of the Arbitral Tribunal. Even in
instances where a provisional judicial relief has been sought or obtained, the
merits of the Dispute shall always be decided by the Arbitral Tribunal. For the
avoidance of doubt, among the remedies that may be ordered or awarded by the
Arbitral Tribunal is the remedy of specific performance of contractual
obligations.




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3.2.5.     
Except
for attorney’s fees, which shall be borne individually by each of the Parties
to the arbitration, all expenses, costs and legal fees shall be borne by one or
all Parties, as determined by the Arbitral Tribunal. 


 


3.2.6.     
The
Parties shall keep the confidentiality of each and every information concerning
the arbitration.


 


3.2.7.     
If
one or more Disputes arise under this Transitional Agreement or any other
Transaction Document, then any or all such Disputes may be brought into a
single arbitration. The ICC Court may, at the request of any of the Parties,
consolidate the arbitral proceeding with any other pending arbitral proceeding
involving this Transitional Agreement and/or any other Transaction Document. If
one or more arbitrations are already pending with respect to a Dispute under
any such agreement, then any party to a new dispute or any subsequently filed
arbitration brought under any such agreement may request that such new dispute
or any subsequently filed arbitration be consolidated into any prior pending
arbitration. 


 


3.2.8.     
The
new dispute or subsequently filed arbitration shall be so consolidated,
provided that the ICC Court determines that: (i) the new dispute or
subsequently filed arbitration presents significant issues of law or fact in common
with those in the prior pending arbitration; (ii) no party to the new dispute
or prior pending arbitration would be prejudiced; and (iii) the consolidation
under these circumstances would not result in undue delay for the prior pending
arbitration.  


 


3.2.9.     
The
consolidation order shall be final and binding upon all the Parties involved in
the consolidated proceedings. The arbitrations shall be consolidated into the
arbitration that commenced first. The Parties agree that upon such an order of
consolidation, they will promptly dismiss any arbitration proceeding, the
subject of which has been consolidated into another arbitral proceeding.


 


4.     
MISCELLANEOUS


 


4.1.      Capitalized
Terms. Except as otherwise specifically provided for in this Transitional
Agreement, all the capitalized terms and expressions herein shall have the
meaning ascribed to them in the Investment Agreement.


 


4.2.           
Notices. All notices,
reports, requests, demands and other communications under or in connection with
this Transitional Agreement or any other agreements entered into between the
Investors hereto, in connection with this Transitional Agreement, shall be
written in the English language and shall be sent by registered airmail,
postage prepaid and addressed to the addresses set forth on the first page of this
Transitional
Agreement, and all notices, reports, requests, demands and other
communications shall be deemed to have been given on the date when deposited in
the post. 




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4.2.1.     
Any
Investor may change its address or telex or facsimile number for the purpose of
this Section 4.2 by notice given to the other Parties in the manner set
forth above.


 


4.3.           
Confidentiality. The existence
and content of this Transitional Agreement will be maintained as “Confidential
Information” pursuant to the Investment Agreement.


 


4.4.           
Severability. Should any
provision of this Transitional Agreement or any other agreements entered into between
the Parties hereto in connection with this Transitional Agreement be or become
invalid or unenforceable under any applicable Law or violate any applicable
Law, the remainder of this Transitional Agreement or any of such other
agreements shall be valid and binding as if such provision were not included
therein.


 


4.5.           
Amendments. This Transitional
Agreement may be amended only with the written consent of the Parties. 


 


4.6.           
Counterparts. This Transitional
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


IN
WITNESS WHEREOF, the Parties hereto have caused their duly authorized
representatives to affix their respective signatures on this instrument, on the
day and year first written above.


 


[remainder of this page intentionally left blank]


[signature
pages follow]









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Signature
page of the Transitional Agreement entered into by Companhia Siderúrgica
Nacional, Brazil Japan Iron Ore Corporation, POSCO, China Steel Corporation,
ITOCHU Corporation, JFE Steel Corporation, Kobe Steel, Ltd., Nisshin Steel Co.,
Ltd., Congonhas Minérios S.A and, Nacional Minérios S.A.


 


 


Companhia Siderúrgica Nacional


 


 


 


 


	
  _________________________­­­­­­­­­­­

  By:
  

  Title:

   

  	
  _________________________

  By:
  

  Title:

   

  




 









TEXT_SP/9283989v1/7474/36







 





 





 


Signature page of the
Transitional Agreement entered into by Companhia Siderúrgica Nacional, Brazil
Japan Iron Ore Corporation, POSCO, China Steel Corporation, ITOCHU Corporation,
JFE Steel Corporation, Kobe Steel, Ltd., Nisshin Steel Co., Ltd., Congonhas
Minérios S.A. and, Nacional Minérios S.A.


 


 


Brazil Japan Iron Ore Corporation



 


 


 


 


	
  _________________________­­­­­­­­­­­

  By:
  

  Title:

   

  	
   

  




 









TEXT_SP/9283989v1/7474/36







 





 





 


Signature page of the
Transitional Agreement entered into by Companhia Siderúrgica Nacional, Brazil
Japan Iron Ore Corporation, POSCO, China Steel Corporation, ITOCHU Corporation,
JFE Steel Corporation, Kobe Steel, Ltd., Nisshin Steel Co., Ltd., Congonhas
Minérios S.A. and, Nacional Minérios S.A.


 


 


POSCO 


 


 


 


 


	
  _________________________­­­­­­­­­­­

  By:
  

  Title:

   

  	
   

  




 









TEXT_SP/9283989v1/7474/36







 





 





 


Signature page of the
Transitional Agreement entered into by Companhia Siderúrgica Nacional, Brazil
Japan Iron Ore Corporation, POSCO, China Steel Corporation, ITOCHU Corporation,
JFE Steel Corporation, Kobe Steel, Ltd., Nisshin Steel Co., Ltd., Congonhas
Minérios S.A. and, Nacional Minérios S.A.


 


 


China Steel Corporation 


 


 


 


 


	
  _________________________­­­­­­­­­­­

  By:
  

  Title:

   

  	
   

  











TEXT_SP/9283989v1/7474/36







 





 





 


Signature page of the
Transitional Agreement entered into by among Companhia Siderúrgica Nacional, Brazil
Japan Iron Ore Corporation, POSCO, China Steel Corporation, ITOCHU Corporation,
JFE Steel Corporation, Kobe Steel, Ltd., Nisshin Steel Co., Ltd., Congonhas
Minérios S.A. and, Nacional Minérios S.A.


 


 


ITOCHU Corporation


 


 


 


 


	
  _________________________­­­­­­­­­­­

  By:
  

  Title:

   

  	
   

  











TEXT_SP/9283989v1/7474/36







 





 





 


Signature page of the
Transitional Agreement entered into by Companhia Siderúrgica Nacional, Brazil
Japan Iron Ore Corporation, POSCO, China Steel Corporation, ITOCHU Corporation,
JFE Steel Corporation, Kobe Steel, Ltd., Nisshin Steel Co., Ltd., Congonhas
Minérios S.A. and, Nacional Minérios S.A.


 


 


JFE Steel Corporation


 


 


 


 


	
  _________________________­­­­­­­­­­­

  By:
  

  Title:

   

  	
   

  




 









TEXT_SP/9283989v1/7474/36







 





 





 


Signature page of the
Transitional Agreement entered into by Companhia Siderúrgica Nacional, Brazil
Japan Iron Ore Corporation, POSCO, China Steel Corporation, ITOCHU Corporation,
JFE Steel Corporation, Kobe Steel, Ltd., Nisshin Steel Co., Ltd., Congonhas
Minérios S.A. and, Nacional Minérios S.A.


 


 


Kobe Steel, Ltd.


 


 


 


 


	
  _________________________­­­­­­­­­­­

  By:
  

  Title:

   

  	
   

  




 









TEXT_SP/9283989v1/7474/36







 





 





 


Signature page of the
Transitional Agreement entered into by Companhia Siderúrgica Nacional, Brazil
Japan Iron Ore Corporation, POSCO, China Steel Corporation, ITOCHU Corporation,
JFE Steel Corporation, Kobe Steel, Ltd., Nisshin Steel Co., Ltd., Congonhas
Minérios S.A. and, Nacional Minérios S.A.


 


 


Nisshin Steel Co., Ltd.


 


 


 


 


	
  _________________________­­­­­­­­­­­

  By:
  

  Title:

   

  	
   

  




 









TEXT_SP/9283989v1/7474/36







 





 





 


Signature page of the
Transitional Agreement entered into by Companhia Siderúrgica Nacional, Brazil
Japan Iron Ore Corporation, POSCO, China Steel Corporation, ITOCHU Corporation,
JFE Steel Corporation, Kobe Steel, Ltd., Nisshin Steel Co., Ltd., Congonhas
Minérios S.A. and, Nacional Minérios S.A.


 


 


Congonhas Minérios S.A. 


 


 


 


 


	
  _________________________­­­­­­­­­­­

  By:
  

  Title:

   

  	
  _________________________

  By:
  

  Title:

   

  




 









TEXT_SP/9283989v1/7474/36







 





 





 


Signature page of the
Transitional Agreement entered into by Companhia Siderúrgica Nacional, Brazil
Japan Iron Ore Corporation, POSCO, China Steel Corporation, ITOCHU Corporation,
JFE Steel Corporation, Kobe Steel, Ltd., Nisshin Steel Co., Ltd., Congonhas
Minérios S.A. and, Nacional Minérios S.A.


 


 


Nacional Minérios S.A.


 


 


 


 


	
  _________________________­­­­­­­­­­­

  By:
  

  Title:

   

  	
  _________________________

  By:
  

  Title:

   

  




 


 









TEXT_SP/9283989v1/7474/36







 





 





Signature page
of the Transitional Agreement entered into by Companhia Siderúrgica Nacional,
Brazil Japan Iron Ore Corporation, POSCO, China Steel Corporation, ITOCHU
Corporation, JFE Steel Corporation, Kobe Steel, Ltd., Nisshin Steel Co., Ltd.,
Congonhas Minérios S.A. and, Nacional Minérios S.A.


 


 


Witnesses:


 


 


 


	
  1.________________________­­­­­­­­­­­

  Name:
  

  ID
  Card:

   

  	
  2.________________________

  Name:

  ID
  Card:

   

  




 









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EXHIBIT I


LIST OF OPERATIONAL AGREEMENTS (PURSUANT TO THE PREAMBLE
OF THIS TRANSITIONAL AGREEMENT)


- High
Silica ROM Iron Ore Supply Contract, dated as of October 21st, 2008,
as amended from time to time (“High Silica Contract”);


-
Low Silica ROM Iron Ore Supply Contract, dated as of October 21st,
2008, as amended from time to time (“Low Silica Contract”); and


-
Port Operating Services Agreement, dated as of October 21st, 2008,
as amended from time to time (“Port Agreement”).









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