Form 20-F Nu Holdings Ltd. For: Dec 31

Exhibit 2.1

 

DESCRIPTION OF SECURITIES

REGISTERED UNDER SECTION 12 OF THE EXCHANGE ACT

 

The following is a description of our outstanding securities registered under Section 12 of the Exchange Act as required pursuant to the relevant Items under Form 20-F. As of December 31, 2021 Nu Holdings Ltd. (“we,” “us,” and “our”) had the following series of securities registered pursuant to Section 12(b) of the Exchange Act:

Title of each class	Trading Symbol	Name of each exchange on which registered
Class A ordinary shares, par value US$0.000006666666667 per share	NU	New York Stock Exchange
Brazilian Depositary Receipts, or “BDRs”	NUBR33	B3 S.A. – Brasil, Bolsa, Balcão

 

Nu was incorporated in the Cayman Islands on February 26, 2016 as an exempted company incorporated with limited liability. Our corporate purposes are unrestricted and we have the authority to carry out any object not prohibited by any law as provided by Section 7(4) of the Companies Law.

Our affairs are governed principally by: (1) our Articles of Association; (2) the Cayman Companies Act; and (3) the common law of the Cayman Islands. As provided in our Articles of Association, subject to Cayman Islands law, we have full capacity to carry on or undertake any business or activity, do any act or enter into any transaction, and, for such purposes, full rights, powers and privileges. Our principal executive offices are located at Floor 4, Willow House, Cricket Square, Grand Cayman, KY1-9010, Cayman Islands.

 

CLASS A ORDINARY SHARES

Item 9. General

9.A.3 Preemptive Rights

See “—Item 10.B Memorandum and articles of association—Preemptive or Similar Rights” below.

9.A.5 Type and Class of Securities 

As of December 31, 2021, Nu had a total issued share capital of US$30,908.26, divided into 3,459,743,432 Class A ordinary shares (including Class A ordinary shares underlying the BDRs), and 1,150,245,114 Class B ordinary shares. All of our outstanding share capital is fully paid. Our Class A ordinary shares are in book-entry form, registered in the name of each shareholder or its nominee. 

Our authorized share capital is US$324,022.94, consisting of 48,603,441,210 shares of par value US$0.000006666666667 each. The authorized but unissued shares are presently undesignated and may be issued by our board of directors as ordinary shares of any class or as shares with preferred, deferred or other special rights or restrictions.

Our Memorandum and Articles of Association authorize two classes of ordinary shares: Class A ordinary shares, which are entitled to one vote per share, and Class B ordinary shares, which are entitled to 20 votes per share and to maintain a proportional ownership interest in the event that additional Class A ordinary shares are issued. Any holder of Class B ordinary shares may convert his or her shares at any time into Class A ordinary shares on a share-for-share basis. The rights of the two classes of ordinary shares are otherwise identical, except as described in “Item 10—B. Memorandum and Articles of Association.” below.

 

Item 9.A.6. Limitations or Qualifications

Not applicable.

Item 9.A.7. Other Rights

Not applicable.

Item 10.B Memorandum and Articles of Association

The following information describes our ordinary shares and provisions set forth by our Memorandum and Articles of Association, the Cayman Companies Act; and the common law of the Cayman Islands. This description is only a summary. You should read and refer to our Memorandum and Articles of Association included as Exhibit 3.2 to the Amendment No. 2 to our registration statement on Form F-1 (File no. 333-260649), filed with the SEC on December 3, 2021.

Description of Our Memorandum and Articles of Association

History of Share Capital

On December 8, 2021, the registration statement on Form F-1, as amended (File No. 333-260649) relating to our initial public offering was declared effective by the SEC. On November 30, we commenced our initial public offering, which closed on January 6, 2022. We sold an aggregate of 316,705,853 Class A ordinary shares, including in the form of 48,526,380 BDRs, which also includes 27,555,298 Class A ordinary shares as a result of the partial exercise of the underwriters’ option to purchase additional shares granted to the, for an aggregate price of approximately US$2,839 million.

As of December 31, 2021, Nu had no shares in treasury.

General

Our shareholders adopted the Memorandum and Articles of Association included as Exhibit 3.2 to the Amendment No. 2 to our registration statement on Form F-1 (File no. 333-260649), filed with the SEC on December 3, 2021. The following summary is subject to and qualified in its entirety by Nu Holdings Ltd. memorandum and articles of association. This is not a summary of all the significant provisions of our Articles of Association, of the Cayman Companies Act or of the common law of the Cayman Islands and does not purport to be complete. Capitalized terms used but not defined herein have the meanings given to them in our annual report on Form 20-F for the fiscal year ended December 31, 2021.

Corporate Purposes

Our corporate purposes are unrestricted and we have the authority to carry out any object not prohibited by any law as provided by Section 7(4) of Companies Law (as amended) of the Cayman Islands, or the Companies Law, generally.

Issuance of Shares

Except as expressly provided in our Memorandum and Articles of Association, our board of directors has general and unconditional authority to allot, grant options over, offer or otherwise deal with or dispose of any unissued shares in the company’s capital without the approval of our shareholders (whether forming part of the original or any increased share capital), either at a premium or at par, with or without preferred, deferred or other special rights or restrictions, whether in regard to dividend, voting, return of capital or otherwise and to such persons, on such terms and conditions, and at such times as the directors may decide, but so that no share shall be issued at a discount, except in accordance with the provisions of the Companies Act.

 

Our Memorandum and Articles of Association provide that at any time that there are Class A ordinary shares in issue, additional Class B ordinary shares may only be issued pursuant to (1) a share split, subdivision of shares or similar transaction or where a dividend or other distribution is paid by the issue of shares or rights to acquire shares or following capitalization of profits; (2) a merger, consolidation, or other business combination involving the issuance of Class B ordinary shares as full or partial consideration; or (3) an issuance of Class A ordinary shares, whereby holders of the Class B ordinary shares are entitled to purchase a number of Class B ordinary shares that would allow them to maintain their proportional ownership interest in the company (following an offer by us to each holder of Class B ordinary shares to issue to such holder, upon the same economic terms, such number of Class B ordinary shares as would allow such holder to maintain its proportional ownership interest in the company pursuant to our Memorandum and Articles of Association). In light of: (a) the above provisions; and (b) the 20-to-1 voting ratio between our Class B ordinary shares and Class A ordinary shares, holders of our Class B ordinary shares will in many situations continue to maintain control of all matters requiring shareholder approval. This concentration of ownership and voting power will limit or preclude your ability to influence corporate matters for the foreseeable future. For more information see “—Ordinary Shares—Preemptive or Similar Rights.”

Fiscal Year

Nu’s fiscal year begins on January 1 of each year and ends on December 31 of the same year.

Ordinary Shares

Dividend Rights

Subject to preferences that may apply to any preferred shares outstanding at the time, the holders of our ordinary shares are entitled to receive dividends out of funds legally available if our board of directors, in its discretion, determines to issue dividends and then only at the times and in the amounts legally available therefor that our board of directors may determine. 

Voting Rights

The holder of a Class B ordinary share is entitled, in respect of such share, to 20 votes per share, whereas the holder of a Class A ordinary share is entitled, in respect of such share, to one vote per share. The holders of Class A ordinary shares and Class B ordinary shares vote together as a single class on all matters (including the election of directors) submitted to a vote of shareholders, except as provided below and as otherwise required by law.

Our Memorandum and Articles of Association provide as follows regarding the respective rights of holders of Class A ordinary shares and Class B ordinary shares:

(1)       class consents from the holders of Class A ordinary shares and Class B ordinary shares, as applicable, shall be required for any variation to the rights attached to their respective class of shares, however, the directors may treat the two classes of shares as forming one class if they consider that both such classes would be affected in the same way by the proposal;

(2)       the rights conferred on holders of Class A ordinary shares shall not be deemed to be varied by the creation or issue of further Class B ordinary shares and vice versa; and

(3)       the rights attaching to the Class A ordinary shares and the Class B ordinary shares shall not be deemed to be varied by the creation or issue of shares with preferred or other rights, including, without limitation, shares with enhanced or weighted voting rights.

As set forth in our Memorandum and Articles of Association, the holders of Class A ordinary shares and Class B ordinary shares, respectively, do not have the right to vote separately if the number of authorized shares of such class is increased or decreased. Rather, the number of authorized Class A ordinary shares and Class B ordinary shares may be increased or decreased (but not below the number of shares of such class then outstanding) by both classes voting together by way of an “ordinary resolution,” which is defined in the our Memorandum and Articles of Association as being a resolution (1) of a duly constituted general meeting passed by a simple majority of the votes cast by, or on behalf of, the shareholders entitled to vote present in person or by proxy and voting at the meeting; or (2) approved in writing by all of the shareholders entitled to vote at a general meeting in one or more instruments each signed by one or more of the shareholders and the effective date of the resolution so adopted shall be the date on which the instrument, or the last of such instruments, if more than one, is executed.

 

We have not provided for cumulative voting for the election of directors in our Memorandum and Articles of Association.

Conversion Rights

Each outstanding Class B ordinary share is convertible at any time at the option of the holder into one Class A ordinary share, and each Class B ordinary share will convert automatically into one Class A ordinary share at the election of the holder(s) of a majority of the Class B ordinary shares. In addition, each Class B ordinary share will convert automatically into one Class A ordinary share upon any transfer, whether or not for value, except for certain transfers described in our Memorandum and Articles of Association, including transfers to affiliates of a holder, one or more trustees of a trust established for the benefit of a holder or their affiliates, partnerships, corporations and other entities owned or controlled by a holder or their affiliates, and an organization that is exempt from taxation under Section 501(3)(c) of the Code or to an organization that is exempt from taxation in Brazil under Sections 184, 377 or 378 of the 2018 Internal Tax Regulations and that is controlled, directly or indirectly through one or more intermediaries, by a holder. Furthermore, each Class B ordinary share will convert automatically into one Class A ordinary share and no Class B ordinary shares will be issued thereafter if, on the record date for any shareholders meeting, the aggregate voting power of Class B ordinary shares then outstanding is less than 10% of the aggregate voting power of Class A ordinary shares and Class B ordinary shares outstanding.

Preemptive or Similar Rights

Our Class A ordinary shares are not entitled to preemptive rights, and are not subject to conversion, redemption or sinking fund provisions.

The Class B ordinary shares are entitled to maintain a proportional ownership interest in the event that additional Class A ordinary shares are issued. As such, except for certain exceptions, including the issuance of Class A ordinary shares in furtherance of this offering, if we issue Class A ordinary shares, we must first make an offer to each holder of Class B ordinary shares to issue to such holder on the same economic terms such number of Class B ordinary shares as would allow such holder to maintain its proportional ownership interest in the company. This right to maintain a proportional ownership interest may be waived by the holders of a majority of the Class B ordinary shares.

Right to Receive Liquidation Distributions

If we become subject to a liquidation, dissolution or winding-up, the assets legally available for distribution to our shareholders would be distributable ratably among the holders of our ordinary shares and any participating preferred shares outstanding at that time, subject to prior satisfaction of all outstanding debt and liabilities and the preferential rights of and the payment of liquidation preferences, if any, on any outstanding shares of preferred shares.

Preferred Shares

Pursuant to our Memorandum and Articles of Association, our board of directors have the authority, subject to limitations prescribed by Cayman Islands law, to issue preferred shares in one or more series, to establish from time to time the number of shares to be included in each series and to fix the designation, powers, preferences, and rights of the shares of each series and any of its qualifications, limitations, or restrictions, in each case without further vote or action by our shareholders. Our board of directors can also increase or decrease the number of shares of any series of preferred shares, but not below the number of shares of that series then outstanding, without any further vote or action by our shareholders. Our board of directors may authorize the issuance of preferred shares with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our Class A ordinary shares. The issuance of preferred shares, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing a change in control of our company and might adversely affect the market price of our Class A ordinary shares and the voting and other rights of the holders of our Class A ordinary shares. We have no current plan to issue any preferred shares and have no preferred shares outstanding since our initial public offering.

 

 

Equal Status

Except as expressly provided in our Memorandum and Articles of Association, Class A ordinary shares and Class B ordinary shares have the same rights and privileges and rank equally, share proportionally and are identical in all respects as to all matters. In the event of any statutory amalgamation, merger, consolidation, arrangement or other reorganization involving us and requiring the approval of our shareholders entitled to vote thereon, as well as a short-form merger or consolidation that does not require a resolution of our shareholders, the holders of Class A ordinary shares shall have the right to receive, or the right to elect to receive, the same form of consideration as the holders of Class B ordinary shares, and the holders of Class A ordinary shares shall have the right to receive, or the right to elect to receive, at least the same amount of consideration on a per share basis as the holders of Class B ordinary shares, in each case solely with respect to economic rights. In the event of any (1) tender or exchange offer to acquire any Class A ordinary shares or Class B ordinary shares by any third-party pursuant to an agreement to which we are a party, or (2) any tender or exchange offer by us to acquire any Class A ordinary shares or Class B ordinary shares, the holders of Class A ordinary shares shall have the right to receive, or the right to elect to receive, the same form of consideration as the holders of Class B ordinary shares, and the holders of Class A ordinary shares shall have the right to receive, or the right to elect to receive, at least the same amount of consideration on a per share basis as the holders of Class B ordinary shares, in each case solely with respect to economic rights.

Record Dates

For the purpose of determining shareholders entitled to notice of, or to vote at any general meeting of shareholders or any adjournment thereof, or shareholders entitled to receive dividend or other distribution payments, or in order to make a determination of shareholders for any other purpose, our board of directors may set a record date which shall not exceed forty (40) clear days prior to the date where the determination will be made.

General Meetings of Shareholders

As a condition of admission to a shareholders’ meeting, a shareholder must be duly registered as such at the applicable record date for that meeting and, in order to vote, all calls or installments then payable by such shareholder to us in respect of the shares that such shareholder holds must have been paid.

Subject to any special rights or restrictions as to voting then attached to any shares, at any general meeting every shareholder who is present in person or by proxy (or, in the case of a shareholder being a corporation, by its duly authorized representative not being himself or herself a shareholder entitled to vote) shall have one vote per Class A ordinary share and 20 votes per Class B ordinary share.

As a Cayman Islands exempted company, we are not obliged by the Companies Act to call annual general meetings; however, our Memorandum and Articles of Association provide that in each year the company will hold an annual general meeting of shareholders. For the annual general meeting of shareholders the agenda will include, among other things, the presentation of the annual accounts and the report of the directors (if any). In addition, the agenda for an annual general meeting of shareholders will only include such items as have been included therein by the board of directors.

 

Also, we may, but are not required to (unless required by the laws of the Cayman Islands), hold other extraordinary general meetings during the year. Extraordinary general meetings of shareholders may be held where the directors so decide.

The Companies Act provides shareholders a limited right to request a general meeting, and does not provide shareholders with any right to put any proposal before a general meeting in default of a company’s memorandum and articles of association. However, these rights may be provided in a company’s memorandum and articles of association. Our Memorandum and Articles of Association provide that for so long as our founding shareholder controls a majority of the voting power of the shares of the Company, a general meeting of shareholders may be convened on the requisition of the holders of a majority of the voting power of our shares. However, if our founding shareholder controls less than a majority of the voting power of our shares, no shareholder shall have the power to requisition a meeting of shareholders. Our Memorandum and Articles of Association provide no other right to put any proposals before annual general meetings or extraordinary general meetings.

Subject to regulatory requirements, the annual general meeting must be called by at least 21 days’ (and not less than 15 clear business days’) notice and any extraordinary general meeting by at least 14 days’ (and not less than 10 clear business days’) notice prior to the relevant shareholders meeting and convened by a notice discussed below. Alternatively, upon the prior consent of all holders entitled to receive notice, with regards to the annual general meeting, and the holders of 75% in par value of the shares entitled to attend and vote at an extraordinary general meeting, that meeting may be convened by a shorter notice and in a manner deemed appropriate by those holders.

We will give notice of each general meeting of shareholders by publication on our website and in any other manner that may be required in order to comply with Cayman Islands law, NYSE and SEC requirements. The holders of registered shares may be given notice of a shareholders’ meeting by means of letters sent to the addresses of those shareholders as registered in our shareholders’ register, or, subject to certain statutory requirements, by electronic means.

Holders whose shares are registered in the name of DTC or its nominee, which we expect will be the case for all holders of Class A ordinary shares, will not be a shareholder or member of the company and must rely on the procedures of DTC regarding notice of shareholders’ meetings and the exercise of rights of a holder of the Class A ordinary shares.

A quorum for a general meeting consists of any one or more persons holding or representing by proxy not less than a majority of the aggregate shares in issue and entitled to vote upon the business to be transacted. If a quorum is not present within half an hour from the time appointed for the meeting to commence or if during such a meeting a quorum ceases to be present, a second meeting may be called as the Directors may determine, and if at the second meeting a quorum is not present within half an hour from the time appointed for the meeting to commence, the shareholders present shall be a quorum.

A resolution put to a vote at a general meeting shall be decided on a poll. Generally speaking, an ordinary resolution to be passed by the shareholders at a general meeting requires the affirmative vote of a simple majority of the votes cast by, or on behalf of, the shareholders entitled to vote, present in person or by proxy and voting at the meeting and a special resolution requires the affirmative vote on a poll of no less than two-thirds of the votes cast by the shareholders entitled to vote who are present in person or by proxy at a general meeting. Both ordinary resolutions and special resolutions may also be passed by a unanimous written resolution signed by all of our shareholders, as permitted by the Companies Act and our Memorandum and Articles of Association.

Pursuant to our Memorandum and Articles of Association, general meetings of shareholders are to be chaired by the chairman of our board of directors or in his absence the vice-chairman of the board of directors. If the chairman or vice-chairman of our board of directors is absent, the directors present at the meeting shall appoint one of them to be chairman of the general meeting. If neither the chairman nor another director is present at the general meeting within 30 minutes after the time appointed for holding the meeting, then such meeting shall be adjourned for a one week period and shall be held in the following week on the same day at the same time and place. If at the adjournment of the meeting the chairman or in his absence the vice-chairman (if any) or in their absence a director is not willing to act as chairman, or if no director is present within thirty (30) minutes after the time appointed for holding the meeting, then such meeting shall be canceled. The order of business at each meeting shall be determined by the chairman of the meeting, and he or she shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on our affairs, restrictions on entry to such meeting after the time prescribed for the commencement thereof, and the opening and closing of the polls.

 

Changes to Capital

Pursuant to our Memorandum and Articles of Association, we may from time to time by ordinary resolution:

• increase our share capital by such sum, to be divided into shares of such amount, as the resolution shall prescribe;
• consolidate and divide all or any of our share capital into shares of a larger amount than its existing shares;
• convert all or any of our paid-up shares into stock and reconvert that stock into paid up shares of any denomination;
• subdivide our existing shares or any of them into shares of a smaller amount, provided that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived; or
• cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person and diminish the amount of its share capital by the amount of the shares so cancelled.

Our shareholders may by special resolution, subject to confirmation by the Grand Court of the Cayman Islands on an application by us for an order confirming such reduction, reduce its share capital or any capital redemption reserve in any manner permitted by law.

In addition, subject to the provisions of the Companies Act and our Memorandum and Articles of Association and the Shareholder’s Agreement, we may:

• issue shares on terms that they are to be redeemed or are liable to be redeemed;
• purchase its own shares (including any redeemable shares); and
• make a payment in respect of the redemption or purchase of its own shares in any manner authorized by the
• Companies Act, including out of its own capital.

Transfer of Shares

Subject to any applicable restrictions set forth in the Memorandum and Articles of Association and the Shareholder’s Agreement, any shareholder of Nu may transfer all or any of his or her ordinary shares by an instrument of transfer in the usual or common form or in the form prescribed by the NYSE or any other form approved by our board of directors.

 

Our Class A ordinary shares are traded on the NYSE in book-entry form and may be transferred in accordance with our Memorandum and Articles of Association and NYSE’s rules and regulations.

However, our board of directors may, in its absolute discretion, decline to register any transfer of any ordinary share which is either not fully paid up to a person of whom it does not approve or is issued under any share incentive scheme for employees which contains a transfer restriction that is still applicable to such ordinary share. The board of directors may also decline to register any transfer of any ordinary share unless:

• the instrument of transfer is lodged with us, accompanied by the certificate (if any) for the ordinary shares to which it relates and such other evidence as our board of directors may reasonably require to show the right of the transferor to make the transfer;
• the instrument of transfer is in respect of only one class of shares;
• the instrument of transfer is properly stamped, if required;
• the ordinary shares transferred are free of any lien in favor of us; and
• in the case of a transfer to joint holders, the transfer is not to more than four joint holders.

If the directors refuse to register a transfer they are required, within two months after the date on which the instrument of transfer was lodged, to send to the transferee notice of such refusal.

Share Repurchase

The Companies Act and our Memorandum and Articles of Association permit us to purchase our own shares, subject to certain restrictions. Our board of directors may only exercise this power on behalf of Nu, subject to the Companies Act and our Memorandum and Articles of Association, the Shareholder’s Agreement and to any applicable requirements imposed from time to time by the SEC, the NYSE or by any recognized stock exchange on which our shares are listed.

Dividends and Capitalization of Profits

We have not adopted a dividend policy with respect to payments of any future dividends. Subject to the Companies Act and general principles of Cayman Islands law, our shareholders may, by ordinary resolution, declare dividends (including interim dividends) to be paid to shareholders but no dividend shall be declared in excess of the amount recommended by the board of directors. The board of directors may also declare dividends. Dividends may be declared and paid out of funds lawfully available to us. Except as otherwise provided by the rights attached to shares and our Memorandum and Articles of Association, all dividends shall be paid in proportion to the number of Class A ordinary shares or Class B ordinary shares a shareholder holds at the date the dividend is declared (or such other date as may be set as a record date); but, (1) if any share is issued on terms providing that it shall rank for dividend as from a particular date, that share shall rank for dividend accordingly; and (2) where we have shares in issue which are not fully paid up (as to par value), we may pay dividends in proportion to the amounts paid up on each share.

The holders of Class A ordinary shares and Class B ordinary shares shall be entitled to share equally in any dividends that may be declared in respect of our ordinary shares from time to time. In the event that a dividend is paid in the form of Class A ordinary shares or Class B ordinary shares, or rights to acquire Class A ordinary shares or Class B ordinary shares, (1) the holders of Class A ordinary shares shall receive Class A ordinary shares, or rights to acquire Class A ordinary shares, as the case may be and (2) the holders of Class B ordinary shares shall receive Class B ordinary shares, or rights to acquire Class B ordinary shares, as the case may be.

 

Appointment, Disqualification and Removal of Directors

We are managed by our board of directors. Our Memorandum and Articles of Association provide that the board of directors will be composed of such number of directors as a majority of directors in office may determine, being up to nine directors on the date of adoption of our Memorandum and Articles of Association. There are no provisions relating to retirement of directors upon reaching any age limit.

Our Memorandum and Articles of Association provides that directors shall be elected by an ordinary resolution of our shareholders, which requires the affirmative vote of a simple majority of the votes cast on the resolution by the shareholders entitled to vote who are present, in person or by proxy, at a quorate general meeting of the Company. Notwithstanding the foregoing, for so long as our founding shareholder owns at least 5% of the voting power of our outstanding share capital, our founding shareholder shall be entitled to nominate a certain number of designees to the board for a specific term, as set out in our Memorandum and Articles of Association. In particular, our Memorandum and Articles of Association provide that, subject to compliance with applicable law and NYSE rules, for so long as our founding shareholder and his affiliates beneficially own shares constituting at least 40% of the voting power of our outstanding share capital, the founding shareholder shall be entitled to designate up to five nominees to our board of directors (or if the size of the board of directors is increased, a majority of the members of the board of directors); for so long as our founding shareholder and its affiliates beneficially own at least 25% of the voting power of our outstanding share capital, the founding shareholder shall be entitled to designate up to three nominees to our board of directors (or if the size of the board of directors is increased, one-third of the members of the board of directors); and for so long as our founding shareholder and its affiliates beneficially own at least 5% of the voting power of our outstanding share capital, our founding shareholder shall be entitled to designate one nominee to our board of directors (or if the size of the board of directors is increased, 10% of the members of the board of directors). The founding shareholder may in like manner remove such director(s) appointed by him and appoint replacement director(s).

Each director shall be appointed for a one year term, unless they resign or their office is vacated earlier, provided, however, that such term shall be extended beyond one year in the event that no successor has been appointed (in which case such term shall be extended to the date on which such successor has been appointed).

Our Memorandum and Articles of Association provide that from and after the date on which the founding shareholder (together with his affiliates) no longer beneficially owns more than 50% of our outstanding voting power, or the classifying date, the directors shall be divided into three classes designated Class I, Class II, and Class III. Each director shall serve for a term ending on the date of the third annual general shareholders meeting following the annual general shareholders meeting at which such director was elected as subject to the provisions of our Memorandum and Articles of Association. The founding directors shall be allocated to the longest duration classes unless otherwise determined by the founding shareholder.

Grounds for Removing a Director

A director may be removed with or without cause by ordinary resolution, and a director nominated by our founding shareholder may be removed by our founding shareholder at any time with or without cause by notice to us. The notice of general meeting must contain a statement of the intention to remove the director and must be served on the director not less than ten calendar days before the meeting. The director is entitled to attend the meeting and be heard on the motion for his removal.

The office of a director will be vacated automatically if he or she (1) becomes prohibited by law from being a director; (2) becomes bankrupt or makes an arrangement or composition with his creditors; (3) dies or is in the opinion of all his co-directors, incapable by reason of mental disorder of discharging his duties as director; (4) resigns his office by notice to us; or (5) has for more than six months been absent without permission of the directors from meetings of the board of directors held during that period, and the remaining directors resolve that his or her office be vacated.

 

Proceedings of the Board of Directors

Our Memorandum and Articles of Association provide that our business is to be managed and conducted by the board of directors. The quorum necessary for the board meeting shall be a simple majority of the directors then in office, and business at any meeting shall be decided by a majority of votes. In the case of an equality of votes, the chairman shall not have a casting vote.

Subject to the provisions of our Memorandum and Articles of Association, the board of directors may regulate its proceedings as they determine is appropriate. Board meetings shall be held at least once every calendar quarter and shall take place at such place as the directors may determine.

Subject to the provisions of our Memorandum and Articles of Association, to any directions given by ordinary resolution of the shareholders and the listing rules of the NYSE, the board of directors may from time to time at its discretion exercise all powers of Nu, including, subject to the Companies Act, the power to issue debentures, bonds and other securities of the company, whether outright or as collateral security for any debt, liability or obligation of our company or of any third party.

Inspection of Books and Records

Holders of our ordinary shares will have no general right under Cayman Islands law to inspect or obtain copies of our list of shareholders or corporate records. However, the board of directors may determine from time to time whether and to what extent our accounting records and books shall be open to inspection by shareholders who are not members of the board of directors. Notwithstanding the above, our Memorandum and Articles of Association provide shareholders with the right to receive annual financial statements. Such right to receive annual financial statements may be satisfied by publishing the same on the company’s website or filing such annual reports as we are required to file with the SEC.

Register of Shareholders

Our Class A ordinary shares offered are held through DTC, and DTC or Cede & Co., as nominee for DTC, will be recorded in the shareholders’ register as the holder of our Class A ordinary shares. Under Cayman Islands law, we must keep a register of shareholders that includes:

• the names and addresses of the shareholders, a statement of the shares held by each member, and of the amount paid or agreed to be considered as paid, on the shares of each member;
• the date on which the name of any person was entered on the register as a member; and
• the date on which any person ceased to be a member.

Under Cayman Islands law, our register of shareholders is prima facie evidence of the matters set out therein (i.e., the register of shareholders will raise a presumption of fact on the matters referred to above unless rebutted) and a shareholder registered in the register of shareholders is deemed as a matter of Cayman Islands law to have prima facie legal title to the shares as set against his or her name in the register of shareholders. The shareholders recorded in the register of shareholders should be deemed to have legal title to the shares set against their name.

If the name of any person is incorrectly entered in or omitted from the register of shareholders, or if there is any default or unnecessary delay in entering on the register the fact of any person having ceased to be a shareholder of Nu, the person or member aggrieved (or any shareholder of ours, or Nu itself) may apply to the Cayman Islands Grand Court for an order that the register be rectified, and the Court may either refuse such application or it may, if satisfied of the justice of the case, make an order for the rectification of the register.

 

Anti-Takeover Provisions in Our Memorandum and Articles of Association

Some provisions of our Memorandum and Articles of Association may discourage, delay or prevent a change in control of our company or management that shareholders may consider favorable. In particular, our capital structure concentrates ownership of voting rights in the hands of our founding shareholder, as our controlling shareholder. These provisions, which are summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of our company to first negotiate with the board of directors. However, these provisions could also have the effect of discouraging others from attempting hostile takeovers and, as a consequence, they may also inhibit temporary fluctuations in the market price of the Class A ordinary shares that often result from actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish transactions that shareholders may otherwise deem to be in their best interests.

Two Classes of Ordinary Shares

Our Class B ordinary shares are entitled to 20 votes per share, while the Class A ordinary shares are entitled to one vote per share. Since our co-founders own all of the Class B ordinary shares, our co-founders currently have the ability to elect a majority of the directors and to determine the outcome of most matters submitted for a vote of shareholders, with our founding shareholder as the controlling shareholder. This concentrated voting control could discourage others from initiating any potential merger, takeover, or other change of control transaction that other shareholders may view as beneficial.

So long as our co-founders have the ability to determine the outcome of most matters submitted to a vote of shareholders as well as the overall management and direction of Nu, third parties may be deterred in their willingness to make an unsolicited merger, takeover, or other change of control proposal, or to engage in a proxy contest for the election of directors. As a result, the fact that we have two classes of ordinary shares may have the effect of depriving you as a holder of Class A ordinary shares of an opportunity to sell your Class A ordinary shares at a premium over prevailing market prices and make it more difficult to replace our directors and management.

Preferred Shares

Our Memorandum and Articles of Association provides our board of directors with wide powers to issue additional shares, and one or more classes or series of preferred shares, with or without preferred, deferred or other rights or restrictions, whether in regard to dividend, voting, return of capital or otherwise and to such persons, at such times and on such other terms as the board of directors may determine, to the extent authorized but unissued. The issuance of additional shares may be used as an anti-takeover device without further action on the part of our shareholders. Such issuance may further dilute the voting power of existing holders of Class A ordinary shares.

Despite the anti-takeover provisions described above, under Cayman Islands law, our board of directors may only exercise the rights and powers granted to them under our Memorandum and Articles of Association, for what they believe in good faith to be in our best interests.

Requisitioning General Meetings

Our Memorandum and Articles of Association provide that, for so long as our founding shareholder controls a majority of the voting power of our shares, a general meeting of shareholders may be convened on the requisition of the holders of a majority of the voting power of our shares. However, if our founding shareholder controls less than a majority of the voting power of our shares, no shareholder shall have the power to requisition a meeting of shareholders. Accordingly, our shareholders will have limited rights to requisition and convene general meetings of shareholders.

 

Consent Over a Change of Control

Our Memorandum and Articles of Association provide that for so long as David Vélez Osorno and his affiliates beneficially own shares accounting for at least 10% of the voting power of our issued share capital, we will not take, or permit our subsidiaries to take, certain actions without the prior written approval of a majority of the Class B ordinary shares in issue, including entering into a merger, consolidation, reorganization or other business combination or a transaction or series of transactions that would result in a change of control.

Staggered Board

Our Memorandum and Articles of Association provide that, from and after the date that David Vélez Osorno and his affiliates no longer beneficially own more than 50% of the voting power of our issued share capital, we shall cause our board of directors to be divided into three classes serving staggered three-year terms. This classification of our board of directors could have the effect of increasing the length of time necessary to change the composition of a majority of the board of directors. In general, at least two annual meetings of shareholders will be necessary for shareholders to effect a change in a majority of the members of the board of directors.

Exclusive Forum

Under our Memorandum and Articles of Association, unless we consent to a different forum, (i) any derivative action or proceeding brought on our behalf, (ii) any action or proceeding asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees to us or any other person, (iii) any action or proceeding arising pursuant to, or seeking to enforce any right, obligation or remedy under, any provision of the Companies Act, our Memorandum and Articles of Association, or any other provision of applicable law, (iv) any action or proceeding seeking to interpret, apply, enforce or determine the validity of our Memorandum and Articles of Association or (v) any action or proceeding as to which the Companies Act confers jurisdiction on the Grand Court of the Cayman Islands may only be brought before the Grand Court of the Cayman Islands, in all cases subject to the court having jurisdiction over indispensable parties named as defendants. In addition, any complaint asserting a cause of action arising under the Securities Act may only be brought before the federal district courts of the United States. Nothing in our Memorandum and Articles of Association will preclude shareholders that assert claims under the Exchange Act from bringing such claims in any court, subject to applicable law.

Any person or entity purchasing or otherwise acquiring or holding any interest in our securities shall be deemed to have notice of and consented to these exclusive forum provisions. However, shareholders will not be deemed to have waived our compliance with U.S. federal securities laws and the rules and regulations thereunder. The enforceability of similar choice of forum provisions in other companies’ organizational documents has been challenged in legal proceedings, and it is possible that, in connection with claims arising under federal securities laws or otherwise, a court could find the exclusive forum provision contained in our Memorandum and Articles of Association to be inapplicable or unenforceable.

Rights of Non-Resident or Foreign Shareholders

There are no limitations imposed by our Memorandum and Articles of Association on the rights of non-resident or foreign shareholders to hold or exercise voting rights on our shares. In addition, there are no provisions in our Memorandum and Articles of Association governing the ownership threshold above which shareholder ownership must be disclosed.

Item 12. Description of Securities other than Equity Securities

12.A Debt Securities

Not applicable.

12.B Warrants and Rights

Not applicable. 

 

12.C Other Securities

Description of Brazilian Depositary Receipts

The rights of holders of BDRs are set forth in a deposit agreement between us and Banco Bradesco S.A., as depositary of the BDR Program.

There are differences between holding BDRs and holding Class A ordinary shares.

General

Each BDR represents 1/6th of a Class A ordinary share issued by us, maintained in custody by the custodian in the offices of Bank of New York Mellon at One Wall Street, New York, New York 10286. The BDR Depositary’s office at which the BDRs are managed is located at Cidade de Deus, Yellow Building, 2nd Floor, Vila Yara, Osasco, Brazil, Zip Code 06029-900.

A BDR holder will not be treated as one of our Class A ordinary shareholders and, as a result may not have any Class A ordinary shareholder rights.

The rights of our Class A ordinary shareholders are governed by the laws of the Cayman Islands and the provisions of our Memorandum and Articles of Association. See “Item 10—B. Memorandum and Articles of Association.” The rights of holders of BDRs are governed by the laws and regulations of Brazil, as well as the provisions of the deposit agreement.

The following is a summary of the material provisions of the deposit agreement. Because it is a summary, it does not contain all the information that may be important to you. For more complete information, you should read:

• the rules and regulations applicable to BDRs, particularly CMN Resolution No. 3,568/08, CVM Instructions No. 332 and 480, as amended, and the Central Bank of Brazil Circular No. 3,691/13, as amended; and
• the deposit agreement, copies of which are available for review upon request.

Deposit Agreement

Scope

The Deposit Agreement governs the relationship between us and the BDR Depositary with respect to the issuance, cancellation and registration, in Brazil, of the BDRs representing Class A ordinary shares issued by us and held by the custodian. The Deposit Agreement also governs the actions of the BDR Depositary with respect to the management of the BDR program and the services to be performed by the BDR Depositary for holders of BDRs.

BDR Registry Book; Ownership and Trading of BDRs

Pursuant to the deposit agreement, the BDRs may be issued and cancelled, as the case may be, by means of entries in the BDR registry book, which will be kept by the BDR Depositary. The BDR registry book will record the total number of BDRs issued in the name of the Central Depositary of the B3, the fiduciary holder of the BDRs. The BDRs will be held and blocked in a custody account with the Central Depositary of the B3 and held for trading on the B3.

Therefore, neither over-the-counter transfers of the BDRs, nor transfers of the BDRs conducted in any private transaction market other than the B3, or in a clearinghouse other than the Central Depositary of the B3, are admitted. Any transfer of BDRs (including transfers made by U.S. persons) will be conducted through broker-dealers or institutions authorized to operate on the B3. 

 

Ownership of the BDRs is determined by entry of the beneficial holder’s name in the records of the Central Depositary of the B3, and evidenced by the custodial account statement issued by the Central Depositary of the B3. The Central Depositary of the B3 will inform the names of the BDRs holders to the BDR Depositary.

The BDR Depositary has advised us that holders of BDRs are not generally entitled to inspect the BDR Depositary’s transfer books or list of holders of BDRs, due to certain secrecy obligations under Brazilian law.

Issuance and Cancellation of BDRs

The BDR Depositary will issue the BDRs in Brazil after confirmation by the custodian that a corresponding number of our Class A ordinary shares were deposited with the custodian, and after confirmation that all fees and taxes due in connection with this services were duly paid, as set forth in the deposit agreement.

As a result, an investor may at any time give instructions to a broker-dealer to purchase Class A ordinary shares on the NYSE, to be further deposited with the custodian in order to allow the BDR Depositary to issue BDRs.

In order to effect the financial settlement of the acquisition of our Class A ordinary shares on the NYSE with the intention of adhering to the BDR program, an investor must execute a foreign exchange agreement in conformity with the BDR program certificate registered with the Central Bank of Brazil and the broker certificate evidencing by the purchase of our Class A ordinary shares abroad.

Holders of BDRs may at any time request the cancellation of all or a portion of their BDRs by (a) instructing a broker- dealer operating in Brazil to cancel the BDRs with the BDR Depositary and (b) delivering evidence that all fees and taxes due in connection with this service were duly paid, as set forth in the deposit agreement. Brazilian investors will be required to send the proceeds of any cancellation of BDRs back to Brazil within seven days of the cancellation date. Non-Brazilian investors that are registered in Brazil as portfolio investors under CMN Resolution No. 4,373 do not need to send the proceeds of any sale of Class A ordinary shares into Brazil. In any event, the transaction must be recorded in the Central Bank of Brazil system.

For a brief description of the rules and regulations of the Central Bank of Brazil regarding such matters, see “Item 4. Information on the Company—B. Business Overview—Regulatory Overview—Brazil—Registration of BDRs with the CVM.”

Issuance of BDRs without underlying Class A ordinary shares

In no event may the BDR Depositary issue BDRs without confirmation by the custodian that a corresponding number of Class A ordinary shares were deposited with the custodian.

Restrictions on BDRs

Holders of BDRs may only exercise their rights indirectly through the BDR Depositary. Holders of BDRs may also face other difficulties in exercising their rights, as voting rights granted to shares and, indirectly, to BDRs, must be exercised by holders of BDRs through the BDR Depositary, which will instruct the Custodian accordingly. Although the mechanisms related to notices of shareholders’ meetings and voting instructions provided in the Deposit Agreement are intended to provide sufficient time for the exercise of these rights, there can be no assurance that these mechanisms will allow holders of BDRs to effectively exercise voting rights, particularly in the event that notice of a shareholders’ meeting or voting instruction does not timely reach BDR holders for reasons that are beyond our control and beyond the control of the BDR Depositary. Holders of BDRs are not entitled to physically attend our shareholders’ meetings.

 

Dividends and Other Cash Distributions

It is our present intention to retain any earnings for use in our business operations and, accordingly, we do not anticipate the board of directors declaring any dividends in the foreseeable future following our initial public offering. However, in the event of any future dividend, the BDR Depositary will distribute any dividends or other cash distributions paid by us to our shareholders, including the holders of BDRs. Such dividends will be paid to the BDR Depositary, which will convert this dividend or distribution into Brazilian reais by means of a foreign exchange transaction entered into with an authorized exchange agent, and distribute the net amount received to the holders of BDRs entitled to it, in proportion to the number of BDRs held by them; provided, however, that in the event that we or the BDR Depositary are required to withhold a portion of the dividend or other cash distribution on account of taxes, the amount distributed to holders of BDRs will be reduced accordingly. The BDR Depositary will distribute only the amount that may be distributed without allocating to any BDR holder a fraction of a centavo by rounding to the next lower whole centavo. No interest or other remuneration will be payable by us or any other remuneration for the period between the date on which the dividends and other cash distributions are paid abroad and the date on which the funds are credited to BDR holders in Brazil.

Subject to our corporate acts, in the event that any assignment of any Class A ordinary shares to a BDR holder occurs, the BDR Depositary will convert automatically, and to the extent permitted by applicable law, into BDRs subject to the terms and conditions of the Deposit Agreement, registering them in the name of the right holder in proportion to the number of BDRs held by the respective right holder.

However, subject to our Memorandum and Articles of Association, in case of attribution of a fraction of BDRs to one or more holders of BDRs, the BDR Depositary will sell the amount of Class A ordinary shares received representing the sum of the fractional shares allotted, and distribute the net amount received.

Whenever the BDR Depositary receives distributions other than those previously provided for, it shall distribute them to the holders of eligible BDRs in proportion to the number of BDRs respectively held by them, in accordance with applicable law. If, in the opinion of the BDR Depositary, such distribution cannot be executed proportionately, the BDR Depositary may choose any method it deems equitable and feasible for the purpose of executing such distribution.

No interest or other remuneration shall be payable by us for the period between the date on which dividends and other cash distributions are paid abroad and the date on which the funds are credited to the holders of BDRs in Brazil. Before making a distribution, any withholding taxes that must be paid under applicable law will be deducted.

Share Distributions

In the event of distributions of our Class A ordinary shares or a share split or reverse share split, the BDR Depositary will issue new BDRs corresponding to such new Class A ordinary shares deposited with the custodian and will credit them to the account of the Central Depositary of the B3. The Central Depositary of the B3, in turn, will credit new BDRs to the beneficiary holders recorded in its books. The BDR Depositary will distribute only whole BDRs. If any fractions of BDRs result and are insufficient to purchase a whole BDR, the BDR Depositary will use its best efforts to add such fractions and sell them in an auction on the B3, and the proceeds of the sale will be credited to BDR holders, proportionally with its holdings recorded in the books of the Central Depositary of the B3.

Other Distributions

The BDR Depositary will use its best efforts to distribute to BDR holders any other distribution paid in connection with Class A ordinary shares and deposited with the custodian.

The BDR Depositary is not required to make available to any BDR holder any distribution that it determines is unlawful or impractical. We have no obligation to register BDRs, Class A ordinary shares, rights or other securities under Brazilian law. We also have no obligation to take any other action to permit the distribution of BDRs, Class A ordinary shares, rights or other securities to BDR holders. This means that you may not receive distributions we make on our Class A ordinary shares or any value for them if it is illegal or impractical for us to make them available to you.

 

Pre-Emptive Rights

If we offer holders of our Class A ordinary shares any rights to subscribe for additional shares or any other rights, the same rights will be offered to BDR holders through the BDR Depositary, which will exercise these rights directly or indirectly, in the name of the BDR holders that have instructed the BDR Depositary to do so. The BDR holder is free to exercise or negotiate such rights, subject to applicable law.

Changes Affecting Deposited Class A Ordinary Shares

If we do any of the following:	Then the following will apply:
Effect a split of Class A ordinary shares.	Each BDR will automatically reflect its equal value of the new deposited Class A ordinary shares.
Effect a reverse split of Class A ordinary shares.	The BDR Depositary will effect an immediate cancellation of the BDRs required to reflect the new amount of our Class A ordinary shares deposited with the custodian.
Recapitalize, amalgamate, reorganize, merge, consolidate, sell all or substantially all of our assets or take any similar action.	The BDR Depositary will effect an immediate cancellation of the BDRs required to reflect the new amount of our Class A ordinary shares deposited with the custodian.

 

Voting Rights of BDRs

A BDR holder has the right to instruct the BDR Depositary to vote the amount of our Class A ordinary shares represented by such BDRs. See “Item 10—B. Memorandum and Articles of Association.” However, a BDR holder may not know about a meeting sufficiently in advance to instruct the BDR Depositary to exercise its voting rights with respect to our Class A ordinary shares held by the custodian. After receiving such call notice, the BDR Depositary shall, within a short period of time, send a communication to the holders of BDRs, at the addresses they maintain with the BDR Depositary and/ or registered with B3 and the respective brokers or custody agents, which shall contain (a) the information contained in the notice received by the BDR Depositary, and (b) a statement that the holders of BDRs shall be entitled to send their voting instruction to the BDR Depositary until 5 (five) business days before the date of the meetings, by filling out a voting instruction according to the model to be forwarded together with the communication mentioned above. The voting instruction may be delivered via facsimile, mail or in person, at an address to be indicated by the BDR Depositary in the respective notice, within the period mentioned above.

The BDR Depositary, upon receiving such instructions in due time, will tabulate and forward the information to the custodian. The custodian, upon receipt of the information, will vote or appoint a proxy to vote at the shareholders meeting, in accordance with the voting instructions received from the BDR Depositary.

For instructions to be valid, the BDR Depositary must receive them on or before the date specified in the notice to you. The BDR Depositary will, to the extent practical and subject to Cayman Islands law and the provisions of our Memorandum and Articles of Association, vote the underlying Class A ordinary shares or other deposited securities as you instruct. If the BDR Depositary does not receive voting instructions from all BDR holders by the stipulated date, the BDR Depositary will exercise the voting right considering only the instructions received by BDR holders that have manifested themselves within the stipulated period.

The BDR Depositary will use its best efforts to vote or attempt to vote our Class A ordinary shares held by the custodian only if you have sent voting instructions and your instructions have been timely received. If we timely request the BDR Depositary to solicit your voting instructions but the BDR Depositary does not receive voting instructions from you by the specified date, it will not exercise the voting rights related to the Class A ordinary shares that it holds on your behalf.

 

We cannot ensure that you will receive voting materials in time to allow you to timely deliver your voting instructions to the BDR Depositary. In addition, the BDR Depositary and its agents are not responsible for failing to carry out voting instructions or for the manner of carrying out voting instructions. This means that you may not be able to vote and you may not have any recourse if your Class A ordinary shares are not voted as you requested. In addition, your ability to bring an action against us may be limited.

The voting rights of BDR holders will be different from the voting rights of holders of our Class A ordinary shares, as BDRs will be composed of fractions of shares. Thus, the voting right associated with a BDR will be proportional to the fraction of shares underlying each BDR.

Cancellation of Registration Before the CVM

We may cancel registration with the CVM for the trading of BDRs on the B3. If we elect to do so, we must immediately inform the BDR Depositary of this request and follow the procedures to discontinue the BDR program as set forth in the Issuer’s Manual of the B3.

Depositary Fees

The BDR Depositary has advised that holders of BDRs will be subject to the following fees: (a) for issuance or cancellation of BDRs, a fee of R$0.10 per BDR issued or canceled will be paid to the BDR Depositary Bank, (b) in respect of any dividend or other cash distribution declared by us, if the BDR are under Custody of any Broker house at B3 no fees will be paid to the BDR Depositary, (c) with respect to BDRs that are under custody of the BDR Depositary Bank, the fees per investor would be from R$ 1.50 to R$2.50, and (e) in respect of a transfer of ownership of BDRs out of the stock exchange (by over-the-counter transfer process, causa mortis, court permit, donation and others), a fixed fee of R$50.00 will be paid to the BDR Depositary. The BDR Depositary has further advised us that the foregoing fees relating to issuance or cancellation of BDRs will be payable by the investor through a brokerage house, and that the dividends and distributions will be discounted by the amount of the fee at the time that such dividend or distribution is paid.

Reports and Other Communications

The BDR Depositary will make available to you for inspection any reports and communications from us or made available by us at its principal executive office. The BDR Depositary will also, upon our written request, send to registered holders of BDRs copies of such reports and communications furnished by us under the deposit agreement. 

Any such reports or communications furnished by us to the BDR Depositary will be furnished in Portuguese when so required under any Brazilian legislation.

Amendment and Termination of the Deposit Agreement

Pursuant to Brazilian law, we may agree with the BDR Depositary to amend the deposit agreement and the rights granted by the BDRs for any reason and without a BDR holder’s consent. If such an amendment prejudices an important right of BDR holders, it will become effective only after 30 days from the time that the BDR Depositary notifies the BDR holder in writing of such amendment. At the time an amendment becomes effective, the BDR holder is considered, by continuing to hold its BDRs, to agree to the amendment and to be bound by the new terms of the deposit agreement and the rights granted by the BDRs.

The Deposit Agreement is signed for an indefinite period, and it is certain that, until the 18th month counted from the date of its respective signature, the Deposit Agreement cannot be terminated by any of the parties. After this minimum term has elapsed, the contract signed with the BDR Depositary will be valid for an indefinite period, and can be terminated at any time, by either party, without right to compensation or indemnity, upon notification from the interested party to the other party, with at least 180 days in advance, counted from the receipt of the communication by the other party.

 

Liability of Owner for Taxes

You will be responsible for any taxes or other governmental charges payable on your BDRs or on our Class A ordinary shares deposited with the custodian. See “Item 10. Additional Information—E. Taxation—Brazilian Tax Considerations” of our annual report on Form 20-F for the fiscal year ended December 31, 2021.

Limitations on Obligations and Liability to Holders of BDRs

The deposit agreement expressly limits our obligations and the obligations of the BDR Depositary, as well as our liability and the liability of the BDR Depositary. We and the BDR Depositary:

• are obligated only to take the actions specifically set forth in the deposit agreement without negligence or bad faith;
• are not liable if either of us is prevented or delayed by law or by circumstances beyond our control from performing our obligations under the deposit agreement;
• are not liable if either of us exercises discretion permitted under the deposit agreement; and
• may rely upon any documents we believe in good faith to be genuine and to have been signed or presented by the proper party.

Neither we nor the BDR Depositary will be liable for any failure to carry out any instructions to vote any of our Class A ordinary shares deposited with the custodian, or for the manner any vote is cast or the effect of any such vote, provided that any action or non-action is in good faith. The BDR Depositary has no obligation to become involved in a lawsuit or other proceeding related to the BDRs or the deposit agreement on your behalf or on behalf of any other person.

In the deposit agreement, we and the BDR Depositary agree to indemnify each other under certain circumstances.

Requirements for Depositary Services

Before the BDR Depositary delivers or registers transfers of BDRs, makes a distribution on BDRs or permits withdrawal of our Class A ordinary shares, the BDR Depositary may require:

• payment of share transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties for the transfer of any Class A ordinary shares or other deposited securities;
• production of satisfactory proof of citizenship or residence, exchange control approval or other information it deems necessary or proper; and
• compliance with regulations it may establish, from time to time, consistent with the agreement, including presentation of transfer documents.

The BDR Depositary may refuse to deliver, transfer or register transfers of BDRs generally when the books of the BDR Depositary are closed or at any time if the BDR Depositary believes it advisable to do so.

 

General

We agree to: (a) fulfill all obligations imposed by CVM Instruction No. 332/00, CVM Instruction No. 480/09 and other applicable regulations; (b) disclose, in Brazil, any information required by the CVM regulation applicable to non-Brazilian issuers; and (c) cooperate with the BDR Depositary to simultaneously disclose, in Brazil, information we provide in our country of organization and in the jurisdictions in which our securities are traded.

Except as otherwise provided in the applicable rules and regulations, including the rules and regulations of the CVM regarding registration of a BDR program (see “Item 4. Information on the Company—B. Business Overview—Regulatory Overview—Brazil—Registration of BDRs with the CVM” in our annual report on Form 20-F for the fiscal year ended December 31, 2021), neither we nor the BDR Depositary will have any liability or responsibility whatsoever or otherwise for any action or failure to act by any owner or holder of BDRs relating to the owner’s or holder’s obligations under any applicable Brazilian law or regulation relating to foreign investment in Brazil in respect of a withdrawal or sale of Class A ordinary shares deposited with the custodian, including, without limitation, (i) any failure to comply with a requirement to register the investment pursuant to the terms of any applicable Brazilian law or regulation prior to such withdrawal, or (ii) any failure to report foreign exchange transactions to the Central Bank of Brazil, as the case may be. Each owner or holder of BDRs will be responsible for the report of any false information relating to foreign exchange transactions to the BDR Depositary, the CVM or the Central Bank of Brazil in connection with deposits or withdrawals of Class A ordinary shares deposited with the custodian.

Service Requests to the BDR Depositary

Any request for services provided for in the deposit agreement to be performed by the BDR Depositary may be made to any of the BDR Depositary’s branches, or by telephone at +55 11-3684-4522.

12.D American Depositary Shares

Not applicable.

Exhibit 3.1

THE COMPANIES ACT (AS REVISED)

OF THE CAYMAN ISLANDS

NU HOLDINGS LTD.

An Exempted Company Limited By Shares

 

TWELFTH AMENDED AND RESTATED

MEMORANDUM

AND

ARTICLES OF ASSOCIATION

 

(Amended and Restated by Special Resolution passed on December 2, 2021 and effective on the closing date of the Company’s initial public offering of Class A Ordinary Shares)

 

 

TABLE OF CONTENTS

 

AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION					1
AMENDED AND RESTATED ARTICLES OF ASSOCIATION					3
1		PRELIMINARY			3
2		FORMATION EXPENSES			9
3		OFFICES OF THE COMPANY			9
4		SHARES			9
5		CLASS A ORDINARY SHARES AND CLASS B ORDINARY SHARES			13
6		SHARE CERTIFICATES			18
7		LIEN			18
8		CALLS ON SHARES AND FORFEITURE			19
9		TRANSFER OF SHARES			20
10		TRANSMISSION OF SHARES			22
11		CHANGES OF CAPITAL			22
12		REDEMPTION AND PURCHASE OF OWN SHARES			23
13		TREASURY SHARES			24
14		REGISTER OF MEMBERS			24
15		CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE			24
16		GENERAL MEETINGS			25
17		NOTICE OF GENERAL MEETINGS			26
18		PROCEEDINGS AT GENERAL MEETINGS			27
19		VOTES OF MEMBERS			29
20		NUMBER OF DIRECTORS AND CHAIRMAN			32
21		APPOINTMENT, DISQUALIFICATION AND REMOVAL OF DIRECTORS			32
22		POWERS OF DIRECTORS			35
23		DELEGATION OF DIRECTORS’ POWERS			37
24		REMUNERATION AND EXPENSES OF DIRECTORS			38
25		DIRECTORS’ GRATUITIES AND PENSIONS			39
26		DIRECTORS’ INTERESTS			39
27		PROCEEDINGS OF DIRECTORS			41
28		SECRETARY AND OTHER OFFICERS			43
29		MINUTES			43
30		SEAL			43
31		DIVIDENDS			44
32		FINANCIAL YEAR, ACCOUNTING RECORDS AND AUDIT			45
33		CAPITALISATION OF PROFITS			46
34		SHARE PREMIUM ACCOUNT			47
35		NOTICES			47
36		WINDING UP			49
37		INDEMNITY			49
38		CLAIMS AGAINST THE COMPANY			51
39		UNTRACEABLE MEMBERS			51
40		AMENDMENT OF MEMORANDUM AND ARTICLES			52
41		TRANSFER BY WAY OF CONTINUATION			53
42		MERGER AND CONSOLIDATION			53
43		SUBMISSION TO JURISDICTION			53

 

THE COMPANIES ACT (AS REVISED)

OF THE CAYMAN ISLANDS

TWELFTH AMENDED AND RESTATED

MEMORANDUM OF ASSOCIATION

OF

NU HOLDINGS LTD.

(Amended and Restated by Special Resolution passed on December 2, 2021 and effective on the closing date of the Company’s initial public offering of Class A Ordinary Shares)

 

1	The name of the Company is Nu Holdings Ltd.

 

2	The registered office of the Company shall be at the offices of Campbells Corporate Services Limited, Floor 4, Willow House, Cricket Square, Grand Cayman KY1-9010, Cayman Islands, or such other place as the Directors may from time to time determine.

 

3	The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by any law as provided by Section 7(4) of the Companies Act (as revised).

 

4	The Company shall have and be capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit as provided by Section 27(2) of the Companies Act (as revised).

 

5	Nothing in this Memorandum shall permit the Company to carry on a business for which a licence is required under the laws of the Cayman Islands unless duly licensed.

 

6

The Company shall not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands; provided that nothing in this clause shall be construed as to prevent the Company effecting and concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the carrying on of its business outside the Cayman Islands.

 

7	The liability of each Member is limited to the amount, if any, unpaid on such Member’s shares.

 

8

The authorized share capital of the Company is US$324,022.94 divided into 48,603,441,210 shares of a nominal or par value of US$0.000006666666667 each, each of which may be issued as Class A Ordinary Shares, Class B Ordinary Shares or shares of any class with such preferred, deferred or other special rights or restrictions as the Board may determine from time to time in accordance with Article 4 of the Articles of Association of the Company, provided that, subject to the Act and the Articles of Association, the Company shall have the power to issue all or any part of its authorized capital, whether original, redeemed, increased or reduced, with or without any preference, priority, special privilege or other rights or subject to any postponement of rights or to any condition or restriction whatsoever and so that, unless the conditions of issue shall otherwise expressly provide, every issue of shares, whether stated to be common, preference or otherwise shall be subject to the powers on the part of the Company hereinbefore provided.

 

1

 

 

9	The Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands.

 

10	Capitalised terms that are not defined in this Memorandum of Association bear the meaning given in the Articles of Association of the Company.

 

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THE COMPANIES ACT (AS REVISED)

OF THE CAYMAN ISLANDS

TWELFTH AMENDED AND RESTATED

ARTICLES OF ASSOCIATION

OF

NU HOLDINGS LTD.

(Amended and Restated by Special Resolution passed on December 2, 2021 and effective on the closing date of the Company’s initial public offering of Class A Ordinary Shares)

 

1	PRELIMINARY

 

1.1	The regulations contained in Table A in the First Schedule of the Act shall not apply to the Company and the following regulations shall be the Articles of Association of the Company.

 

1.2	In these Articles:

 

(a)

the following terms shall have the meanings set opposite if not inconsistent with the subject or context:

 

Act	The Companies Act (Revised);

 

allotment

shares are taken to be allotted when a person acquires the unconditional right to be included in the Register of Members in respect of those shares;

 

Affiliate

with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person, and (i) in the case of a natural person, shall include, without limitation, such person’s spouse, domestic partner, parents, step-parents, grandparents, children, step-children, grandchildren, siblings, nieces, nephews, mother-in-law and father-in-law, brothers- and sisters-in-law and sons-in-law and daughters-in-law, whether by blood, marriage or adoption, or anyone residing in such person’s home, a trust for the benefit of any of the foregoing, or a company, partnership or entity wholly or jointly owned by any of the foregoing, and (ii) in the case of an entity, shall include a partnership, corporation or any natural person or entity which, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such entity;

 

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Articles

these articles of association of the Company, as amended from time to time;

 

Board or Board of Directors

the board of directors of the Company;

 

Business Combination

a statutory amalgamation, merger, consolidation, arrangement or other reorganization involving the Company requiring the approval of the members of one or more of the participating companies as well as a short-form merger or consolidation that does not require a resolution of members;

 

Business Day

any day on which banks are not required or authorised by law to close in the City of New York, New York, USA or in São Paulo, State of São Paulo, Brazil;

 

B3	B3 S.A. - Brasil, Bolsa, Balcão;

 

Chairman

the chairman of the Board of Directors appointed in accordance with Article 20.2;

 

Change of Control

(i) the merger or consolidation of the Company or any of its subsidiaries with or into another Person (other than the Company or any of its wholly owned subsidiaries) or the merger of another Person (other than the Company or any of its wholly owned subsidiaries) with or into the Company or any of its subsidiaries, (ii) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to any Person other than a wholly owned subsidiary of the Company or (iii) any “person” or “group” (as such terms are used for purposes of Section 13(d) of the Exchange Act) is or becomes the a beneficial owner, directly or indirectly, of more than 50% of the Total Voting Power or acquires the power to direct or cause the direction of the management and policies of the Company, whether through the ownership of voting securities, by contract or otherwise.

 

Class A Ordinary Shares

class A ordinary shares of a nominal or par value of US$0.000006666666667 each in the capital of the Company having the rights provided for in these Articles;

 

Class B Ordinary Shares

class B ordinary shares of a nominal or par value of US$0.000006666666667 each in the capital of the Company having the rights provided for in these Articles;

 

clear days

in relation to a period of notice means that period excluding both the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect;

 

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Clearing House

a clearing house recognized by the laws of the jurisdiction in which shares in the capital of the Company (or depository receipts thereof) are listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction;

 

Company

the above named company, Nu Holdings Ltd., an exempted company incorporated in the Cayman Islands with limited liability;

 

Company’s Website

the website of the Company or its web-address or domain name;

 

control

the ownership, directly or indirectly, of shares possessing more than fifty per cent (50%) of the voting power of the corporation, partnership or other entity (other than, in the case of a corporation, shares having such power only by reason of the happening of a contingency), or having the power to control the management or elect a majority of members to the board of directors or equivalent decision-making body of such corporation, partnership or other entity;

 

CVM	the Comissão de Valores Mobiliários (The Securities and Exchange Commission of Brazil);

 

Designated Stock Exchange

the New York Stock Exchange, the B3 and any other stock exchange or interdealer quotation system listed in Schedule 4 of the Act on which shares in the capital of the Company are listed or quoted;

 

Directors

the Directors for the time being of the Company or, as the case may be, those Directors assembled as a Board or as a committee of the Board;

 

dividend

includes a distribution or interim dividend or interim distribution;

 

electronic

has the same meaning as in the Electronic Transactions Act (Revised);

 

electronic communication

a communication sent by electronic means, including electronic posting to the Company’s Website, transmission to any number, address or internet website (including the SEC’s and the CVM’s websites) or other electronic delivery methods as otherwise determined and approved by the Board;

 

electronic record

has the same meaning as in the Electronic Transactions Act (Revised);

 

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electronic signature

has the same meaning as in the Electronic Transactions Act (Revised);

 

Exchange Act

the Securities Exchange Act of 1934 of the United States of America, as amended, or any similar federal statute and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time;

 

executed

includes any mode of execution;

 

Founding Shareholder

David Vélez, so long as he or any of his Affiliates shall “beneficially own” (as such term is defined in Rule 13d-3 of the Exchange Act) any Company shares;

 

holder

in relation to any share, the Member whose name is entered in the Register of Members as the holder of the share;

 

Incentive Plan

any incentive plan or scheme established or implemented by the Company pursuant to which any Person who provides services of any kind to the Company or any of its direct or indirect subsidiaries (including, without limitation, any employee, executive, officer, director, consultant, secondee or other provider of services) may receive or acquire newly-issued shares of the Company or any interest therein;

 

Indemnified Person

every Director, Secretary or other officer for the time being or from time to time of the Company;

 

Islands

the British Overseas Territory of the Cayman Islands;

 

Member

has the same meaning as in the Act;

 

Memorandum

the memorandum of association of the Company as from time to time amended;

 

month

a calendar month;

 

officer

any person appointed as an officer of the Company, including a Secretary;

 

Ordinary Resolution

a resolution (i) of a duly constituted general meeting of the Company at which a quorum is present passed by a simple majority of the votes cast by, or on behalf of, the Members entitled to vote present in person or by proxy and voting at the meeting, or (ii) approved in writing by all of the Members entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Members and the effective date of the resolution so adopted shall be the date on which the instrument, or the last of such instruments, if more than one, is executed;

 

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Ordinary Shares

Class A Ordinary Shares, Class B Ordinary Shares and shares of such other classes as may from time to time be designated by the Board pursuant to these Articles as being ordinary shares for the purposes of Article 5.3;

 

Other Indemnitors

persons or entities other than the Company that may provide indemnification, advancement of expenses or insurance to the Indemnified Persons in connection with such Indemnified Persons’ involvement in the management of the Company;

 

paid up

paid up as to the par value of the shares and includes credited as paid up;

 

Person

any individual, corporation, general or limited partnership, limited liability company, joint stock company, joint venture, estate, trust, association, organization or any other entity or governmental entity;

 

Register of Members

the register of Members required to be kept pursuant to the Act;

 

Seal	the common seal of the Company including every duplicate seal;

 

SEC	the Securities and Exchange Commission of the United States of America or any other federal agency for the time administering the Securities Act;

 

Secretary

any person appointed by the Directors to perform any of the duties of the secretary of the Company, including a joint, assistant or deputy secretary;

 

Securities Act

the Securities Act of 1933 of the United States of America, as amended, or any similar federal statute and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time;

 

share

a share in the share capital of the Company, and includes stock (except where a distinction between shares and stock is expressed or implied) and includes a fraction of a share;

 

Shareholders’ Agreement

the Shareholders’ Agreement dated as of November 29, 2021 among the Company and certain of its Members;

 

signed

includes an electronic signature or a representation of a signature affixed by mechanical means;

 

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Special Resolution

a special resolution passed in accordance with the Act, being a resolution: (i) passed by at least two-thirds of such Members as, being entitled to do so, vote in person or by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a Special Resolution has been duly given; or (ii) approved in writing by all of the Members entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Members;

 

subsidiary

a company is a subsidiary of another company if that other company: (i) holds a majority of the voting rights in it; (ii) is a member of it and has the right to appoint or remove a majority of its board of directors; or (iii) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it; or if it is a subsidiary of a company which is itself a subsidiary of that other company. For the purpose of this definition the expression company includes any body corporate established in or outside of the Islands;

 

Treasury Share

a share held in the name of the Company as a treasury share in accordance with the Act;

 

Total Voting Power

the aggregate voting power of all issued shares of the Company having the right to receive notice of, attend, speak and vote at general meetings of the Company, voting together as a single class;

 

Vice Chairman

the vice chairman of the Board of Directors appointed in accordance with Article 20.2;

 

U.S. Person

a Person who is a citizen or resident of the United States of America; and

 

written and in writing

includes all modes of representing or reproducing words in visible form including in the form of an electronic record.

 

(b)

unless the context otherwise requires, words or expressions defined in the Act shall have the same meanings herein but excluding any statutory modification thereof not in force when these Articles become binding on the Company;

 

(c)

unless the context otherwise requires: (i) words importing the singular number shall include the plural number and vice-versa; (ii) words importing the masculine gender only shall include the feminine gender; (iii) the word “or” is not exclusive; and (iv) words importing persons shall include companies or associations or bodies of person whether incorporated or not as well as any other legal or natural person;

 

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(d)

any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;

 

(e)

the word may shall be construed as permissive and the word shall shall be construed as imperative;

 

(f)

the headings herein are for convenience only and shall not affect the construction of these Articles;

 

(g)

references to statutes are, unless otherwise specified, references to statutes of the Islands and, subject to paragraph (b) above, include any statutory modification or re-enactment thereof for the time being in force; and

 

(h)

where an Ordinary Resolution is expressed to be required for any purpose, a Special Resolution is also effective for that purpose.

 

2	FORMATION EXPENSES

The Directors may pay, out of the capital or any other monies of the Company, all expenses incurred in or about the formation and establishment of the Company including the expenses of registration.

 

3	OFFICES OF THE COMPANY

 

3.1	The registered office of the Company shall be at such address in the Islands as set out in the Memorandum or as the Board shall otherwise from time to time determine.

 

3.2	The Company, in addition to its registered office, may establish and maintain such other offices, places of business and agencies in the Islands and elsewhere as the Board may from time to time determine.

 

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SHARES

 

4.1

 

(a)

Subject to the rules of any Designated Stock Exchange and to the provisions, if any, in the Memorandum and these Articles, the Board has general and unconditional authority to allot, grant options over, offer or otherwise deal with or dispose of any unissued shares in the capital of the Company without the approval of Members (whether forming part of the original or any increased share capital), either at a premium or at par, with or without preferred, deferred or other special rights or restrictions, whether in regard to dividend, voting, return of capital or otherwise and to such persons, on such terms and conditions, and at such times as the Board may determine, but so that no share shall be issued at a discount to par, except in accordance with the provisions of the Act.

 

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(b)

In particular and without prejudice to the generality of paragraph (a) above, the Board is hereby empowered to authorise by resolution or resolutions from time to time and without the approval of Members:

 

(i)

the creation of one or more classes or series of preferred shares, to cause to be issued such preferred shares and to fix the designations, powers, preferences and relative participating, optional and other rights, if any, and the qualifications, limitations and restrictions thereof, if any, including, without limitation, the number of shares constituting each such class or series, dividend rights, conversion rights, redemption privileges, voting rights and powers (including full or limited or no voting rights or powers) and liquidation preferences, and to increase or decrease the number of shares comprising any such class or series (but not below the number of shares of any class or series of preferred shares then in issue) to the extent permitted by law. Without limiting the generality of the foregoing, the resolution or resolutions providing for the establishment of any class or series of preferred shares may, to the extent permitted by law, provide that such class or series shall be superior to, rank equally with or be junior to the preferred shares of any other class or series;

 

(ii)

to designate for issuance as Class A Ordinary Shares or Class B Ordinary Shares from time to time any or all of the authorised but unissued shares of the Company which have not at that time been designated by the Memorandum or by the Directors as being shares of a particular class;

 

(iii)

to create one or more further classes of shares which represent ordinary shares for the purposes of Article 5.3; and

 

(iv)

to re-designate authorised but unissued Class A Ordinary Shares or Class B Ordinary Shares from time to time as shares of another class.

 

(c)

The Company shall not issue shares or warrants to bearer.

 

(d)

Subject to the rules of any Designated Stock Exchange, the Board shall have general and unconditional authority to issue options, warrants or convertible securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of shares or securities in the capital of the Company to such persons, on such terms and conditions and at such times as the Board may determine.

 

4.2	Notwithstanding Article 4.1, at any time when there are Class A Ordinary Shares in issue, Class B Ordinary Shares may only be issued pursuant to:

 

(a)

a share-split, subdivision or similar transaction or as contemplated in Articles 5.8 or 33.1(b) below;

 

(b)

a Business Combination involving the issuance of Class B Ordinary Shares as full or partial consideration; or

 

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(c)

an issuance of Class A Ordinary Shares, whereby holders of Class B Ordinary Shares are entitled to purchase a number of Class B Ordinary Shares that would allow them to maintain their proportional ownership interest in the Company pursuant to Article 4.3.

 

4.3	With effect from the date on which any shares of the Company are first admitted to trading on a Designated Stock Exchange, subject to Articles 4.4, 4.5 and 4.6, the Company shall not issue Ordinary Shares and/or preferred shares to a person on any terms unless:

 

(a)

it has made an offer to each person who holds Class B Ordinary Shares to issue to him on the same economic terms such number of Class B Ordinary Shares as would allow each holder of Class B Ordinary Shares to maintain its proportional ownership interest in the Company; and

 

(b)

the period during which any such offer set forth in Article 4.3(a) may be accepted has expired or the Company has received notice of the acceptance or refusal of every offer so made in accordance with Article 4.3(a).

An offer made pursuant to this Article 4.3 may be made in either hard copy or by electronic communication, must state a period during which it may be accepted and the offer shall not be withdrawn before the end of that period. The period referred to must be at least fifteen (15) Business Days beginning with the date on which the offer is deemed to be delivered in accordance with Article 35.

 

4.4	An offer shall not be regarded as being made contrary to the requirements of Article 4.3 by reason only that:

 

(a)

fractional entitlements are rounded or otherwise settled or sold at the discretion of the Board, as long as it does not materially negatively impact the proportional ownership interest of the Class B Ordinary Shares; or

 

(b)

no offer of Class B Ordinary Shares is made to a Member where the making of such an offer would in the view of the Board pose legal or practical problems in or under the laws or securities rules of any territory or the requirements of any regulatory body or stock exchange such that the Board considers it is necessary or expedient in the interests of the Company to exclude such Member from the offer; or

 

(c)

the offer is conditional upon the said issue of Ordinary Shares and/or preferred shares proceeding.

 

4.5	The provisions of Article 4.3 do not apply in relation to the issue of:

 

(a)

Class A Ordinary Shares if these are, or are to be, wholly or partly paid up otherwise than in cash;

 

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(b)

Class A Ordinary Shares which would, apart from any renunciation or assignment of the right to their allotment, be held under or issued pursuant to an Incentive Plan; and

 

(c)

Class A Ordinary Shares issued in furtherance of an initial public offering of shares of the Company or issued to underwriters in connection with an initial pubic offering pursuant to any over-allotment options granted by the Company.

 

4.6

Holders of Class B Ordinary Shares may from time to time by consent in writing (in one or more counterparts) approved by the holder or holders of all Class B Ordinary Shares then in issue, referring to this Article 4.6, authorise the Board to issue Ordinary Shares for cash and, on the granting of such an authority, the Board shall have the power to issue (pursuant to that authority) Ordinary Shares for cash as if Article 4.3 above did not apply to:

 

(a)

one or more issuances of Class A Ordinary Shares to be made pursuant to that authority; and/or

 

(b)

such issuances with such modifications as may be specified in that authority.

Unless previously revoked, the authority granted in accordance with this Article 4.6 shall expire on the date (if any) specified in the authority or, if no date is specified, twelve (12) months after the date on which the authority is granted, but the Company may before the power expires make an offer or agreement which would or might require Class A Ordinary Shares to be issued after it expires.

 

4.7

The Company may issue fractions of a share of any class and a fraction of a share shall be subject to and carry the corresponding fraction of liabilities (whether with respect to nominal or par value, premium, contribution, calls or otherwise howsoever), limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a whole share of that class of shares.

 

4.8

The Company may, in so far as the Act permits, pay a commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, or procuring or agreeing to procure subscriptions (whether absolute or conditional) for any shares in the capital of the Company. Such commissions may be satisfied by the payment of cash or the allotment of fully or partly paid up shares or partly in one way and partly in the other. The Company may also, on any issue of shares, pay such brokerage fees as may be lawful.

 

4.9

Except as required by law, no person shall be recognised by the Company as holding any share upon any trust and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any share (except only as by these Articles or by law otherwise provided) or any other rights in respect of any share except an absolute right to the entirety thereof in the holder.

 

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4.10

 

(a)

If at any time the share capital is divided into different classes of shares, the rights attached to any class of shares (unless otherwise provided by these Articles or the terms of issue of the shares of that class) may be varied with the consent in writing of the holders of two-thirds of the issued shares of that class or with the sanction of a Special Resolution passed at a separate general meeting of the holders of the shares of that class. To every such separate general meeting, the provisions of these Articles relating to general meetings shall mutatis mutandis apply, but so that the necessary quorum shall be any one or more persons holding or representing by proxy not less than two-thirds of the issued shares of the applicable class and that any holder of shares of that class present in person or by proxy may demand a poll.

 

(b)

For the purposes of Article 4.10(a), the Directors may treat all classes of shares or any two or more classes of shares as forming one class if they consider that all such classes would be affected in the same way by the proposals under consideration.

 

(c)

The rights conferred upon the holders of the shares of any class shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by:

 

(i)

the creation or issue of further shares ranking pari passu therewith;

 

(ii)

the redemption, purchase or conversion (in any manner permitted by law) of any shares of any class by the Company;

 

(iii)

the cancellation of authorised but unissued shares of that class; or

 

(iv)

the creation or issue of shares with preferred or other rights including, without limitation, the creation of any class or issue of shares with enhanced or weighted voting rights.

 

(d)

The rights conferred upon holders of Class A Ordinary Shares shall not be deemed to be varied by the creation or issue from time to time of further Class B Ordinary Shares and the rights conferred upon holders of Class B Ordinary Shares shall not be deemed to be varied by the creation or issue from time to time of further Class A Ordinary Shares.

 

4.11

The Directors may accept contributions to the capital of the Company otherwise than in consideration of the issue of shares and the amount of any such contribution may, unless otherwise agreed at the time such contribution is made, be treated by the Company as a distributable reserve, subject to the provisions of the Act and these Articles.

 

5	CLASS A ORDINARY SHARES AND CLASS B ORDINARY SHARES

 

5.1	The rights of the holders of Class A Ordinary Shares and Class B Ordinary Shares are identical, except with respect to voting, conversion and transfer restrictions applicable to the Class B Ordinary Shares as set out in these Articles.

 

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5.2

Holders of Class A Ordinary Shares and holders of Class B Ordinary Shares have the right to receive notice of, attend, speak and vote at general meetings of the Company. Subject to any separate general meeting(s) of the holders of a class of shares in accordance with Article 4.10(a) above, holders of Class A Ordinary Shares and Class B Ordinary Shares shall at all times vote together as one class on all resolutions submitted to a vote by the Members in general meetings. Each Class A Ordinary Share shall entitle the holder to 1 vote on all matters subject to a vote at general meetings of the Company, and each Class B Ordinary Share shall entitle the holder to 20 votes on all matters subject to a vote at general meetings of the Company.

 

5.3	Without prejudice to any special rights conferred thereby on the holders of any other shares or class of shares established pursuant to the Memorandum or these Articles from time to time, holders of Class A Ordinary Shares and holders of Class B Ordinary Shares shall:

 

(a)

be entitled to such dividends as the Board may from time to time declare;

 

(b)

in the event of a winding-up or dissolution of the Company, whether voluntary or involuntary or for the purposes of a reorganization or otherwise or upon any distribution of capital, be entitled to the surplus assets of the Company; and

 

(c)

generally be entitled to enjoy all of the rights attaching to Class A Ordinary Shares and Class B Ordinary Shares.

 

5.4	In no event shall Class A Ordinary Shares be convertible into Class B Ordinary Shares.

 

5.5	Class B Ordinary Shares shall be convertible or converted into Class A Ordinary Shares as follows:

 

(a)

Class B Ordinary Shares shall be convertible into the same number of Class A Ordinary Shares, on a share-to-share basis, in the following manner:

 

(1)

a holder of Class B Ordinary Shares has the right to call upon the Company to effect a conversion of all or any of its Class B Ordinary Shares into the same number of Class A Ordinary Shares which right shall be exercised, at any time after issue and without payment of any additional sum (subject to any moneys unpaid on their shares in accordance with Article 8), by notice in writing given to the Company at its registered office (and which conversion shall be effected by the Company promptly upon delivery of said notice);

 

(2)

the holder(s) of a majority of the Class B Ordinary Shares in issue have the right to require that all Class B Ordinary Shares in issue be converted into the same number of Class A Ordinary Shares, which right shall be exercised, at any time after issue and without payment of any additional sum (subject to any moneys unpaid on their shares in accordance with Article 8), by notice in writing (which may be in one or more counterparts) signed by the holder(s) of a majority of the Class B Ordinary Shares in issue and given to the Company at its registered office (and which conversion shall be effected by the Company promptly upon delivery of said notice);

 

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(3)

a Class B Ordinary Share shall automatically convert into a Class A Ordinary Share immediately and without further action by the holder thereof upon the registration of any transfer of a Class B Ordinary Share (whether or not for value and whether or not the certificate(s) (if any) representing such Class B Ordinary Share is surrendered to the Company), other than:

 

(i)

a transfer to an Affiliate of the holder of the Class B Ordinary Share;

 

(ii)

a transfer to one or more trustees of a trust established for the benefit of the holder or an Affiliate of the holder of the Class B Ordinary Share;

 

(iii)

a transfer to an organization that is exempt from taxation under Section 501(3)(c) of the United States Internal Revenue Code of 1986, as amended (or any successor thereto), or to an organization that is exempt from taxation in Brazil under Sections 184, 377 or 378 of the 2018 Internal Tax Regulations, as amended (or any successor thereto), and that is controlled, directly or indirectly through one or more intermediaries, by the holder of the Class B Ordinary Share; or

 

(iv)

a transfer to a partnership, corporation or other entity owned or controlled by the holder or an Affiliate of the holder of the Class B Ordinary Share.

For the avoidance of doubt, the creation of any pledge, charge, encumbrance or other security interest or third party right of whatever description on any Class B Ordinary Shares to secure a holder’s contractual or legal obligations shall not be deemed to be a transfer unless and until any such pledge, charge, encumbrance or other third party right is enforced and results in such third party (or its nominee) holding legal title to the related Class B Ordinary Shares, in which case all the related Class B Ordinary Shares shall be automatically and immediately converted into the same number of Class A Ordinary Shares. The conversion of Class B Ordinary Shares to Class A Ordinary Shares shall occur prior to any effective transfer not authorised in Article 5.5(a)(2)(i)-(iv) above.

 

(4)

If, on the record date for any meeting of the Members, the total voting power of all the Class B Ordinary Shares in issue represents less than 10% of the Total Voting Power, the Class B Ordinary Shares then in issue shall automatically and immediately convert into Class A Ordinary Shares and no Class B Ordinary Shares shall be issued by the Company thereafter.

 

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(b)

Mechanics of Conversion. Before any holder of Class B Ordinary Shares shall be entitled to convert such Class B Ordinary Shares into Class A Ordinary Shares pursuant to sub-paragraph 5.5(a)(1) above, the holder shall, if available, surrender the certificate or certificates therefor (if any), duly endorsed (where applicable), at the registered office of the Company.

Upon the occurrence of one of the bases of conversion provided for in paragraph 5.5(a) above, the Company shall enter or procure the entry of the name of the relevant holder of Class B Ordinary Shares as the holder of the relevant number of Class A Ordinary Shares resulting from the conversion of the Class B Ordinary Shares in, and make any other necessary and consequential changes to, the Register of Members and shall procure that certificate(s) in respect of the relevant Class A Ordinary Shares, together with a new certificate for any unconverted Class B Ordinary Shares represented by the certificate(s) surrendered by the holder of the Class B Ordinary Shares (if any), are issued to the holders of the Class A Ordinary Shares and Class B Ordinary Shares, as the case may be, if so requested.

Any conversion of Class B Ordinary Shares into Class A Ordinary Shares pursuant to this Article 5 shall be effected by any manner permitted by applicable law (including by means of (i) the re-designation and re-classification of the relevant Class B Ordinary Share as a Class A Ordinary Share together with such rights and restrictions for the time being attached thereto and shall rank pari passu in all respects with the Class A Ordinary Shares then in issue and/or (ii) the compulsory redemption without notice of Class B Ordinary Shares and the automatic application of the redemption proceeds in paying for such new Class A Ordinary Shares into which the Class B Ordinary Shares have been converted). For the avoidance of doubt, following the conversion to Class A Ordinary Shares, the holder thereof shall have Class A Ordinary Share voting rights in respect of such shares and not Class B Ordinary Share voting rights. Such conversion shall become effective forthwith upon entries being made in the Register of Members to record the conversion.

If the proposed conversion is in connection with an underwritten or other public or private offering of securities, the conversion may, at the option of any holder tendering such Class B Ordinary Shares for conversion, be conditional upon the closing with the underwriters or other purchasers of the sale of securities pursuant to such offering, in which event any persons entitled to receive Class A Ordinary Shares upon conversion of such Class B Ordinary Shares shall not be deemed to have converted such Class B Ordinary Shares until immediately prior to the closing of such sale of securities.

 

(c)

Effective upon and with effect from the conversion of a Class B Ordinary Share into a Class A Ordinary Share in accordance with this Article 5.5, the converted share shall be treated for all purposes as a Class A Ordinary Share and shall carry the rights and be subject to the restrictions attaching to Class A Ordinary Shares including, without limitation, the right to one vote on matters subject to a vote at general meetings of the Company.

 

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5.6

No subdivision of Class A Ordinary Shares into shares of an amount smaller than the nominal or par value of such shares at the relevant time shall be effected unless Class B Ordinary Shares are concurrently and similarly subdivided in the same proportion and the same manner, and no subdivision of Class B Ordinary Shares into shares of an amount smaller than the nominal or par value of such shares at the relevant time shall be effected unless Class A Ordinary Shares are concurrently and similarly subdivided in the same proportion and the same manner.

 

5.7

No consolidation of Class A Ordinary Shares into shares of an amount larger than the nominal or par value of such shares at the relevant time shall be effected unless Class B Ordinary Shares are concurrently and similarly consolidated in the same proportion and the same manner, and no consolidation of Class B Ordinary Shares into shares of an amount larger than the nominal or par value of such shares at the relevant time may be effected unless Class A Ordinary Shares are concurrently and similarly consolidated in the same proportion and the same manner.

 

5.8

In the event that a dividend or other distribution is paid by the issue of Class A Ordinary Shares or Class B Ordinary Shares or rights to acquire Class A Ordinary Shares or Class B Ordinary Shares (i) holders of Class A Ordinary Shares shall receive Class A Ordinary Shares or rights to acquire Class A Ordinary Shares, as the case may be; and (ii) holders of Class B Ordinary Shares shall receive Class B Ordinary Shares or rights to acquire Class B Ordinary Shares, as the case may be.

 

5.9

No Business Combination (whether or not the Company is the surviving entity) shall proceed unless by the terms of such transaction: (i) the holders of Class A Ordinary Shares have the right to receive, or the right to elect to receive, the same form of consideration as the holders of Class B Ordinary Shares, and (ii) the holders of Class A Ordinary Shares have the right to receive, or the right to elect to receive, at least the same amount of consideration on a per share basis as the holders of Class B Ordinary Shares. The Directors shall not approve such a transaction unless the requirements of this Article are satisfied. For the avoidance of doubt, this Article refers to and includes only economic rights.

 

5.10

No tender or exchange offer to acquire any Class A Ordinary Shares or Class B Ordinary Shares by any third party pursuant to an agreement to which the Company is to be a party, nor any tender or exchange offer by the Company to acquire any Class A Ordinary Shares or Class B Ordinary Shares, shall be approved by the Company unless by the terms of such transaction: (i) the holders of Class A Ordinary Shares shall have the right to receive, or the right to elect to receive, the same form of consideration as the holders of Class B Ordinary Shares, and (ii) the holders of Class A Ordinary Shares shall have the right to receive, or the right to elect to receive, at least the same amount of consideration on a per share basis as the holders of Class B Ordinary Shares. The Directors shall not approve such a transaction unless the requirements of this Article are satisfied. For the avoidance of doubt, this Article refers to and includes only economic rights.

 

5.11

Save and except for voting rights, conversion rights and transfer rights, Class A Ordinary Shares and Class B Ordinary Shares shall rank pari passu and shall have the same rights, preferences, privileges and restrictions and share ratably and otherwise be identical in all respects as to all matters.

 

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6	SHARE CERTIFICATES

 

6.1

A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise certificates to be issued with the authorised signature(s) affixed by mechanical process. All certificates for shares shall be consecutively numbered or otherwise identified and shall specify the shares to which they relate. All certificates surrendered to the Company for transfer or conversion shall be cancelled and subject to the Articles and, save as provided in Articles 6.3, 7, and 8 below and in the case of a conversion of shares pursuant to Article 4.1, no new certificate shall be issued until the former certificate representing a like number of relevant shares shall have been surrendered and cancelled.

 

6.2	Every share certificate of the Company shall bear legends required under the applicable laws, including the Securities Act.

 

6.3

If a share certificate is defaced, worn-out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and payment of the expenses reasonably incurred by the Company in investigating evidence as the Directors may determine but otherwise free of charge, and (in the case of defacement or wearing-out) on delivery to the Company of the old certificate.

 

7

LIEN

 

7.1

The Company shall have a first and paramount lien on every share (not being a share which is fully paid as to its par value and share premium) for all moneys (whether presently payable or not) payable at a fixed time or called in respect of that share (including any premium payable). The Directors may at any time declare any share to be wholly or in part exempt from the provisions of this Article. The Company’s lien on a share shall extend to any amount in respect of it.

 

7.2

The Company may sell in such manner as the Directors determine any shares on which the Company has a lien if a sum in respect of which the lien exists is presently payable and is not paid within fourteen (14) clear days after notice has been given to the holder of the share or to the person entitled to it in consequence of the death or bankruptcy of the holder, demanding payment and stating that if the notice is not complied with the shares may be sold.

 

7.3

To give effect to a sale, the Directors may authorise some person to execute an instrument of transfer of the shares sold to, or in accordance with the directions of, the purchaser. The title of the transferee to the shares shall not be affected by any irregularity or invalidity in the proceedings in reference to the sale.

 

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7.4

The net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the sum for which the lien exists as is presently payable, and any residue shall (upon surrender to the Company for cancellation of the certificate for the shares sold, if any, and subject to a like lien for any moneys not presently payable as existed upon the shares before the sale) be paid to the person entitled to the shares at the date of the sale.

 

8	CALLS ON SHARES AND FORFEITURE

 

8.1

Subject to the terms of allotment, the Directors may make calls upon the Members in respect of any moneys unpaid on their shares (whether in respect of nominal value or premium) and each Member shall (subject to receiving at least fourteen (14) clear days’ notice specifying when and where payment is to be made) pay to the Company as required by the notice the amount called on his shares. A call may be required to be paid by instalments. A call may, before receipt by the Company of any sum due thereunder, be revoked in whole or in part and payment of a call may be postponed in whole or in part. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the shares in respect of which the call was made.

 

8.2	A call shall be deemed to have been made at the time when the resolution of the Directors authorising the call was passed.

 

8.3	The joint holders of a share shall be jointly and severally liable to pay all calls in respect of the share.

 

8.4

If a call remains unpaid after it has become due and payable, the person from whom it is due and payable shall pay interest on the amount unpaid from the day it became due and payable until it is paid at the rate fixed by the terms of allotment of the share or in the notice of the call or, if no rate is fixed, at an annual rate of ten percent (10%), but the Directors may waive payment of the interest wholly or in part.

 

8.5

An amount payable in respect of a share on allotment or at any fixed date, whether in respect of nominal value or premium or as an instalment of a call, shall be deemed to be a call, and if it is not paid when due, all the provisions of the Articles shall apply as if that amount had become due and payable by virtue of a call.

 

8.6	Subject to the terms of allotment, the Directors may make arrangements on the issue of shares for a difference between the holders in the amounts and times of payment of calls on their shares.

 

8.7

If a call remains unpaid after it has become due and payable, the Directors may give to the person from whom it is due not less than fourteen (14) clear days’ notice requiring payment of the amount unpaid, together with any interest which may have accrued. The notice shall name the place where payment is to be made and shall state that if the notice is not complied with the shares in respect of which the call was made will be liable to be forfeited.

 

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8.8

If the notice is not complied with, any share in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Directors and the forfeiture shall include all dividends or other moneys payable in respect of the forfeited shares and not paid before the forfeiture.

 

8.9

Subject to the provisions of the Act, a forfeited share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors determine either to the person who was before the forfeiture the holder or to any other person, and at any time before a sale, re-allotment or other disposition, the forfeiture may be cancelled on such terms as the Directors think fit. Where, for the purposes of its disposal a forfeited share is to be transferred to any person, the Directors may authorise any person to execute an instrument of transfer of the share to that person.

 

8.10

A person any of whose shares have been forfeited shall cease to be a Member in respect of them and shall surrender to the Company for cancellation the certificate for the shares forfeited, if any, but shall remain liable to the Company for all moneys which at the date of forfeiture were presently payable by him to the Company in respect of those shares with interest at the rate at which interest was payable on those moneys before the forfeiture or, if no interest was so payable, at an annual rate of ten percent (10%), from the date of forfeiture until payment but the Directors may waive payment wholly or in part or enforce payment without any allowance for the value of the shares at the time of forfeiture or for any consideration received on their disposal.

 

8.11

A statutory declaration by a Director or the Secretary that a share has been forfeited on a specified date shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share and the declaration shall (subject to the execution of an instrument of transfer if necessary) constitute a good title to the share and the person to whom the share is disposed of shall not be bound to see to the application of the consideration, if any, nor shall his title to the share be affected by any irregularity in or invalidity of the proceedings in reference to the forfeiture or disposal of the share.

 

9	TRANSFER OF SHARES

 

9.1

Subject to these Articles (including the limitation on transfers of Class B Ordinary Shares as set out in Article 5.5), any Member may transfer all or any of his shares by an instrument of transfer in the usual or common form or in a form prescribed by any Designated Stock Exchange or in any other form approved by the Board and may be under hand or, if the transferor or transferee is a Clearing House, by hand or by electronic signature or by such other manner of execution as the Board may approve from time to time. Without prejudice to the generality of the foregoing, title to listed shares of the Company may be evidenced and transferred in accordance with the laws applicable to and the rules and regulations of the Designated Stock Exchange on which such shares are listed.

 

9.2

The instrument of transfer shall be executed by or on behalf of the transferor and the transferee provided that the Board may dispense with the execution of the instrument of transfer by the transferee in any case which it thinks fit in its discretion to do so. Without prejudice to Article 9.1, the Board may also resolve, either generally or in any particular case, upon request by either the transferor or transferee, to accept mechanically executed transfers including, where applicable, in accordance with the laws and rules applicable to the Designated Stock Exchange. The transferor shall be deemed to remain the holder of the share until the name of the transferee is entered in the Register of Members in respect thereof. Nothing in these Articles shall preclude the Board from recognizing a renunciation of the allotment or provisional allotment of any share by the allottee in favour of some other person.

 

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9.3	The Board may in its absolute discretion and without giving any reason therefor, refuse to register a transfer of any share:

 

(a)

that is not fully paid up (as to both par value and any premium) to a person of whom it does not approve;

 

(b)

issued under any Incentive Plan upon which a restriction on transfer imposed thereby still subsists;

 

(c)

to more than four joint holders; or

 

(d)

on which the Company has a lien.

 

9.4	Without limiting the generality of Article 9.3, the Board may also decline to recognise any instrument of transfer unless:

 

(a)

a fee of such maximum sum as any Designated Stock Exchange may determine to be payable or such lesser sum as the Board may from time to time require is paid to the Company in respect thereof;

 

(b)

the instrument of transfer is in respect of only one class of shares;

 

(c)

the Shares are fully paid (as to both par value and any premium) and free of any lien;

 

(d)

the instrument of transfer is lodged at the registered office or such other place at which the Register of Members is kept in accordance with the Act accompanied by any relevant share certificate(s), if any, and/or such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer (and, if the instrument of transfer is executed by some other person on his behalf, the authority of that person so to do); and

 

(e)

if applicable, the instrument of transfer is duly and properly stamped.

 

9.5	If the Directors refuse to register a transfer of a share, they shall within two (2) months after the date on which the transfer was lodged with the Company send to the transferee notice of the refusal.

 

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9.6

The registration of transfers of shares or of any class of shares may, after compliance with any notice requirement of any Designated Stock Exchange, be suspended and the Register of Members be closed at such times and for such periods (not exceeding in the whole thirty (30) days in any year) as the Board may determine.

 

9.7	The Company shall be entitled to retain any instrument of transfer which is registered, but any instrument of transfer which the Directors refuse to register shall be returned to the person lodging it when notice of the refusal is given.

 

10	TRANSMISSION OF SHARES

 

10.1

If a Member dies, his personal representatives or his legal successor (where he was a sole holder) or the survivor of joint holders (in case of joint ownership) shall be the only persons recognised by the Company as having any title to his interest; but nothing in these Articles shall release the estate of a deceased Member from any liability in respect of any share which had been jointly held by him.

 

10.2

A person becoming entitled to a share in consequence of the death or bankruptcy of a Member may, upon such evidence being produced as the Directors may properly require, elect either to become the holder of the share or to have some person nominated by him registered as the transferee. If he elects to become the holder he shall give notice to the Company to that effect. If he elects to have another person registered he shall execute an instrument of transfer of the share to that person. All the Articles relating to the transfer of shares shall apply to the notice or instrument of transfer as if it were an instrument of transfer executed by the Member and the death or bankruptcy of the Member had not occurred.

 

10.3

A person becoming entitled to a share by reason of the death or bankruptcy of a Member shall have the rights to which he would be entitled if he were the holder of the share, except that he shall not, before being registered as the holder of the share, be entitled in respect of such share to attend or vote at any meeting of the Company or at any separate meeting of the holders of any class of shares in the Company.

 

10.4

For the avoidance of doubt, if a holder of Class B Ordinary Shares dies or becomes bankrupt then such Class B Ordinary Shares held at the time of death or bankruptcy shall maintain all of their rights and no conversion shall apply to such Class B Ordinary Shares upon transmission of such shares to the new holder who must be an Affiliate.

 

11	CHANGES OF CAPITAL

 

11.1	Subject to and in so far as permitted by the provisions of the Act and these Articles, the Company may from time to time by Ordinary Resolution alter or amend the Memorandum to:

 

(a)

increase its share capital by such sum, to be divided into shares of such amount, as the resolution shall prescribe;

 

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(b)

consolidate and divide all or any of its share capital into shares of larger amounts than its existing shares;

 

(c)

convert all or any of its paid up shares into stock and reconvert that stock into paid up shares of any denomination;

 

(d)

sub-divide its existing shares, or any of them, into shares of smaller amounts than is fixed by the Memorandum, provided, that in the subdivision, the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived; and

 

(e)

cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.

 

11.2	For the avoidance of doubt, the Directors shall have the ability to issue shares within the authorized share capital of the Company thereby changing the issued share capital of the Company and no Ordinary Resolution shall be required for such issuances.

 

11.3	Except so far as otherwise provided by the conditions of issue, the new shares shall be subject to the same provisions with reference to the payment of calls, liens, transfer, transmission, forfeiture and otherwise as the shares in the original share capital.

 

11.4

Whenever as a result of a consolidation of shares any Members would become entitled to fractions of a share, the Directors may, on behalf of those Members, sell the shares representing the fractions for the best price reasonably obtainable to any person (including, subject to the provisions of the Act, the Company) and distribute the net proceeds of sale in due proportion among those Members, and the Directors may authorise some person to execute an instrument of transfer of the shares to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale.

 

11.5	The Company may by Special Resolution reduce its share capital and any capital redemption reserve in any manner and with and subject to any incident, consent, order or other matter required by law.

 

12	REDEMPTION AND PURCHASE OF OWN SHARES

 

12.1	Subject to the provisions of the Act and these Articles, the Company may:

 

(a)

issue shares on terms that they are to be redeemed or are liable to be redeemed at the option of the Company or the Member on such terms and in such manner as the Directors may, before the issue of shares, determine;

 

23

 

 

(b)

purchase its own shares (including any redeemable shares) in such manner and on such terms as the Directors may determine and agree with the relevant Member; and

 

(c)

make a payment in respect of the redemption or purchase of its own shares in any manner authorised by the Act, including out of capital.

 

12.2	The Directors may, when making a payment in respect of the redemption or purchase of shares, if so authorised by the terms of issue of the shares (or otherwise by agreement with the holder of such shares) make such payment in cash or in specie (or partly in one and partly in the other).

 

12.3

Upon the date of redemption or purchase of a share, the holder shall cease to be entitled to any rights in respect thereof (excepting always the right to receive (i) the price therefor and (ii) any dividend which had been declared in respect thereof prior to such redemption or purchase being effected) and accordingly his name shall be removed from the Register of Members with respect thereto and the share shall be cancelled.

 

13	TREASURY SHARES

 

13.1	The Directors may, prior to the purchase, redemption or surrender of any share, determine that such share shall be held as a Treasury Share.

 

13.2	The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they think proper (including, without limitation, for nil consideration).

 

14	REGISTER OF MEMBERS

 

14.1	The Company shall maintain or cause to be maintained an overseas or local Register of Members in accordance with the Act.

 

14.2

The Directors may determine that the Company shall maintain one or more branch registers of Members in accordance with the Act. The Directors may also determine which Register of Members shall constitute the principal register and which shall constitute the branch register or registers, and to vary such determination from time to time.

 

15	CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE

 

15.1

For the purpose of determining Members entitled to notice of, or to vote at, any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any dividend or other distribution, or in order to make a determination of Members for any other purpose, the Directors may provide that the Register of Members shall be closed for transfers for a stated period which shall not in any case exceed thirty (30) days. If the Register shall be so closed for the purpose of determining those Members that are entitled to receive notice of, attend or vote at a meeting of Members, the Register shall be so closed for at least ten (10) clear days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register.

 

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15.2

In lieu of, or apart from, closing the Register of Members, the Directors may fix, in advance or in arrears, a date as the record date for any such determination of Members entitled to notice of, or to vote at any meeting of the Members or any adjournment thereof, or for the purpose of determining the Members entitled to receive payment of any dividend or other distribution, or in order to make a determination of Members for any other purpose, provided that such a record date shall not exceed forty (40) clear days prior to the date where the determination will be made.

 

15.3

If the Register of Members is not so closed and no record date is fixed for the determination of Members entitled to notice of, or to vote at, a meeting of Members or Members entitled to receive payment of a dividend or other distribution, the date on which notice of the meeting is sent or posted or the date on which the resolution of the Directors resolving to pay such dividend or other distribution is passed, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Article, such determination shall apply to any adjournment thereof.

 

16	GENERAL MEETINGS

 

16.1

An annual general meeting of the Company may at the discretion of the Board be held in the year in which these Articles were adopted and shall be held in each year thereafter at such time as determined by the Board, and the Company may, but shall not (unless required by the Act) be obliged to, in each year hold any other general meeting.

 

16.2	The agenda of the annual general meeting shall be set by the Board and shall include the presentation of the Company’s annual accounts, the report of the Directors (if any) and the election of Directors.

 

16.3	Annual general meetings shall be held in such place as the Directors may determine from time to time.

 

16.4	All general meetings other than annual general meetings shall be called extraordinary general meetings and the Company shall specify the meeting as such in the notices calling it.

 

16.5

The Directors, the chief executive officer, the Chairman of the Board, or, for so long as the Founding Shareholder (together with his Affiliates) beneficially owns 50% or more of the Total Voting Power, the Members holding a majority of the Total Voting Power, may, whenever such person or persons think(s) fit, convene an extraordinary general meeting of the Company.

 

16.6

For so long as the Founding Shareholder (together with his Affiliates) beneficially owns 50% or more of all the Total Voting Power, Members who collectively hold a majority of the Total Voting Power shall be entitled to request Directors to convene an extraordinary general meeting of the Company and Directors shall on a Members’ requisition in accordance with these Articles forthwith proceed to convene an extraordinary general meeting of the Company.

 

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16.7	In the event that the Founding Shareholder (together with his Affiliates) beneficially owns less than 50% of the Total Voting Power, then no Member shall have the power to make a requisition to convene a meeting to Directors.

 

16.8	The Members’ requisition must state the objects of the meeting and must be signed by the requisitionists and deposited at the registered office, and may consist of several documents in like form each signed by one or more requisitionists.

 

16.9

If there are no Directors as at the date of the deposit of the Members’ requisition or if the Directors do not within fourteen (14) days from the date of the deposit of the Members’ requisition duly proceed to convene a general meeting to be held within a further fourteen (14) days, the requisitionists, or any of them representing more than one-half of the total voting rights of all of the requisitionists, may themselves convene a general meeting, but any meeting so convened shall be held no later than the day which falls three (3) months after the expiration of the first said fourteen (14) day period.

 

16.10

A general meeting convened as aforesaid by requisitionists shall be convened in as close to the same manner as possible as that in which general meetings are to be convened by Directors.

 

16.11

Save as set out in Articles 16.1 to 16.10, the Members have no right to propose resolutions to be considered or voted upon at annual general meetings or extraordinary general meetings of the Company.

 

17	NOTICE OF GENERAL MEETINGS

 

17.1

An annual general meeting, if and when called in accordance with Article 16, shall be called by at least 21 days’ (and not less than 15 clear business days’) notice in writing, and any other general meeting shall be called by at least 14 days’ (and not less than 10 clear business days’) notice in writing. Such notice shall be exclusive of the day on which it is served or deemed to be served and of the day for which it is given, and must specify the time, place and agenda of the meeting and particulars of the resolution(s) to be considered at that meeting and, in the case of special business, the general nature of that business. All business transacted at an extraordinary general meeting shall be deemed special business. All business shall also be deemed special business where it is transacted at an annual general meeting, with the exception of certain routine matters which shall be deemed ordinary business.

 

17.2

Such notice may be served on a Member in accordance with Article 35 or in such other manner (if any) as may be prescribed by Ordinary Resolution, to such persons as are entitled to vote or may otherwise be entitled under these Articles to receive such notices from the Company; provided that a general meeting of the Company shall, whether or not the notice specified in this Article has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed:

 

(a)

in the case of an annual general meeting, by all of the Members entitled to attend and vote thereat; and

 

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(b)

in the case of an extraordinary general meeting, by Members having a right to attend and vote at the meeting, together holding not less than 75%, in par value of the shares giving that right.

 

17.3	The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at that general meeting.

 

18	PROCEEDINGS AT GENERAL MEETINGS

 

18.1

No business shall be transacted at any meeting unless a quorum is present at the time when the meeting proceeds to business and continues to be present until the conclusion of the meeting. One or more Members holding not less than a majority in aggregate of all shares in issue entitled to vote, present in person or by proxy or, if a corporation or other non-natural person, by its duly authorised representative, shall represent a quorum.

 

18.2

If a quorum is not present within half an hour from the time appointed for the meeting to commence or if during such a meeting a quorum ceases to be present, the meeting, if convened upon a Members’ requisition, shall be dissolved and in any other case it shall stand adjourned and shall reconvene on the same day in the next week at the same time and place or to such other day, time and place as the Directors may determine, and if at the reconvened meeting a quorum is not present within half an hour from the time appointed for the meeting to commence, the Members present shall be a quorum.

 

18.3

A person may participate in a general meeting by conference telephone or other electronic means by means of which all the persons participating in the meeting can communicate with each other at the same time. Participation by a Member in a meeting in this manner is treated as presence in person at that meeting and is counted in a quorum and entitled to vote.

 

18.4

The Chairman or in his absence the Vice-Chairman (if any) shall preside as chairman of the meeting, but if neither the Chairman nor such Vice-Chairman (if any) is present within thirty (30) minutes after the time appointed for holding the meeting and willing to act, the Directors present shall elect one of their number to be chairman and, if there is only one Director present and willing to act, he shall be chairman. If no Director is willing to act as chairman, or if no Director is present within thirty (30) minutes after the time appointed for holding the meeting, then such meeting shall be adjourned for a one week period and shall be held in the following week on the same day at the same time and place. If at the adjournment of the meeting the Chairman or in his absence the Vice-Chairman (if any) or in their absence a Director is not willing to act as chairman, or if no Director is present within thirty (30) minutes after the time appointed for holding the meeting, then such meeting shall be cancelled. For the avoidance of doubt, only a director may serve as the chairman of the meeting.

 

18.5

The order of business at each such meeting shall be as determined by the chairman of the meeting. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Company, restrictions on entry to such meeting after the time prescribed for the commencement thereof, and the opening and closing of the polls. The chairman of the meeting shall announce at each such meeting the date and time of the opening and the closing of the polls for each matter upon which the Members will vote at such meeting.

 

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18.6	A Director shall, notwithstanding that he is not a Member, be entitled to attend and speak at any general meeting and at any separate meeting of the holders of any class of shares in the Company.

 

18.7

The chairman of the meeting may, with the consent of a majority of the Members present at such meeting at which a quorum is present (and shall if so directed by such Members), adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than business which might properly have been transacted at the meeting had the adjournment not taken place. When a meeting is adjourned for fourteen (14) days or more, at least seven (7) clear days’ notice shall be given in the manner herein provided, including, but not limited to, as described in Article 35, specifying the time and place of the adjourned meeting and the general nature of the business to be transacted. Otherwise it shall not be necessary to give any such notice.

 

18.8

At each meeting of the Members, all corporate actions to be taken by vote of the Members (except as otherwise required by applicable law and except as otherwise provided in these Articles) shall be authorised by Ordinary Resolution; provided, that a Director (excluding for the avoidance of doubt, any appointment(s) or replacement(s) of Founding Directors by the Founding Shareholder in accordance with Article 21.2) shall be elected by a plurality of the votes cast by the Members present in person or represented by proxy at the meeting at which such election is to take place. There shall be no cumulative voting in the election of Directors. Where a separate vote by a class or classes or series is required, save as provided in Article 4.10(a), the affirmative vote of the majority of shares of such class or classes or series present in person or represented by proxy at the meeting at which a quorum is present and voting shall be the act of such class or series (unless provided otherwise in the resolutions providing for the issuance of such class or series).

 

18.9	At any general meeting a resolution put to the vote of the meeting shall be decided on a poll.

 

18.10

A poll shall be taken in such manner as the chairman directs and he may appoint scrutineers (who need not be Members) and fix a place and time for declaring the result of the poll. The result of the poll shall be deemed to be the resolution of the meeting at which the poll was taken.

 

18.11

In the case of equality of votes, the chairman of the meeting shall be entitled to a casting vote in addition to any other vote he may have.

 

18.12

If the Company has only one Member:

 

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(a)

the sole Member may agree that any general meeting be called by shorter notice than that provided for by the Articles; and

 

(b)

all other provisions of the Articles apply with any necessary modification (unless the provision expressly provides otherwise).

 

19	VOTES OF MEMBERS

 

19.1

Subject to any special rights, restrictions or privileges as to voting for the time being attached to any class or classes of shares at any general meeting (including without limitation the enhanced voting rights attaching to Class B Ordinary Shares provided for in Article 5), on a poll every Member present in person or by proxy or, in the case of a Member being a corporation, by its duly authorized representative, shall have one vote for every share which is fully paid or credited as fully paid registered in his or her name in the Register of Members (and for the avoidance of doubt each Class B Ordinary Share shall entitle the holder to 20 votes on all matters subject to a vote at general meetings of the Company), provided that no amount paid up or credited as paid up on a share in advance of calls or instalments is treated for this purpose as paid up on the share.

 

19.2	At any general meeting, a resolution put to the vote of the meeting is to be decided by poll.

 

19.3

In the case of joint holders, the vote of the senior joint holder who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders; and seniority shall be determined by the order in which the names of the holders stand in the Register of Members.

 

19.4

A Member in respect of whom an order has been made by any court having jurisdiction (whether in the Islands or elsewhere) in matters concerning mental disorder may vote, by his receiver, curator bonis or other person authorised in that behalf appointed by that court, and any such receiver, curator bonis or other person may vote by proxy. Evidence to the satisfaction of the Directors of the authority of the person claiming to exercise the right to vote shall be received at the registered office of the Company, or at such other place as is specified in accordance with these Articles for the deposit or delivery of forms of appointment of a proxy, or in any other manner specified in these Articles for the appointment of a proxy, not less than forty-eight (48) hours before the time appointed for holding the meeting or adjourned meeting at which the right to vote is to be exercised and in default the right to vote shall not be exercisable.

 

19.5

Where the Company has actual knowledge that any Member is, under the listing rules of any Designated Stock Exchange on which the shares are listed, required to abstain from voting on any particular resolution or restricted to voting only for or only against any particular resolution, any votes cast by or on behalf of such Member in contravention of such requirement or restriction shall not be counted.

 

19.6

No Member shall, unless the Directors otherwise determine, be entitled to vote at any general meeting or at any separate meeting of the holders of any class of shares in the Company, either in person or by proxy or by a corporate representative, in respect of any share held by him unless all moneys presently payable by him in respect of that share have been paid.

 

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19.7

No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is tendered, and every vote not disallowed at the meeting shall be valid. Any objection made in due time shall be referred to the chairman of the meeting whose decision shall be final and conclusive.

 

19.8	Votes may be given either personally or by proxy. Deposit or delivery of a form of appointment of a proxy does not preclude a Member from attending and voting at the meeting or at any adjournment of it, save that only the Member or his proxy may cast a vote.

 

19.9	A Member entitled to more than one vote need not, if he votes, use all his votes or cast all votes he uses in the same way.

 

19.10

The instrument appointing a proxy shall be in writing under the hand of the appointor or of his or her attorney duly authorized in writing, or if the appointor is a corporation, either under seal or under the hand of a duly authorized officer or attorney. Every instrument of proxy, whether for a specified meeting or otherwise, shall be in such form as the Board may from time to time approve, provided that it shall not preclude the use of the two-way form. Any form issued to a Member for appointing a proxy to attend and vote at an extraordinary general meeting or at an annual general meeting at which any business is to be transacted shall be such as to enable the Member, according to his or her intentions, to instruct the proxy to vote in favour of or against (or, in default of instructions, to exercise his or her discretion in respect of) each resolution dealing with any such business.

 

19.11

Subject to the Act, the Directors may accept the appointment of a proxy received in an electronic communication at an address specified for such purpose, on such terms and subject to such conditions as they consider fit. The Directors may require the production of any evidence which they consider necessary to determine the validity of any appointment pursuant to Article 19.10.

 

19.12

Subject to Article 19.13 below, the form of appointment of a proxy and any authority under which it is executed or a copy of such authority certified notarially or in some other way approved by the Directors may:

 

(a)

in the case of an instrument in writing, be left at or sent by post to the registered office of the Company or such other place within the Islands or elsewhere as is specified in the notice convening the meeting or in any form of appointment of proxy sent out by the Company in relation to the meeting at any time before the time for holding the meeting or adjourned meeting at which the person named in the form of appointment of proxy proposes to vote;

 

(b)

in the case of an appointment of a proxy contained in an electronic communication, where an address has been specified by or on behalf of the Company for the purpose of receiving electronic communications:

 

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(i)

in the notice convening the meeting; or

 

(ii)

in any form of appointment of a proxy sent out by the Company in relation to the meeting; or

 

(iii)

in any invitation contained in an electronic communication to appoint a proxy issued by the Company in relation to the meeting;

be received at such address at any time before the time for holding the meeting or adjourned meeting at which the person named in the form of appointment of proxy proposes to vote;

 

(c)

in the case of a poll taken more than forty-eight (48) hours after it is demanded, be deposited or delivered as required by paragraphs (a) or (b) of this Article after the poll has been demanded and at any time before the time appointed for the taking of the poll; or

 

(d)

where the poll is taken immediately or within forty-eight (48) hours after it is demanded, be delivered at the meeting at which the poll was demanded to the chairman of the meeting or to the secretary or to any Director;

and a form of appointment of proxy which is not deposited or delivered in accordance with this Article and Article 19.13 is invalid.

 

19.13

Notwithstanding Article 19.12 above, the Directors may by way of note to or in any document accompanying the notice of a general meeting (or adjourned meeting) fix the latest time by which the appointment of a proxy must be communicated to or received by the Company (being not more than 48 hours before the relevant meeting).

 

19.14

A vote or poll demanded by proxy or by the duly authorised representative of a corporation shall be valid notwithstanding the previous determination of the authority of the person voting or demanding a poll unless notice of the determination was received by the Company at the registered office of the Company or, in the case of a proxy, any other place specified for delivery or receipt of the form of appointment of proxy or, where the appointment of a proxy was contained in an electronic communication, at the address at which the form of appointment was received, before the commencement of the meeting or adjourned meeting at which the vote is given or the poll demanded or (in the case of a poll taken otherwise than on the same day as the meeting or adjourned meeting) the time appointed for taking the poll.

 

19.15

Any corporation or other non-natural person which is a Member of the Company may in accordance with its constitutional documents, or, in the absence of such provision, by resolution of its directors or other governing body, authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as the corporation could exercise if it were an individual Member.

 

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19.16

Should a Clearing House or its nominee(s) or depositary or its nominee(s) be a Member, such person or persons may be authorized as it thinks fit to act as its representative(s) at any general meeting or at any meeting of any class of Members provided that, if more than one person is so authorized, the authorisation shall specify the number and class of shares in respect of which each such person is so authorized. A person authorized in accordance with this Article shall be deemed to have been duly authorized without further evidence of the facts and be entitled to exercise the same rights and powers on behalf of the Clearing House or its nominee(s) or depositary or its nominee(s) as if such person were an individual Member.

 

20	NUMBER OF DIRECTORS AND CHAIRMAN

 

20.1	Subject to Article 21.6, the Board will initially consist of not more than nine (9) Directors, which number of Directors may be modified from time to time by a majority of the Directors then in office.

 

20.2

The Board shall have a Chairman to act as the chairman at Board meetings. For so long as the Founding Shareholder either (i) serves as the Chief Executive Officer of the Company or (ii) together with his Affiliates, beneficially owns at least 50% of the Total Voting Power, the Chairman shall be the Founding Shareholder (or such other Director as the Founding Shareholder may appoint from time to time). Where the Founding Shareholder either does not have such voting power (together with his Affiliates) or does not serve as Chief Executive Officer of the Company, the Board shall have a Chairman elected and appointed by a majority of the Directors then in office. The Founding Shareholder, as long as the Founding Shareholder (together with his Affiliates) beneficially owns at least 50% of the Total Voting Power, may also elect a Vice-Chairman to act in the absence of the Chairman at Board meetings. Where the Founding Shareholder (together with his Affiliates) does not have such voting power, the Board may also have a Vice-Chairman elected and appointed by a majority of the Directors then in office.

 

20.3

The period for which the Chairman and/or the Vice-Chairman shall hold office shall be determined by the Founding Shareholder, so long as the Founding Shareholder (together with his Affiliates) beneficially owns at least 50% of the Total Voting Power. Where the Founding Shareholder (together with his Affiliates) does not have such voting power, the Board shall determine the period for which the Chairman and/or the Vice-Chairman shall hold office.

 

20.4

The Chairman shall preside as chairman at every meeting of the Board at which he is present. Where the Chairman is not present at a meeting of the Board, the Vice-Chairman (if any) shall act as chairman, or in his absence, the attending Directors may choose one Director to be the chairman of the meeting.

 

21	APPOINTMENT, DISQUALIFICATION AND REMOVAL OF DIRECTORS

 

21.1	Save as provided in Article 21.5 and subject to Article 21.2, Directors shall be elected by an Ordinary Resolution of Members at an annual general meeting.

 

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21.2	The Founding Shareholder shall be entitled to nominate a number of designees to be appointed to the Board at a general meeting of the Company (the Founding Directors) by notice in writing to the Company as follows:

 

(a)

up to five Founding Directors (or if the size of the Board is increased, a majority (i.e., more than 50%) of the total number of Directors, rounded upward to the nearest whole number), so long as the Founding Shareholder and his Affiliates continue to beneficially own at least 40% of the Total Voting Power,

 

(b)

up to three Founding Directors (or if the size of the Board is increased, one-third of the total number of Directors, rounded upward to the nearest whole number), so long as the Founding Shareholder and his Affiliates continue to beneficially own at least 25% of the Total Voting Power, and

 

(c)

up to one Founding Director (or if the size of the Board is increased, 10% of the total number of Directors, rounded upward to the nearest whole number), so long as the Founding Shareholder and his Affiliates continue to beneficially own at least 5% of the Total Voting Power.

 

(d)

In the event that the Founding Shareholder has nominated less than the total number of Founding Director(s) that the Founding Shareholder is entitled to nominate pursuant to these Articles, the Founding Shareholder shall have the right, at any time, to nominate such additional Founding Director(s) to which he is entitled, in which case the Board shall call an extraordinary general meeting for the purpose of approving resolutions to (A) if applicable, increase the size of the Board as required to enable the appointment of such additional designees (or otherwise increase the size of the Board pursuant to Article 20.1) and (B) appoint such additional Founding Director(s) nominated by the Founding Shareholder to such newly created directorships.

 

(e)

The Founding Shareholder may remove any Founding Director(s) by notice in writing to the Company, whether or not Cause (as defined below) exists, and, upon such removal, may designate a replacement Founding Director, and such replacement Founding Director shall be appointed as a Director by the Board pursuant to Article 21.5.

 

21.3

Until the Classifying Date (as defined below), each Director shall serve for a term ending on the date of the annual general meeting of the Members next following the annual general meeting of the Members at which such Director was elected. From and after the date on which the Founding Shareholder (together with his Affiliates) no longer beneficially owns more than 50% of the Total Voting Power (the Classifying Date), the Company shall cause the Directors to be, and the Directors shall be, divided into three classes designated Class I, Class II and Class III. Each class of Directors shall consist, as nearly as possible, of one third of the total number of Directors constituting the entire Board. The Board shall assign members of the Board in office at the Classifying Date to such classes. Each Director shall serve for a term ending on the date of the third annual general meeting of the Members next following the annual general meeting of the Members at which such Director was elected, provided that Directors initially designated as Class I Directors shall serve for a term ending on the date of the first annual general meeting of the Members following the Classifying Date, Directors initially designated as Class II Directors shall serve for a term ending on the second annual general meeting of the Members following the Classifying Date, and Directors initially designated as Class III Directors shall serve for a term ending on the date of the third annual general meeting of the Members following the Classifying Date. The Founding Directors shall be allocated to the longest duration classes unless otherwise determined by the Board.

 

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21.4

Before the expiration of a Director’s term of office, a Director may only be removed for Cause by Ordinary Resolution in accordance with Article 21.9 below, subject to Article 21.2(e) above in respect of Founding Directors. Cause shall mean, in relation to a Director, the occurrence of any of the following events:

 

(a)

the Director’s conviction by final judgment issued by a competent court or declaration of guilt before a competent court with respect to any offense considered an intentional crime or punishable by detention, or a torpid act, intentional fraud, improbity, theft or anti-ethical business conduct in the jurisdiction involved;

 

(b)

fraud, theft, financial dishonesty, misappropriation or embezzlement of funds by the Director, whether before or after the date of his election, that adversely affects the Company;

 

(c)

breach or wilful misconduct by the Director in the performance of his or her obligations, including, among others, (i) uninterrupted or repeated omission or refusal to perform the obligations and duties established in the Articles of Association or in the applicable laws, and (ii) incapacity, by the Director, to comply with the obligations and duties as a result of an alcohol or drug addiction; or

 

(d)

wilful misconduct by the Director that causes material damages to or that adversely affects the financial situation or commercial reputation of the Company.

 

21.5

Subject to Article 21.2, any vacancies on the Board arising other than upon the removal of a Director in accordance with Article 21.9 may be filled by the remaining Director(s) (notwithstanding that the remaining Director(s) may constitute fewer than is required for a quorum pursuant to Article 27.1), provided that in the case of a vacancy arising as a result of a removal pursuant to Article 21.2(e) above, the Board shall appoint any person designated as a replacement Founding Director. Any such appointment shall be as an interim Director to fill such vacancy until (x) if before the Classifying Date, the next annual general meeting of Members or (y) if after the Classifying Date, the annual general meeting at which such interim Director’s predecessor would have been up for election.

 

21.6	Additional Board members may be appointed to the Board by Ordinary Resolution, subject to the provisions of Article 21.2.

 

21.7	There is no age limit for Directors of the Company. Directors are eligible for re-election.

 

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21.8	No shareholding qualification shall be required for a Director. A Director who is not a Member shall nevertheless be entitled to receive notice of and to attend and speak at general meetings of the Company.

 

21.9

Directors (including, for the avoidance of doubt, Founding Directors) may be removed for Cause by Ordinary Resolution. The notice of general meeting must contain a statement of the intention to remove the Director and must be served on the Director not less than ten (10) calendar days before the meeting. The director is entitled to attend the meeting and be heard on the motion for his removal. For the avoidance of doubt, where a Founding Director is removed for Cause by Ordinary Resolution, the Founding Shareholder shall be entitled to appoint a new Founding Director (not being the Director so removed for Cause) in accordance with and subject to Article 21.2.

 

21.10

The office of a Director shall be vacated automatically if:

 

(a)

he or she becomes prohibited by law from being a Director;

 

(b)

he or she becomes bankrupt or makes any arrangement or composition with his creditors generally;

 

(c)

he or she dies or is, in the opinion of all his co-Directors, incapable by reason of mental disorder of discharging his or her duties as Director;

 

(d)

he or she resigns his or her office by notice to the Company; or

 

(e)

he or she has for more than six (6) months been absent without permission of the Directors from meetings of Directors held during that period and the remaining Directors resolve that his or her office be vacated.

 

22	POWERS OF DIRECTORS

 

22.1

Subject to the provisions of the Act, to the Memorandum and the Articles, to any directions given by Ordinary Resolution or Special Resolution and to the listing rules of any Designated Stock Exchange, the business and affairs of the Company will be managed by, or under the direction or supervision of, the Board. The Directors may exercise all the powers of the Company. No alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. The powers given by this Article shall not be limited by any special power given to the Directors by the Articles and a meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors.

 

22.2

Subject to the Memorandum and the Articles, the Board may exercise all the powers of the Company to raise capital or borrow money and to mortgage or charge all or any part of the undertaking, property and assets (present and future) and uncalled capital of the Company and, subject to the Act, to issue debentures, bonds and other securities, whether outright or as collateral security for any debt, liability or obligation of the Company or of any third party.

 

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22.3

Notwithstanding anything to the contrary in the Memorandum or the Articles, for so long as the Founding Shareholder and his Affiliates continue to beneficially own at least 10% of the Total Voting Power, the Company shall not take any action, or permit its subsidiaries to take any action (including any action by the Board or any committee thereof), with respect to any of the following matters without the prior written approval of a majority of the Class B Ordinary Shares in issue:

 

(a)

entering into any transaction or series of transactions that would result in a Change of Control;

 

(b)

any merger, consolidation, reorganization (including conversion) or any other Business Combination involving the Company or any of its subsidiaries;

 

(c)

any liquidation, dissolution, receivership, commencement of bankruptcy, insolvency or similar proceedings with respect to the Company or any of its subsidiaries;

 

(d)

authorizing or issuing any shares or any security or obligation that, by its terms, directly or indirectly, is convertible into or exchangeable or exercisable for shares (collectively, “Convertible Securities”) and any option, warrant or other right to subscribe for, purchase or acquire Convertible Securities, other than (i) pursuant to any share plan, employee share purchase plan or equity incentive plan approved by the Board, (ii) in connection with the acquisition by the Company or any of its subsidiaries of the securities, business, technology, property or other assets of another Person or pursuant to an employee benefit plan assumed by the Company or any of its subsidiaries in connection with such acquisition, or the Company’s joint ventures, equipment leasing arrangements, debt financings or other strategic transactions; provided that the aggregate number of shares (or shares underlying Convertible Securities) issued or issuable over any 12-month period under this clause (ii) shall not exceed 10% of the total number of Ordinary Shares in issue on the first day of such 12-month period, (iii) in connection with the exchange or conversion of Class B Ordinary Shares into Class A Ordinary Shares, as contemplated hereby or (iv) in compliance with these Articles;

 

(e)

the acquisition, sale, conveyance, transfer or other disposition of any asset or business of the Company or any of its subsidiaries, in one transaction or a series of related transactions, the aggregate consideration or fair value of which is greater than or equal to 20% of the Company’s net equity value on the date of such transaction, as determined by the Board in good faith;

 

(f)

redeeming, repurchasing or otherwise acquiring any shares or Convertible Securities of the Company or any of its subsidiaries, other than redemptions, repurchases or acquisitions of from employees, officers, directors, consultants or other Persons performing services for the Company or any of its subsidiaries (or in connection with the cessation of such services) pursuant to agreements under which the Company or any of its subsidiaries has the option to repurchase such shares or Convertible Securities upon the occurrence of certain events, such as the termination of employment or service;

 

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(g)

paying or declaring any dividend or distribution on any shares of the Company or any of its subsidiaries except to the extent such payments are to the Company or one of its directly or indirectly wholly owned subsidiaries;

 

(h)

incurring, creating or assuming any indebtedness of the Company or any of its subsidiaries in an amount greater than or equal to the Company’s net equity value in the aggregate on a consolidated basis;

 

(i)

any material change in the strategic direction or scope of the Company’s business, as determined by the Board in good faith;

 

(j)

any transaction or agreement (other than relating to the issuance or sale of shares or Convertible Securities) between the Company and/or any of its subsidiaries, on the one hand, and any officer, Director or Affiliate of the Company, on the other (excluding, in all cases, of the Founding Shareholder);

 

(k)

any determination or approval of the annual compensation of an officer and/or Director of the Company (excluding, in all cases, of the Founding Shareholder); or

 

(l)

the adoption of a shareholders’ rights plan.

 

23	DELEGATION OF DIRECTORS’ POWERS

 

23.1

Subject to these Articles, the Directors may from time to time appoint any Person, whether or not a director of the Company, to hold such office in the Company as the Directors may think necessary for the administration of the Company, including without prejudice to the foregoing generality, the offices of chief executive officer and chief financial officer, and one or more vice presidents, managers or controllers, and for such term and at such remuneration (whether by way of salary or commission or participation in profits or partly in one way and partly in another) and with such powers and duties as the Directors may think fit. The Directors may by resolution remove from that position any officer appointed pursuant to this Article, however:

 

(a)

The chief executive officer shall, subject to the other terms of these Articles: (i) have general executive charge, management and control of the properties, business and operations of the Company with all such powers as may be reasonably incident to such responsibilities; (ii) agree upon and execute all contracts in the name of the Company and may sign all certificates for shares of the Company; and (iii) have such other powers and duties as may be assigned to him or her from time to time by the Board.

 

(b)

The chief financial officer shall have responsibility for the custody and control of all the funds and securities of the Company, and he or she shall have such other powers and duties as may be prescribed from time to time by the Board. He or she shall perform all acts incident to the position of chief financial officer, subject to the control of the chief executive officer and the Board.

 

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23.2

Without limiting the generality of Article 23.1, the Directors may appoint one or more of their body to the office of managing Director or to any other executive office under the Company, and the Company may enter into an agreement or arrangement with any Director for his or her employment, subject to applicable law and any listing rules of the SEC, the CVM or any Designated Stock Exchange, or for the provision by him of any services outside the scope of the ordinary duties of a Director. Any such appointment, agreement or arrangement may be made upon such terms as the Directors determine and they may remunerate any such Director for his services as they think fit. Any appointment of a Director to an executive office shall terminate automatically if he ceases to be a Director but without prejudice to any claim to damages for breach of the contract of service between the Director and the Company.

 

23.3	The Directors may, by power of attorney or otherwise, appoint any person to be the agent of the Company for such purposes and on such conditions as they determine, including authority for the agent to delegate all or any of his powers.

 

23.4

Subject to applicable law and the listing rules of any Designated Stock Exchange, the Directors may delegate any of their powers to any committee, consisting of one or more Directors or officers. Subject to the requirements of the SEC, the CVM and any Designated Stock Exchange, the composition of each committee shall be allocated in accordance with the rights set forth in Article 21.2. The Directors may also delegate to any officer or committee of officers such of their powers as they consider desirable to be exercised by him or them. Any such delegation may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of its own powers and may be revoked or altered. Subject to any such conditions, the proceedings of a committee with two or more members shall be governed by the provisions of the Articles regulating the proceedings of Directors so far as they are capable of applying. Where a provision of the Articles refers to the exercise of a power, authority or discretion by the Directors and that power, authority or discretion has been delegated by the Directors to a committee, the provision shall be construed as permitting the exercise of the power, authority or discretion by the committee.

 

24	REMUNERATION AND EXPENSES OF DIRECTORS

 

24.1

The Directors shall be entitled to receive, as ordinary remuneration for their services, such sums as shall from time to time be determined by the Board or in general meeting by the Members, as the case may be, such sum (unless otherwise directed by the resolution by which it is determined) to be divided among the Directors in such proportions and in such manner as they may agree or, failing agreement, either equally or, in the case of any Director holding office for only a portion of the period in respect of which the remuneration is payable, pro rata. The Directors shall also be entitled to be repaid all expenses reasonably incurred by them in attending any Board meetings, committee meetings or general meetings or otherwise in connection with the discharge of their duties as Directors. Such remuneration shall be in addition to any other remuneration to which a Director who holds any salaried employment or office with the Company may be entitled by reason of such employment or office.

 

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24.2

Any Director who, at the request of the Company, performs services which in the opinion of the Board go beyond the ordinary duties of a Director may be paid such special or extra remuneration as the Board may determine, in addition to or in substitution for any ordinary remuneration as a Director. An executive Director appointed to be a managing Director, joint managing Director, deputy managing Director or other officer shall receive such remuneration and such other benefits and allowances as the board of directors may from time to time decide. Such remuneration shall be in addition to his or her ordinary remuneration as a Director.

 

25	DIRECTORS’ GRATUITIES AND PENSIONS

 

25.1

The Board may establish, either on its own or jointly in concurrence or agreement with subsidiaries or companies with which the Company is associated in business, or may make contributions out of Company monies to, any schemes or funds for providing pensions, sickness or compassionate allowances, life assurance or other benefits for employees (which expression as used in this and the following paragraph shall include any Director or former Director who may hold or have held any executive office or any office of profit with the Company or any of its subsidiaries) and former employees of the Company and their dependents or any class or classes of such persons.

 

25.2

The Board may also pay, enter into agreements to pay or make grants of revocable or irrevocable, whether or not subject to any terms or conditions, pensions or other benefits to employees and former employees and their dependents, or to any of such persons, including pensions or benefits additional to those, if any, to which such employees or former employees or their dependents are or may become entitled under any such scheme or fund as mentioned above. Such pension or benefit may, if deemed desirable by the Board, be granted to an employee either before and in anticipation of, or upon or at any time after, his or her actual retirement.

 

26	DIRECTORS’ INTERESTS

 

26.1

With the exception of the office of auditor, a Director may hold any other office or place of profit with the Company in conjunction with his or her office of Director for such period and upon such terms as the Directors may determine in accordance with these Articles, and may be paid such extra remuneration for that other office or place of profit, in whatever form, in addition to any remuneration provided for by or pursuant to these Articles. A Director may be or become a director, officer or member of any other company in which Company may be interested, and shall not be liable to account to the Company or the Members for any remuneration or other benefits received by him as a director, officer or member of such other company.

 

26.2

No Director or intended Director shall be disqualified by his or her office from contracting with the Company, nor shall any such contract or any other contract or arrangement in which any Director is in any way interested be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason only of such Director holding that office or the fiduciary relationship established by it. A Director who is, in any way, materially interested in a contract or arrangement or proposed contract or arrangement with the Company shall declare the nature of his or her interest at the earliest meeting of the Board at which he or she may practically do so.

 

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26.3

A Director shall not vote or be counted in the quorum on any resolution of the Board in respect of any contract or arrangement or proposal in which he or she or any of his or her close associate(s) has/have a material interest, and if such Director shall do so, his or her vote shall not be counted nor shall such Director be counted in the quorum for that resolution, but this prohibition shall not apply to any of the following matters:

 

(a)

the giving of any security or indemnity to the Director or his or her close associate(s) in respect of money lent or obligations incurred or undertaken by him or any of them at the Company’s request and of or for the Company’s benefit or any of the Company’s subsidiaries;

 

(b)

the giving of any security or indemnity to a third party in respect of a debt or obligation of the Company’s or any of the Company’s subsidiaries for which the Director or his close associate(s) has/have himself/themselves assumed responsibility in whole or in part whether alone or jointly under a guarantee or indemnity or by the giving of security;

 

(c)

any proposal concerning an offer of shares, debentures or other securities of or by the Company or any other company which the Company may promote or be interested in for subscription or purchase, where the Director or his or her close associate(s) is/are or is/are to be interested as a participant in the underwriting or sub-underwriting of the offer;

 

(d)

any proposal or arrangement concerning the benefit of the Company’s or any of its subsidiaries’ employees, including the adoption, modification or operation of either: (i) any employees’ share scheme or any share incentive or share option scheme under which the Director or his or her close associate(s) may benefit; or (ii) any of a pension fund or retirement, death or disability benefits scheme which relates to Directors, their close associates and employees of the Company or any of the Company’s subsidiaries and does not provide in respect of any Director or his or her close associate(s) any privilege or advantage not generally accorded to the class of persons to which such scheme or fund relates; and

 

(e)

any contract or arrangement in which the Director or his or her close associate(s) is/are interested in the same manner as other holders of shares, debentures or other securities of the Company by virtue only of his or her/their interest in those shares, debentures or other securities.

 

26.4

Subject to the Act and Articles 26.1, 26.2 and 26.3 above and the listing rules of any Designated Stock Exchange, if a Director has disclosed to the other Directors the nature and extent of any direct or indirect interest that the Director has in any transaction or arrangement with the Company, a Director, notwithstanding his office:

 

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(a)

may be a party to or otherwise interested in any transaction or arrangement with the Company or in which the Company is otherwise interested;

 

(b)

may be a Director or other officer of, or employed by, or a party to any transaction or arrangement with, or otherwise interested in, any body corporate promoted by the Company or in which the Company is otherwise interested; and

 

(c)

shall not by reason of his office be accountable to the Company for any benefit which he derives from any such office or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit.

 

26.5	For the purposes of Article 26.4:

 

(a)

a general notice given to the Directors to the effect that (1) a Director is a member or officer of a specified company or firm and is to be regarded as having an interest in any transaction or arrangement that may after the date of the notice be made with that company or firm; or (2) a Director is to be regarded as interested in any transaction or arrangement that may after the date of the notice be made with a specified person who is connected with him or her shall be deemed to be a sufficient disclosure that the Director has an interest of the nature and extent so specified; and

 

(b)

an interest of which a Director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his.

 

26.6

A Director must disclose any direct or indirect interest in any transaction or arrangement with the Company, and following a declaration being made pursuant to the Articles, subject to Articles 26.1, 26.2 and 26.3 above and any separate requirement for approval under applicable law or the listing rules of any Designated Stock Exchange, and unless disqualified by the chairman of the relevant meeting, a Director may vote in respect of any such transaction or arrangement in which such Director is interested and may be counted in the quorum at such meeting.

 

27	PROCEEDINGS OF DIRECTORS

 

27.1	The quorum for the transaction of the business of the Directors shall be a simple majority of the Directors then in office (subject to there being a minimum of two (2) Directors present, one of whom shall be a Founding Director, to the extent applicable).

 

27.2

Subject to the provisions of the Articles, the Directors may regulate their proceedings as they determine is appropriate. The affirmative vote of a majority of Directors present at a meeting at which a quorum is present shall constitute an act of the Board. Questions arising at any meeting shall be decided by a majority of Directors present at a meeting at which a quorum is present. In the case of an equality of votes, the Chairman shall have a second or casting vote. In the absence of the Chairman, the Vice-Chairman shall have a second or casting vote. In the absence of both Chairman and Vice-Chairman, no director shall have a second or casting vote and in the event of a tie a new meeting shall be convened.

 

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27.3	Meetings of the Directors shall be held at least once every calendar quarter and shall take place at such place as the Directors may determine from time to time.

 

27.4

A person may participate in a meeting of the Directors or any committee of Directors by conference telephone or other electronic means by means of which all the persons participating in the meeting can communicate with each other at the same time. Participation by a person in a meeting in this manner is treated as presence in person at that meeting and is counted in a quorum and entitled to vote.

 

27.5

A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of the Directors shall be as valid and effective as if it had been passed at a meeting of the Director or committee of Directors, as the case may be, duly convened and held. Unless otherwise provided by its terms, such a resolution shall be effective from the date and time of the last signature.

 

27.6

The Chairman or in his absence the Vice-Chairman (if any) or in their absence a Director may, and another officer of the Company on the direction of a Director shall, call a meeting of the Directors by at least five (5) clear days’ notice in writing to every Director, which notice shall set forth the general nature of the business to be considered, unless notice is waived by all the Directors either at, before or after the meeting is held. To any such notice of a meeting of the Directors all the provisions of the Articles relating to the giving of notices by the Company to the Members shall apply mutatis mutandis.

 

27.7

Notwithstanding Article 27.6, if all Directors so agree to the meeting, the Chairman or in his absence the Vice-Chairman (if any) or in their absence any Director may, or other officer of the Company on the direction of a Director may, call a meeting of the Directors on shorter notice than is provided for in Article 27.6 by notice in writing to every Director, which notice shall set forth the general nature of the business to be considered.

 

27.8

The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to the Articles (if any) as the necessary quorum of Directors, the continuing Directors or Director may act for the purpose of increasing the number of Directors to be equal to such fixed number (if any), or of summoning a general meeting of the Company, but for no other purpose.

 

27.9

All acts done by any meeting of the Directors or of a committee of the Directors shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director, or that they or any of them were disqualified, or had vacated their office or were not entitled to vote, be as valid as if every such person had been duly appointed or not disqualified to be a Director or had not vacated their office or had been entitled to vote, as the case may be.

 

27.10

A Director who is present at a meeting of the Directors at which action on any Company matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent from such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by electronic mail to the Company immediately after the conclusion of the meeting and such notice is received by the Company within twenty four hours. Such right to dissent shall not apply to a Director who voted in favour of such action.

 

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28	SECRETARY AND OTHER OFFICERS

 

28.1

The Directors may by resolution appoint a Secretary and may by resolution also appoint such other officers as may from time to time be required upon such terms as to the duration of office, remuneration and otherwise as they may think fit. Such Secretary or other officers need not be Directors and in the case of the other officers may be ascribed such titles as the Directors may determine. The Directors may by resolution remove from that position any Secretary or other officer appointed pursuant to this Article.

 

29

MINUTES

 

29.1	The Directors shall cause minutes to be made in books kept for the purposes of recording:

 

(a)

all appointments of officers made by the Directors; and

 

(b)

all resolutions and proceedings of meetings of the Company, of the holders of any class of shares in the Company and of the Board and of committees of Board, including the names of the Directors present at each such meeting.

 

30

SEAL

 

30.1

The Company may, if the Directors so determine, have a Seal. The Seal shall only be used by the authority of the Directors or of a committee of the Board authorised by the Directors. The Directors may determine who shall sign any instrument to which the Seal is affixed, and unless otherwise so determined every such instrument shall be signed by a Director or by such other person as the Directors may authorise.

 

30.2	The Company may have for use in any place or places outside the Islands a duplicate Seal or Seals, each of which shall be a reproduction of the Seal of the Company and, if the Directors so determine, shall have added on its face the name of every place where it is to be used.

 

30.3

The Directors may by resolution determine (i) that any signature required by this Article need not be manual but may be affixed by some other method or system of reproduction or mechanical or electronic signature and (ii) that any document may bear a printed reproduction of the Seal in lieu of affixing the Seal thereto.

 

30.4

No document or deed otherwise duly executed and delivered by or on behalf of the Company shall be regarded as invalid merely because at the date of the delivery of the deed or document, the Director, Secretary or other officer or person who shall have executed the same or affixed the Seal thereto, as the case may be, for and on behalf of the Company shall have ceased to hold such office and authority on behalf of the Company.

 

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31

DIVIDENDS

 

31.1

Subject to any rights and restrictions for the time being attached to any shares, the Directors may from time to time declare dividends (including interim dividends) and other distributions on shares in issue and authorize payment of the same out of the funds of the Company lawfully available therefor.

 

31.2	Subject to any rights and restrictions for the time being attached to any shares, the Company by Ordinary Resolution may declare dividends, but no dividend shall exceed the amount recommended by the Directors.

 

31.3

Subject to the provisions of the Act, the Directors may declare dividends in accordance with the respective rights of the Members and authorise payment of the same out of the funds of the Company lawfully available therefor. If at any time the share capital is divided into different classes of shares, the Directors may pay dividends on shares which confer deferred or non-preferred rights with regard to dividends as well as on shares which confer preferential rights with regard to dividends, but no dividend shall be paid on shares carrying deferred or non-preferred rights if, at the time of payment, any preferential dividend is in arrears. The Directors may also pay at intervals settled by them any dividend payable at a fixed rate if it appears that there are sufficient funds of the Company lawfully available for distribution to justify the payment. Provided the Directors act in good faith they shall not incur any liability to the holders of shares conferring preferred rights for any loss they may suffer by the lawful payment of a dividend on any shares having deferred or non-preferred rights.

 

31.4

The Directors may, before recommending or declaring any dividend, set aside out of the funds legally available for distribution such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for meeting contingencies, or for equalising dividends or for any other purpose to which those funds may be properly applied and pending such application may, at the like discretion, either be employed in the business of the Company or be invested in such investments (other than shares in the capital of the Company) as the Directors may from time to time think fit.

 

31.5

Except as otherwise provided by the rights attached to shares and subject to Article 15, all dividends shall be paid in proportion to the number of shares a Member holds as of the date the dividend is declared; save that (a) if any share is issued on terms providing that it shall rank for dividend as from a particular date, that share shall rank for dividend accordingly; and (b) where the Company has shares in issue which are not fully paid up (as to par value) the Company may pay dividends in proportion to the amount paid up on each share.

 

31.6	The Directors may deduct from a dividend or other amounts payable to a person in respect of a share any amounts due from him to the Company on account of a call or otherwise in relation to a share.

 

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31.7

Any Ordinary Resolution or Directors’ resolution declaring a dividend may direct that it shall be satisfied wholly or partly by the distribution of assets and, where any difficulty arises in regard to such distribution, the Directors may settle the same and in particular may issue fractional certificates and fix the value for distribution of any assets and may determine that cash shall be paid to any Member upon the footing of the value so fixed in order to adjust the rights of Members and may vest any assets in trustees.

 

31.8

Any dividend or other moneys payable on or in respect of a share may be paid by cheque sent by post to the registered address of the person entitled or, if two or more persons are the holders of the share or are jointly entitled to it by reason of the death or bankruptcy of the holder, to the registered address of that one of those persons who is first named in the Register of Members or to such person and to such address as the person or persons entitled may in writing direct. Subject to any applicable law or regulations, every cheque shall be made payable to the order of the person or persons entitled or to such other person as the person or persons entitled may in writing direct and payment of the cheque shall be a good discharge to the Company. Any joint holder or other person jointly entitled to a share as aforesaid may give receipts for any dividend or other moneys payable in respect of the share.

 

31.9	No dividend or other moneys payable in respect of a share shall bear interest against the Company unless otherwise provided by the rights attached to the share.

 

31.10

Any dividend which has remained unclaimed for six years from the date when it became due for payment shall, if the Directors so resolve, be forfeited and cease to remain owing by the Company.

 

32	FINANCIAL YEAR, ACCOUNTING RECORDS AND AUDIT

 

32.1	Unless the Directors otherwise prescribe, the financial year of the Company shall end on 31 December in each year and shall begin on 1 January each year.

 

32.2

The Board shall cause proper books of account to be kept of the sums of money received and expended by the Company, and of the Company’s assets and liabilities and of all other matters required by the Act (which include all sales and purchases of goods by the company) necessary to give a true and fair view of the state of the Company’s affairs and to show and explain the Company’s transactions.

 

32.3

The books of account relating to the Company’s affairs shall be kept in such manner as may be determined from time to time by the Directors. The books of account shall be kept at the registered office or at such other place or places as the Directors think fit, and shall always be open to the inspection of the Directors.

 

32.4

No Member shall be entitled to require discovery of or any information with respect to any detail of the Company’s trading or any matter which is or may be in the nature of a trade secret or secret process which may relate to the conduct of the business of the Company and which in the opinion of the Directors it will be inexpedient in the interests of the Members of the Company to communicate to the public.

 

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32.5

The Directors may from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books and corporate records of the Company or any of them shall be open to the inspection of Members not being Directors, and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by applicable law, the listing rules of any Designated Stock Exchange or authorised by the Directors.

 

32.6

Subject to Articles 32.5 and 32.7 a printed copy of the Directors’ report, if any, accompanied by the consolidated financial statements including every document required by the Act to be annexed thereto, made up to the end of the applicable financial year, shall be sent to the Members at least ten (10) days before the date of the general meeting and laid before the Company at the annual general meeting held in accordance with Article 16.2, provided that this Article 32.6 shall not require a copy of those documents to be sent to any person whose address the Company is not aware of or to more than one of the joint holders of any shares.

 

32.7

The requirement to send to a person referred to in Article 32.6 the documents referred to in that Article shall be deemed satisfied where, in accordance with all applicable laws, rules and regulations, including, without limitation, the rules of any Designated Stock Exchange, the Company publishes copies of the documents referred to in Article 32.6 on the Company’s Website, transmits it to SEC’s website or in any other permitted manner (including by sending any other form of electronic communication), and that person has agreed or is deemed by the Company to have agreed to treat the publication or receipt of such documents in such manner as discharging the Company’s obligation to send to him a copy of such documents.

 

32.8

The Directors may from time to time determine that Auditors shall be appointed and that the accounts relating to the Company’s affairs shall be audited in such manner as the Directors shall determine, provided, that nothing contained in this Article shall require Auditors to be appointed or the accounts relating to the Company’s affairs to be audited. The appointment of and provisions relating to Auditors shall be in accordance with applicable law and the relevant code, rules and regulations applicable to the listing of the Class A Ordinary Shares on a Designated Stock Exchange.

 

33	CAPITALISATION OF PROFITS

 

33.1	The Directors may:

 

(a)

subject to the remainder of this Article, resolve to capitalize any undivided profits of the Company not required for paying any preferential dividend (whether or not they are available for distribution) or any sum standing to the credit of the Company’s share premium account or capital redemption reserve;

 

(b)

appropriate the sum resolved to be capitalised to the Members who would have been entitled to it if it were distributed by way of dividend and in the same proportions and apply such sum on their behalf either in or towards paying up the amounts, if any, for the time being unpaid on any shares held by them respectively, or in paying up in full unissued shares or debentures of the Company of a nominal amount equal to such sum, and allot the shares or debentures credited as fully paid to those Members, or as they may direct, in those proportions, or partly in one way and partly in the other, provided that on any such capitalization holders of Class A Ordinary Shares shall receive Class A Ordinary Shares (or rights to acquire Class A Ordinary Shares, as the case may be) and holders of Class B Ordinary Shares shall receive Class B Ordinary Shares (or rights to acquire Class B Ordinary Shares, as the case may be);

 

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(c)

resolve that any shares so allotted to any Member in respect of a holding by him of any partly-paid shares rank for dividend, so long as such shares remain partly paid, only to the extent that such partly paid shares rank for dividend;

 

(d)

make such provision by the issue of fractional certificates or by payment in cash or otherwise as they determine in the case of shares or debentures becoming distributable under this Article in fractions; and

 

(e)

authorise any person to enter on behalf of all the Members concerned into an agreement with the Company providing for the allotment to them respectively, credited as fully paid, of any shares or debentures to which they may be entitled upon such capitalization, any agreement made under such authority being binding on all such Members.

 

34	SHARE PREMIUM ACCOUNT

 

34.1	The Directors shall in accordance with Section 34 of the Act establish a share premium account and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any share or capital contributed as described in Article 4.11.

 

34.2	There shall be debited to any share premium account:

 

(a)

on the redemption or purchase of a share the difference between the nominal value of such share and the redemption or purchase price provided always that at the discretion of the Directors such sum may be paid out of the profits of the Company or, if permitted by Section 37 of the Act, out of capital; and

 

(b)

any other amounts paid out of any share premium account as permitted by Section 34 of the Act.

 

35

NOTICES

 

35.1

Except where otherwise provided in these Articles and subject to the rules of any Designated Stock Exchange, any notice or document (including a share certificate) to be given or issued under these Articles shall be in writing, and may be served on any Member personally, by post to such Member’s registered address or (in the case of a notice) by advertisement in the newspapers. The Company will give notice of each general meeting of the Members by publication on the Company’s website and in any other manner that the Company may be required to follow in order to comply with Cayman Islands law, the listing rules of any Designated Stock Exchange and SEC and CVM requirements.

 

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35.2	Subject to the Act and the listing rules of any Designated Stock Exchange, a notice or document may also be served or delivered by the Company to any Member by electronic means.

 

35.3	In the case of joint holders of a Share, all notices shall be given to that one of the joint holders whose name stands first in the Register of Members in respect of the joint holding, and notice so given shall be sufficient notice to all the joint holders.

 

35.4	Notices posted to addresses outside the Cayman Islands shall be forwarded by prepaid airmail or courier.

 

35.5	Any notice or other document, if served by:

 

(a)

post, shall be deemed to have been served five days after the time when the letter containing the same is posted;

 

(b)

facsimile, shall be deemed to have been served upon production by the transmitting facsimile machine of a report confirming transmission of the facsimile in full to the facsimile number of the recipient;

 

(c)

recognized courier service, shall be deemed to have been served 48 hours after the time when the letter containing the same is delivered to the courier service;

 

(d)

electronic mail, shall be deemed to have been served immediately upon the time of the transmission by electronic mail; or

 

(e)

placing it on the Company’s Website, shall be deemed to have been served one (1) hour after the notice or document is placed on the Company’s Website.

In proving service by post or courier service it shall be sufficient to prove that the letter containing the notice or documents was properly addressed and duly posted or delivered to the courier service.

 

35.6	A Member present, either in person or by proxy, at any meeting of the Company or of the holders of any class of shares in the Company shall be deemed to have received notice of the meeting, and, where requisite, of the purpose for which it was called.

 

35.7

Any notice or document delivered or sent by post to or left at the registered address of any Member in accordance with the terms of these Articles shall notwithstanding that such Member be then dead or bankrupt, and whether or not the Company has notice of his death or bankruptcy, be deemed to have been duly served in respect of any share registered in the name of such Member as sole or joint holder, unless his name shall, at the time of the service of the notice or document, have been removed from the Register of Members as the holder of the share, and such service shall for all purposes be deemed a sufficient service of such notice or document on all Persons interested (whether jointly with or as claiming through or under him) in the share.

 

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35.8	Notice of every general meeting of the Company shall be given to:

 

(a)

all Members holding shares with the right to receive notice and who have supplied to the Company an address, facsimile number or email address for the giving of notices to them; and

 

(b)

every Person entitled to a share in consequence of the death or bankruptcy of a Member who but for his death or bankruptcy would be entitled to receive notice of the meeting.

No other Person shall be entitled to receive notices of general meetings.

 

36	WINDING UP

 

36.1	The Board shall have the power in the name and on behalf of the Company to present a petition to the court for the Company to be wound up.

 

36.2

If the Company is wound up, the liquidator may, with the sanction of a Special Resolution and any other sanction required by the Act, divide among the Members in specie the whole or any part of the assets of the Company and may, for that purpose, value any assets and determine how the division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like sanction, vest the whole or any part of the assets in trustees upon such trusts for the benefit of the Members as he with the like sanction determines, but no Member shall be compelled to accept any assets upon which there is a liability.

 

36.3

If the Company shall be wound up and the assets available for distribution amongst the Members as such shall be insufficient to repay the whole of the paid up capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the capital paid up, or which ought to have been paid up, at the commencement of the winding up, on the shares held by them respectively. If in a winding up the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the capital paid up at the commencement of the winding up, the excess shall be distributed pari passu amongst the Members in proportion to the capital paid up at the commencement of the winding up on the shares held by them respectively. This Article is to be without prejudice to the rights of the holders of shares issued upon special terms and conditions.

 

37

INDEMNITY

 

37.1

Every Indemnified Person for the time being and from time to time of the Company and the personal representatives of the same shall be indemnified and secured harmless out of the assets and funds to the maximum extent permitted by Islands law as then in effect of the Company against all actions, proceedings, costs, charges, expenses, losses, damages, liabilities, judgments, fines, settlements and other amounts (including reasonable attorneys’ fees and expenses and amounts paid in settlement and costs of investigation (collectively Losses) incurred or sustained by him otherwise than by reason of his own dishonesty, wilful default or fraud in or about the conduct of the Company’s business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of his duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any Losses incurred by him in defending or investigating (whether successfully or otherwise) any civil, criminal, investigative and administrative proceedings concerning or in any way related to the Company or its affairs in any court whether in the Islands or elsewhere.

 

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Such Losses incurred in defending or investigating any such proceeding shall be paid by the Company as they are incurred upon receipt, in each case, of an undertaking by or on behalf of the Indemnified Person to repay such amounts if it is ultimately determined by a non-appealable order of a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification hereunder with respect thereto.

 

37.2

No such Indemnified Person of the Company and the personal representatives of the same shall be liable (i) for the acts, receipts, neglects, defaults or omissions of any other Director or officer or agent of the Company or (ii) by reason of his having joined in any receipt for money not received by him personally or in any other act to which he was not a direct party for conformity or (iii) for any loss on account of defect of title to any property of the Company or (iv) on account of the insufficiency of any security in or upon which any money of the Company shall be invested or (v) for any loss incurred through any bank, broker or other agent or any other party with whom any of the Company’s property may be deposited or (vi) for any loss, damage or misfortune whatsoever which may happen in or arise from the execution or discharge of the duties, powers, authorities or discretions of his office or in relation thereto or (vii) for any loss occasioned by any negligence, default, breach of duty, breach of trust, error of judgement or oversight on such Person’s part, unless he has acted dishonestly, with wilful default or through fraud.

 

37.3

The Company hereby acknowledges that certain Indemnified Persons may have certain rights to indemnification, advancement of expenses or insurance from or against (other than directors’ and officers’ or similar insurance obtained or maintained by or on behalf of the Company or any of its subsidiaries, including any such insurance obtained or maintained pursuant to Article 37.4 hereof) Other Indemnitors. The Company hereby agrees that: (i) it is the indemnitor of first resort (i.e., its obligations to an Indemnified Person are primary and any obligation of any Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Indemnified Person are secondary); (ii) it shall be required to advance the full amount of expenses incurred by an Indemnified Person and shall be liable for the full amount of all Losses to the extent legally permitted and as required by the terms of these Articles (or any other agreement between the Company and an Indemnified Person) without regard to any rights an Indemnified Person may have against any Other Indemnitors; and (iii) it irrevocably waives, relinquishes and releases any Other Indemnitors from any and all claims against the Other Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by any Other Indemnitors on behalf of an Indemnified Person with respect to any claim for which such Indemnified Person has sought indemnification from the Company shall affect the foregoing, and without prejudice to Article 38 below, Other Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person against the Company. For the avoidance of doubt, no Person or entity providing Directors’ or officers’ or similar insurance obtained or maintained by or on behalf of the Company or any of its subsidiaries, including any Person providing such insurance obtained or maintained pursuant to Article 37.4 hereof, shall be an Other Indemnitor.

 

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37.4

The Directors may exercise all the powers of the Company to purchase and maintain insurance for the benefit of a Person who is or was (whether or not the Company would have the power to indemnify such Person against such liability under the provisions of this Article 37 or under applicable law): (a) a Director, Secretary or auditor of the Company or of a company which is or was a subsidiary of the Company or in which the Company has or had an interest (whether direct or indirect); or (b) the trustee of a retirement benefits scheme or other trust in which a person referred to in Article 37.1 is or has been interested, indemnifying him against any liability which may lawfully be insured against by the Company.

 

38	CLAIMS AGAINST THE COMPANY

 

38.1

Notwithstanding Article 37.3, unless otherwise determined by a majority of the Board, in the event that (i) any Member (the Claiming Party) initiates or asserts any claim or counterclaim (Claim) or joins, offers substantial assistance to or has a direct financial interest in any Claim against the Company and (ii) the Claiming Party (or the third party that received substantial assistance from the Claiming Party or in whose Claim the Claiming Party had a direct financial interest) does not obtain a judgment on the merits in which the Claiming Party prevails, then each Claiming Party shall, to the fullest extent permissible by law, be obligated jointly and severally to reimburse the Company for all fees, costs and expenses (including, but not limited to, all reasonable attorneys’ fees and other litigation expenses) that the Company may incur in connection with such Claim.

 

39	UNTRACEABLE MEMBERS

 

39.1

Without prejudice to the rights of the Company under Article 39.2, the Company may cease sending cheques for dividend entitlements or dividend warrants by post if such cheques or warrants have been left uncashed on two (2) consecutive occasions. However, the Company may exercise the power to cease sending cheques for dividend entitlements or dividend warrants after the first occasion on which such a cheque or warrant is returned undelivered.

 

39.2	The Company shall have the power to sell, in such manner as the Board thinks fit, any shares of a Member who is untraceable, but no such sale shall be made unless:

 

(a)

all cheques or warrants in respect of dividends of the shares in question, being not less than three (3) in total number, for any sum payable in cash to the holder of such shares in respect of them sent during the relevant period in the manner authorised by the Articles of the Company have remained uncashed;

 

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(b)

so far as it is aware at the end of the relevant period, the Company has not at any time during the relevant period received any indication of the existence of the Member who is the holder of such shares or of a person entitled to such shares by death, bankruptcy or operation of law; and

 

	(c)	the Company, if so required by the rules governing the listing of shares on any Designated Stock Exchange, has given notice to, and caused advertisement in newspapers to be made in accordance with the requirements of, such Designated Stock Exchange of its intention to sell such shares in the manner required by such Designated Stock Exchange, and a period of three (3) months or such shorter period as may be allowed by such Designated Stock Exchange has elapsed since the date of such advertisement.
		For the purposes of the foregoing, the relevant period means the period commencing twelve (12) years before the date of publication of the advertisement referred to in this Article 39.2 and ending at the expiry of the period referred to in that paragraph.

 

39.3

To give effect to any such sale the Board may authorise some person to transfer the said shares and an instrument of transfer signed or otherwise executed by or on behalf of such persons shall be as effective as if it had been executed by the registered holder or the person entitled by transmission to such shares, and the purchaser shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity or invalidity in the proceedings relating to the sale. The net proceeds of the sale will belong to the Company and upon receipt by the Company of such net proceeds it shall become indebted to the former Member for an amount equal to such net proceeds. No trust shall be created in respect of such debt and no interest shall be payable in respect of it and the Company shall not be required to account for any money earned from the net proceeds which may be employed in the business of the Company or as it thinks fit. Any sale under this Article shall be valid and effective notwithstanding that the Member holding the shares sold is dead, in bankruptcy or otherwise under any legal disability or incapacity.

 

40	AMENDMENT OF MEMORANDUM AND ARTICLES

 

40.1

Subject to the Act, the Company may by Special Resolution, and (for so long as the Founding Shareholder and his Affiliates continue to beneficially own at least 10% of the Total Voting Power) with the consent of a majority of the Class B Ordinary Shares in issue, change its name or change the provisions of the Memorandum with respect to its objects, powers or any other matter specified therein.

 

40.2

Subject to the Act and as provided in these Articles, the Company may at any time and from time to time by Special Resolution, and (for so long as the Founding Shareholder and his Affiliates continue to beneficially own at least 10% of the Total Voting Power) with the consent of a majority of the Class B Ordinary Shares in issue, alter or amend these Articles in whole or in part.

 

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41	TRANSFER BY WAY OF CONTINUATION

 

41.1

The Company may by Special Resolution resolve to be registered by way of continuation in a jurisdiction outside the Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing. In furtherance of a resolution adopted pursuant to this Article, the Directors may cause an application to be made to the Registrar of Companies to deregister the Company in the Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing and may cause all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company.

 

42	MERGER AND CONSOLIDATION

 

42.1

Subject to the Act and the rules of any Designated Stock Exchange, the Company shall, with the approval of a Special Resolution, have the power to merge or consolidate with one or more constituent companies (as defined in the Act), upon such terms as the Directors may determine, provided that (for so long as the Founding Shareholder and his Affiliates continue to beneficially own at least 10% of the Total Voting Power) any such merger or consolidation shall, subject to require the consent of the Founding Shareholder.

 

42.2

For the avoidance of doubt: a) statutory mergers and consolidations have the specific meaning as set out in Act, b) no additional requirements are imposed by the Articles, and c) transactions which are not deemed by the Directors, in their sole discretion following due deliberations and advice, to be a merger or consolidation as set out in the Act, do not require a Special Resolution and may be carried out by the Company with the approval of Directors and shall not (unless otherwise set out in these Articles or the Act) require separate Member approval.

 

43	SUBMISSION TO JURISDICTION

 

43.1

Unless the Company (through the approval of the Board) consents in writing to the selection of an alternative forum, the Grand Court of the Cayman Islands shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company; (ii) any action or proceeding asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the Company to the Company or to any other person; (iii) subject to Article 43.2 below, any action or proceeding asserting a claim against the Company or any director or officer or other employee of the Company arising pursuant to, or seeking to enforce any right, obligation or remedy under, any provision of the Act, any other provision of applicable law, the Memorandum or these Articles; (iv) any action or proceeding seeking to interpret, apply, enforce or determine the validity of the Memorandum or these Articles; or (v) any action or proceeding as to which the Act confers jurisdiction on the Grand Court of the Cayman Islands.

 

43.2

Unless the Company (through approval of the Board of Directors) consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act.

 

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43.3	Any person or entity purchasing or otherwise acquiring or holding any interest in shares in the capital of the Company shall be deemed to have notice of and to have consented to the provisions of this Article 43.

 

43.4	If any provision or provisions of this Article 43 shall be held to be invalid, illegal or unenforceable for any reason whatsoever, the validity, legality and enforceability of the remaining provisions of this Article 43 shall not in any way be affected or impaired thereby.

 

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Exhibit 4.1

SERVICES AGREEMENT FOR BRAZILIAN DEPOSITARY RECEIPT (BDRs) ISSUING DEPOSITARY BANK

By this Services Agreement for Brazilian Depositary Receipt Issuing Depositary Bank, hereinafter simply referred to as “Agreement”, the parties of which are:

(a) BANCO BRADESCO S.A., financial institution with its principal place of business in Núcleo Cidade de Deus, Vila Yara, no number, Osasco, State of São Paulo, enrolled with the National Corporate Taxpayers Register of the Ministry of Economy (CNPJ/ME) under No. 60.746.948/0001-12, herein presented by its legal representatives undersigned (“BRADESCO”); and

(b) NU HOLDINGS LTD., foreign company organized under the laws of Cayman Islands, with office in Campbells Corporate Services Limited, Floor 4, Willow House, Cricket Square, Grand Cayman KY1-9010, Cayman Islands, enrolled with the CNPJ/ME under No. 24.410.913/0001-44, herein duly presented by its legal representative (“PRINCIPAL”);

BRADESCO and PRINCIPAL jointly referred to as “Parties” or individually as “Party”.

RECITALS:

I. WHEREAS BRADESCO is a financial institution qualified and authorized, by the Central Bank of Brazil and the Brazilian Securities Commission (“CVM”), to provide services for the issue, deposit and bookkeeping of securities deposit certificates, pursuant to articles 27, 34, sole paragraph, and 43 of Law No. 6,404, of December 15, 1976, as amended (“LSA”), and CVM Resolution No. 33, of May 19, 2021; according to the relevant legislation, in particular, but not limited to, CVM Instruction No. 332, of April 4, 2000 (“ICVM 332”), and Resolution No. 3, of August 11, 2020, and the authorizations granted to it by the relevant authorities;

II. WHEREAS PRINCIPAL is a company with principal place of business abroad, issuer of shares that shall back BDRs, in process of registration with CVM as a foreign issuer, as well as of its BDR Program – Level III Sponsored pursuant to Article 3, item III, of ICVM 332; and

III. WHEREAS PRINCIPAL resolves to contract BRADESCO for the provision of Depositary Institution services within the scope of the BDR Program, which shall be backed by shares issued by it.

The Parties named and qualified above, undersigned, duly represented by their legal representatives, as set forth in their organizational documents or other documents, hereby agree to this Agreement, pursuant to the following sections and conditions:

SECTION ONE

DEFINITIONS

“Share(s)” – Class A Common Share(s) issued by PRINCIPAL.

“Central Bank” – Central Bank of Brazil.

“BDRs” – Brazilian Depositary Receipts, to be issued by BRADESCO under the terms of this Agreement and the applicable legislation, within the scope of a BDR Program – Level III, sponsored by PRINCIPAL. Each BDR shall (i) represent a percentage of a Share, which shall be timely defined at the time of launch of the initial public offering, and which shall be deposited with the Custodian, (ii) be issued by BRADESCO in registered book-entry form, integers, without fractions, and (iii) be negotiable on an organized over-the-counter market and on a stock exchange. Each BDR shall grant its holder all rights and benefits proportional to the percentage of Shares it represents, provided that the exercise of the rights granted to the Beneficiaries shall be subject to the terms and conditions set forth in this Agreement.

 

“Beneficiaries” – Individual or legal entity in whose name a BDR may be registered in BRADESCO’s deposit accounts held for this purpose.

“B3” – B3 S.A. - Brasil, Bolsa e Balcão.

“Brazilian Civil Code” – Law No. 10,406, of January 10, 2002, as amended.

“Custodian” – The Bank of New York Mellon, as agent of BRADESCO, for the purposes of this Agreement, and any other company that may in the future be appointed custodian by BRADESCO, subject to prior written acceptance by the CUSTODIAN.

“CVM” – Brazilian Securities Commission.

“Business Days” – Days in which banks are open in the Cities of São Paulo and New York.

“Proportion of BDRs’ Backing” – a percentage of a Share, defined according to the initial public offering.

SECTION TWO

PURPOSE

2.1. The purpose of this Agreement is to regulate the terms and conditions under which BRADESCO shall provide the Depositary Institution services, with the obligation to proceed with the issue, deposit and bookkeeping of PRINCIPAL’s Brazilian depositary receipts (the BDRs), under the terms of the applicable legislation.

SECTION THREE

DESCRIPTION OF THE SERVICES

3.1. Registration of the BDR Program with CVM – BRADESCO, as an issuing and depositary institution, together with PRINCIPAL, shall provide for registration with CVM of the Sponsored BDR Program – Level III.

3.2. Issue of BDRs – BRADESCO shall issue BDRs, in registered book-entry form, backed by PRINCIPAL’s Shares that are deposited in its name with the Custodian.

3.2.1. For the issue of BDRs, the Beneficiary, under its responsibility, may, at any time, instruct a Brazilian brokerage firm that acts together with a foreign brokerage firm to carry out the purchase and/or deposit of Shares abroad, with the purpose of backing the issue of BDRs in Brazil, making the deposit of the Shares with the Custodian.

3.2.2. In the purchase of Shares abroad, which shall back the issue of BDRs, the brokerage firm shall provide for the contracting and closing of exchange, with the specific nature for the BDR Program, in addition to the submission of the purchase brokerage bill and other documents that may be required by the financial institution responsible for closing the exchange.

3.2.3 Upon receiving the information related to the foreign exchange operations mentioned in Section 3.2.2 above, BRADESCO shall register the corresponding currency operations and the relevant changes in the ownership records of the BDRs in the registry books: (i) the Custodian shall receive the information from the Brazilian custody agent or brokerage firm, stating which custody agent and customer in Brazil should receive the BDRs; (ii) upon receipt of the information, the Custodian shall inform BRADESCO of the Shares received by the Custodian through communication from PRINCIPAL or any other accepted in this Agreement; (iii) the fees related to the issue of BDRs shall be transferred to the Beneficiary as described in item 4 of Exhibit I to this Agreement; and (iv) all documents relevant to the BDRs purchase process shall be sent to BRADESCO.

3.3. Only after delivery of: (i) Beneficiaries’ information (communication from PRINCIPAL); (ii) issue fee; (iii) instruction to issue BDRs; (iv) copy of the FX agreement for payment of Shares abroad; (v) copy of the brokerage bill, and (vi) verification of documents, BRADESCO shall issue the relevant BDRs.

 

3.4. Information to the Central Bank, CVM and Relevant Authorities – BRADESCO shall communicate to the Central Bank and other relevant authorities, in the manner and within the term provided for in the regulations in force, about the operations that occurred in relation to the BDRs, including, without limitation, the name of the Beneficiaries, as amended from time to time, and the cancellation of BDRs.

3.4.1. BRADESCO agrees to provide CVM, at any time and within the term that may be determined by the latter, any information and documents relating to the approved BDR Program and the issued BDRs, keeping the statements that reflect the daily operation of issued and canceled BDRs up to date and available.

3.5. Implementation of data – BRADESCO shall implement in its system the name and qualification of the Beneficiaries, the respective number, type and form of the BDRs and any existing liens, according to the reports provided by the Custodian through communication from PRINCIPAL, by PRINCIPAL, or by B3, as set forth section 3.2.2 above.

3.6. Registration of BDRs – BRADESCO shall maintain, on behalf of each Beneficiary, or on behalf of B3, for investors who wish to hold their BDRs in custody, a registration of the BDRs, being responsible for the bookkeeping, control and custody of the books, keeping CVM informed and available to it any and all facts related to the BDRs or PRINCIPAL.

3.6.1. The BDRs may be kept in custody at B3, and it is possible to withdraw from custody for registration in PRINCIPAL’s BDRs Registry Book maintained by BRADESCO.

3.6.2. Ownership of the BDRs shall be presumed through the extract to be provided by BRADESCO to the BDR holders who maintain their certificates in the BDRs Registry Book, and through the custody extract to be provided by B3 to the BDR holders who hold their certificates in custody at the latter institution.

3.7. Information to PRINCIPAL – BRADESCO shall provide PRINCIPAL with access to the records of the BDRs, and shall also provide PRINCIPAL, if requested by its representative, with the following documents:

(i) daily list of the names of the Beneficiaries and the gross, net and withholding income tax amounts, relating to the payment of dividends and other income;

(ii) ratio of the total gross, net and withholding income tax amounts, relating to the payment of dividends and other income, according to the frequency required by tax legislation;

(iii) list or magnetic tape annually provided with the name of the Beneficiaries and the gross, net and withholding income tax amounts, relating to the payment of dividends and other income;

(iv) list of each trade carried out by the holder of the BDRs, with the information provided by the non-organized over-the-counter market or by the stock exchange where they are traded;

(v) monthly list of the names of the Beneficiaries and the position of each one;

(vi) daily list, and at the end of the preferential and unsubscribed terms, of the name and qualification of the subscribers, the number of PRINCIPAL’s Shares subscribed relevant to the BDRs, and the amounts received;

(vii) list of the names of BDR holders relating to any date chosen by PRINCIPAL and, in particular, on specific cut-off dates for the purpose of attending PRINCIPAL’s corporate events, including, but not limited to, that of Beneficiaries for shareholders’ meetings.

 

(vii.i) exclusively in relation to the BDRs held in custody at B3, the availability to PRINCIPAL is subject to the submission of the necessary information, in a timely manner, by B3 to BRADESCO.

3.7.1. Other specific information and services requested or in a specific layout to be provided/required by PRINCIPAL, or that are not within the information made available by BRADESCO during the services provided, shall be subject to the availability of BRADESCO’s systems, and shall be carried out upon acceptance by PRINCIPAL of budget to be carried out for the execution of the services.

3.8. Information to Beneficiaries, usufructuaries and trustees – BRADESCO shall provide Beneficiaries, usufructuaries and trusteeswith the following documents:

(i) BDRs account statement whenever requested and, if not, once a year;

(ii) dividend payment notice;

(iii) reports for the purpose of income tax return;

(iv) within a maximum period of one (1) business day counted as from the date of receipt of the information from PRINCIPAL, reports in order to make the decisions public, as well as all other corporate actions and communications from PRINCIPAL (information to owners or holders of their shares, voting procedures, tabulation of votes, etc.) that affect BDRs or the rights and prerogatives attached thereto.

3.8.1. BRADESCO undertakes to develop and have available the electronic reporting system set forth in item (iii) of section 3.8, provided that BRADESCO shall not send any printed correspondence to investors without PRINCIPAL’s knowledge and authorization.

3.9. Bookkeeping and record of books and documents – BRADESCO shall book the opening and closing instruments, promoting the registration with the relevant agency through BDRs registry books.

3.9.1. The BDRs registry book shall record the total number of BDRs, as well as issues, cancellations and amendments arising from corporate events, such as stock splits, reverse splits, redemptions, stock dividends, among others.

3.9.2. BRADESCO shall from time to time reconcile the BDRs recorded in the BDRs Registry Book with the total number of Shares deposited with the Custodian.

3.9.3. The BDRs registry book shall contain the individual BDR holders, as well as the total number of BDRs on behalf of B3, as the trustee of the certificates, which shall be blocked for deposit in a custody account in such entity.

3.10. BRADESCO shall carry out the storage and microfilming of corporate books related to the service provided and the films used in the microfilming of PRINCIPAL’s books and documents.

3.11. Dividends and Distributions:

3.11.1. Cash Distributions – Whenever BRADESCO receives any cash dividend or other cash distribution on any PRINCIPAL’s Shares, BRADESCO, through the execution of a FX agreement, shall convert such dividend or distribution into BRL and distribute the net amount thus received to the Beneficiaries entitled thereto, in proportion to the number of BDRs held by them respectively; provided, however, that in the event that PRINCIPAL or BRADESCO is required to withhold and actually withheld such cash dividend or such other cash distribution, an amount due to taxes, the amount distributed to the BDRs Beneficiary shall be reduced accordingly. BRADESCO shall only distribute the amount that may be distributed without allocating to any Beneficiary a fraction of a penny by rounding it to the next whole penny of a lower value. PRINCIPAL shall not pay interest or any other compensation for the period between the date on which dividends and other cash distributions are paid abroad and the date on which the funds are credited to the Beneficiaries in Brazil, provided that PRINCIPAL simultaneously discloses abroad and in Brazil the information on the payment of dividends and other cash distributions.

 

3.11.2. Distributions in PRINCIPAL’s Shares (Stock Dividend/Stock Split) – With due regard for the corporate acts of PRINCIPAL, in the event that any allocation of any PRINCIPAL’s Shares occurs in shares, BRADESCO shall automatically convert, and provided that permitted by applicable law, the same into BDRs, subject to the terms and conditions of this Agreement, registering them on behalf of the right-holder in proportion to the number of BDRs held by the right-holder respectively. However, with due regard for PRINCIPAL’s bylaws or articles of association, in the event of allocating a fraction of BDR to one or more Beneficiaries, BRADESCO shall sell the number of PRINCIPAL’s Shares received representing the sum of the fractional parties allocated and shall distribute the net amount received as set forth in Section 3.11.1.

3.11.3. PRINCIPAL shall not pay interest or any other compensation for the period between the date on which the fractions insufficient to form a BDR are assigned and transferred to BRADESCO and the date on which the funds obtained from the sale of the fractions are delivered to the Beneficiaries.

3.11.4. Other distributions – Whenever BRADESCO receives distributions other than those set forth above, BRADESCO shall distribute them to eligible Beneficiaries in proportion to the number of BDRs held by them respectively, provided that in accordance with applicable law. If, in BRADESCO’s opinion, such division may not be carried out proportionately, BRADESCO may choose any method it deems equitable and feasible for the purpose of executing such distribution.

3.11.5. Method of Payment to the Beneficiaries – Payments to the Beneficiaries shall be made within three (3) business days after receipt by BRADESCO, in Brazil, of said funds, in the following modalities:

(i) by credit to B3, in the case of Beneficiaries who hold BDRs in custody at B3. B3, in turn, shall carry out the distribution to custody agents and brokerage firms, who/which shall be responsible for making the credits to the Beneficiaries registered in their records;

(ii) by crediting the current account, as indicated, that the Beneficiary maintains with BRADESCO;

(iii) by remittance of DOC – Credit Transfer Document or TED – Electronic Funds Transfer for credit to a current or payment account, as indicated, that the Beneficiary maintains with another financial or payment institution, BRADESCO not being responsible for the delay in crediting the amount caused by the financial institution to which the DOC or TED shall be sent.

(iv) personally to the Beneficiary, upon his/her attendance at any of the locations indicated in Section 10, when he/she does not have a bank or payment account.

(v) BRADESCO shall not remit dividends abroad.

3.12. Preemptive Rights and Subscription of PRINCIPAL’s Shares, Securities and any other rights applicable to the BDRs – After being informed about the granting of preemptive rights to subscribe for bonds and securities, BRADESCO shall notify the Beneficiaries and B3 about the granting of this right, requesting the Beneficiaries to express their interest in exercising the right or disposing of it, and PRINCIPAL shall responsible for disclosing this fact to the Brazilian market as provided for in the applicable regulations.

 

3.12.1. PRINCIPAL or the Custodian shall be responsible for informing BRADESCO of the number of bonds and securities that may be subscribed, as well as the proportion for the exercise of this right by the Beneficiaries. PRINCIPAL or the Custodian shall also be responsible for informing BRADESCO of other information relating to the exercise of preemptive rights, such as (i) the issue price of the bonds and securities, which shall be converted into national currency and subject to the relevant fees; (ii) the period for exercising the subscription right; (iii) the deadline for BDR holders to express their interest to BRADESCO; (iv) the treatment of any unsubscribed shares; and (v) other information that has been disclosed abroad.

3.12.2. The subscription price of bond and securities to be paid by BDR holders shall consist of the sum of the following items: (i) subscription price in foreign currency converted into national currency at the PTAX sale rate, published by the Central Bank, on the day prior to sending the subscription information that BRADESCO discloses to the market; (ii) exchange rate change verified up to the payment date, added to the issue fee per BDR, indicated in item 4 of Exhibit I to this Agreement.

3.12.3. For BDR holders that are held in custody at B3, the latter shall individually credit the subscription rights to each BDR holder, through brokerage firms or custody users, who/which shall inform their customers, who/which shall choose to subscribe or sell the subscription rights in Brazil, or even not exercise any of the options above. BDR holders that have their certificates registered in the BDRs registry book shall receive from BRADESCO the subscription instrument, through which they shall be able to exercise their right or transfer it to another investor.

3.12.4. The brokerage firm or custody agent shall exercise the right on behalf of the Beneficiaries before B3, making the payment to the latter, which shall settle the transaction, crediting the corresponding amounts to BRADESCO, including the amount referring to the fees described in sub-item 3.12.2. The BDRs subscribed with BRADESCO shall be settled in the institution itself.

3.12.5. BRADESCO shall receive from the brokerage firms, which provide custody services through B3, the amounts necessary to pay for the subscription, plus the fees indicated in sub-item 3.12.2, and shall provide for closing of exchange for remittance abroad of the amounts due in favor of the Custodian.

3.12.6. The Custodian shall receive the amount corresponding to the issue price of the Shares in foreign currency and shall be responsible for making the respective payment to PRINCIPAL, receiving the Shares, which shall be deposited on behalf of BRADESCO with the Custodian, backing the BDRs to be issued in Brazil.

3.12.7. PRINCIPAL shall not pay interest or any other compensation for the period between the date on which the bonds and securities are subscribed and the date on which they are delivered to the Beneficiaries.

3.13. Stock split, reserve split and stock dividend – With due regard for the provisions of PRINCIPAL’s by-laws or articles of association, BRADESCO shall amend the registration of the BDRs in cases of stock split, reverse split or stock dividend credit, in proportion to the rights corresponding to them.

3.14. Beneficiaries shall not be offered rights or any other prerogatives that are or result in being illegal or not accepted by current Brazilian legislation, or the availability of which to the Beneficiaries is impracticable.

3.15. Cancellation of BDRs – With due regard for the provisions of PRINCIPAL’s by-laws or articles of association, BDRs may be canceled at any time, upon delivery of BDRs to BRADESCO for the purpose of obtaining PRINCIPAL’s Shares represented by them, payment of the applicable taxes and fees and the execution of a BDRs cancellation instrument and other documents that may be necessary to comply with all legal obligations, and the relevant Beneficiaries shall receive, as soon as possible, PRINCIPAL’s Shares represented by the delivered BDRs, provided that it shall not be possible to cancel the number of BDRs that result in a fraction of Company’s Share.

 

3.15.1 As soon as any Beneficiary has delivered their BDRs to BRADESCO, as set forth in Section 3.15. above, BRADESCO shall instruct the Custodian to deliver PRINCIPAL’s Shares represented by the canceled BDRs to such Beneficiary, the delivery of which shall take place at the Custodian’s central office or at any other place agreed between the Custodian and the relevant Beneficiary.

3.16. Exercise of Voting Rights – The Beneficiaries shall have the right to instruct BRADESCO to exercise the vote corresponding to the Shares deposited with the Custodian, exclusively in relation to matters in which such Shares have voting rights, as set forth in PRINCIPAL’s bylaws.

3.16.1. PRINCIPAL, when calling a general shareholders’ meeting in which the Shares have voting rights, shall send the call notice to BRADESCO, already translated into Portuguese, on the same date of its disclosure to the market, so that BRADESCO may notify the Beneficiaries.

3.16.2. Upon receipt of the call notice as set forth in Section 3.16.1 above, BRADESCO, as soon as possible, shall send a communication to the Beneficiaries, at the addresses they maintain with BRADESCO and/or registered with B3 and the relevant brokerage firms or custody agents, which shall contain: (a) the information included in the call notice received by BRADESCO, (b) a statement that the Beneficiaries shall have the right to send their expression of vote to BRADESCO no later than five (5) business days before the meetings are held, by filling in the voting instructions according to the form to be sent together with the aforementioned communication; the voting instructions may be delivered via facsimile, mail or in person, to the addresses to be indicated by BRADESCO in the relevant communication, within the aforementioned period.

3.16.3. BRADESCO, upon receiving the correspondence in a timely manner to pass on the information, with the relevant voting instructions, shall tabulate and send the information to the Custodian, through a message from PRINCIPAL, correspondence in a .pdf file, SWIFT message or facsimile, within the shortest possible period before the meetings are held or according to the applicable regulatory period. The Custodian, upon receiving the information, shall vote or appoint a proxy to vote at the relevant shareholders’ meeting, in accordance with the voting instructions received from BRADESCO.

3.16.4. BRADESCO and its agents shall not be responsible for failure resulting from non-receipt of the voting instructions or non-receipt of such instructions in a timely manner.

3.16.5. In any case, BRADESCO shall not have the right to exercise, on a discretionary basis, the voting rights relating to the Shares backing the BDRs.

3.16.6. If BRADESCO does not receive voting instructions from all Beneficiaries by the stipulated date, BRADESCO shall exercise the voting rights considering only the instructions received from the Beneficiaries who expressed their interest within the specified period.

3.17. Service location – The Beneficiaries shall be serviced at the locations mentioned in Section Ten of this Agreement.

3.17.1. BRADESCO may change the service locations, upon written communication to PRINCIPAL and the Beneficiaries.

3.18. Chargeable Fees from the Beneficiaries – Within the scope of this Agreement, BRADESCO may charge the Beneficiaries the fees agreed from time to time with PRINCIPAL, which shall be included in this Agreement as Exhibit I.

 

3.19. Maintenance of Authorizations and Records—During the term of effectiveness of this Agreement, BRADESCO agrees to maintain in full force all government authorizations necessary for the provision of the services subject matter of this Agreement.

SECTION FOUR

OBLIGATIONS OF THE PARTIES

4.1. In addition to the obligations already listed throughout this Agreement, PRINCIPAL agrees to:

4.1.1. On the stipulated date, PRINCIPAL agrees to credit the current account to be designated by BRADESCO with the amount of the compensation indicated in Section Six regarding the provision of the services herein agreed, as well as agrees to:

4.1.2. Ensure that the Shares backing the BDRs remain deposited on behalf of BRADESCO in the account that it maintains with the Custodian.

4.1.3. Deliver to the Custodian the funds related to dividends, stock dividends and other cash distributions corresponding to the BDRs.

4.1.4. Keep BRADESCO permanently informed about its resolutions related to the services herein agreed.

4.1.5. Communicate to BRADESCO, on the date they are called abroad, of the holding of any corporate events, including meetings, in a timely manner so that BRADESCO may comply with the terms of this Agreement.

4.1.6. Do not perform or grant powers for a third party to perform any act related to the service contracted herein without the prior consent of BRADESCO.

4.1.7. Pay and/or collect all future taxes and fees that may be due, on their maturity date, to the relevant authorities, the responsibility of which is assigned by the applicable legislation.

4.1.8. Simultaneously disclose in Brazil the information disclosed abroad, including material facts and corporate events decided abroad.

4.2. In addition to the events set forth above, PRINCIPAL agrees to carry out all publications required by the applicable legislation and regulations. If BRADESCO is required to make any publication on behalf of PRINCIPAL under the terms of the applicable regulations, PRINCIPAL shall refund the amounts spent by BRADESCO for this purpose.

4.3. In addition to the obligations already listed throughout this Agreement, BRADESCO agrees to:

4.3.1. Keep the registration of the BDR Program updated with CVM, as well as request from CVM any changes to the BDR Program requested by PRINCIPAL, using the information provided by PRINCIPAL for this purpose;

4.3.2. Issue the BDRs according to the backing of the Shares deposited with the CUSTODIAN;

4.3.3. In relation to the BDRs held in its custody, register the transfers of BDRs and their relevant annotations in the book-entry system for the registration of BDRs;

4.3.4. Upon PRINCIPAL’s request, register in B3’s system the BDRs that may be admitted to trading in such entity’s trading environments;

4.3.5. Adopt, in the performance of its duties and in the fulfillment of its obligation, the same standard of care that it exercises in relation to its own assets, observing the professional principles and standards of normal diligence, prudence and expertise for certificate issue activities;

 

4.3.6. Take responsibility for proven acts or omissions that are attributable to it and that cause the deterioration or perishing of the BDRs or the rights attached thereto;

4.3.7. Transfer to B3 the funds paid to it by PRINCIPAL, directly or through the CUSTODIAN, relating to the cash distributions to which the BDR holders registered in B3’s system are entitled, as well as the funds obtained from the sale of fractions of BDRs in B3, if applicable;

4.3.8. Maintain in full force all legal authorizations necessary to provide the services set forth in this Agreement;

4.3.9. Pursuant to article 5, paragraph five, of CVM Instruction 332, provide CVM, at any time and within the period that may be determined by the latter, with any information and documents relating to the BDR Program and the BDRs; and

4.3.10. Observe the procedures for discontinuing the BDR Program that are established by the stock exchange or entity of the organized over-the-counter market in which they are traded.

SECTION FIVE

BENEFICIARIES’ RIGHTS

5.1. Each BDR shall grant its holder all rights and benefits proportional to the percentage of the Share it represents, provided that the Beneficiaries are not PRINCIPAL’s shareholders and the exercise of the rights granted to the Beneficiaries is subject to the terms and conditions set forth in this Agreement.

5.2. The Beneficiaries may, at any time and upon payment of the fee indicated in item 4 of Exhibit II to this Agreement, if applicable, in accordance with the provisions of section 3.14 above, request that the BDRs held by them be canceled and thus receive PRINCIPAL’s Shares represented by the canceled BDRs, provided that it shall not be possible to cancel the number of BDRs that result in a fraction of Company’s Share. BRADESCO may require the Beneficiaries to present documents that evidence their identity and ownership of the BDRs. BRADESCO may refuse to cancel the BDRs of the Beneficiaries who/which have not complied with their tax, FX or other obligations relating to the investment in the BDRs.

SECTION SIX

COMPENSATION AND COSTS

6.1. For the services provided and as a reimbursement of incurred costs, PRINCIPAL shall pay BRADESCO the compensation indicated in Exhibit II, in accordance with the provisions established therein.

SECTION SEVEN

POWER OF ATTORNEY AND AUTHORIZATIONS

7.1. PRINCIPAL hereby irrevocably and irreversibly appoints and constitutes BRADESCO as its attorney-in-fact, in accordance with articles 653, 683, 686 and its sole paragraph of the Brazilian Civil Code, to which it grants special and specific powers to represent it in the performance of the acts necessary for the provision of the services contracted herein, especially to record transfers, operations and blocking of assets, execute resolutions of its Annual and Special General Meetings, of the Board of Directors or its Executive Board, pay willful events, give and receive release, sign instruments of Opening and Closing of Corporate Books intended for the registration of shares, represent it before the BDR holders, departments of the Registry of Commerce, Boards of Commerce in general, Collection Agencies of the Ministry of Finance, Stock Exchange, B3, Central Bank, CVM, brokerage firms and distribution companies, and financial institutions in general, exclusively aiming at the achievement of the subject matter of the Agreement, the delegation of powers being permitted, in whole or in party.

 

7.2. BRADESCO shall strictly observe the instructions given to it by PRINCIPAL to execute the power of attorney granted to it. Therefore, the execution of any other legal transaction alien to this Agreement is forbidden.

7.3. BRADESCO is authorized by PRINCIPAL, irrevocably and irreversibly, to provide information from the database of BDR holders or deposit accounts to regulatory and supervisory agencies and courts when requested, as well as to accept blocking orders for BDRs registered in the deposit accounts, provided that BRADESCO shall notify PRINCIPAL as soon as it receives a request for information from regulatory and supervisory agencies and courts, as well as any blocking orders for BDRs registered in the deposit accounts.

SECTION EIGHT

TERM OF EFFECTIVENESS AND TERMINATION

8.1. This Agreement is executed for an indefinite period of time, provided that, until the eighteenth (18th) month, counted as from the date of execution of this instrument (“Minimum Term”), the Agreement may not be terminated by any of the Parties.

8.1.1. After the expiration of the Minimum Term, this Agreement may be terminated, at any time, by any of the Parties, without the right to compensation or indemnification, upon notice from the interested Party to the other Party, at least one hundred and eighty (180) days in advance, counted as from the receipt of the communication by the other Party.

8.2. BRADESCO, after the expiration of the Minimum Term, may resign the position of Depositary Institution, as set forth herein, upon notice delivered to PRINCIPAL, which shall only enter into full force and effect after (i) the expiration of the period of one hundred and eighty (180) days counted as from the delivery date or (ii) the appointment, by PRINCIPAL, of a new depositary agent (“New Depositary”) and the express acceptance, by the New Depositary, of such appointment, whichever occurs first, provided that the Parties may negotiate, by mutual agreement, to continue this Agreement for a period longer than the period mentioned in this section.

8.3. PRINCIPAL, after the expiration of the Minimum Term, may remove BRADESCO from the position of Depositary Institution, as set forth herein, upon notice delivered to BRADESCO, which shall only enter into full force and effect after (i) the expiration of the period of one hundred and eighty (180) days counted as from the delivery date or (ii) the appointment, by PRINCIPAL, of a New Depositary and the express acceptance, by the New Depositary, of such appointment, whichever occurs first.

8.4. In both cases described in sections 8.2 and 8.3 above, BRADESCO, within a maximum period of two (2) business days counted as from the delivery of the notice (in the case of Section 8.2) or the receipt thereof (in the case of Section 8.3), shall communicate in writing this fact to the Beneficiaries, by means of correspondence sent to the addresses of the respective brokerage firms or custody agents, and PRINCIPAL shall disclose such fact to the Brazilian market as provided for in the applicable regulations.

8.5. In the event of BRADESCO’s resignation or removal, in the manner and within the periods set forth in Sections 8.2 and 8.3 above, PRINCIPAL shall use its best efforts to appoint a New Depositary.

8.5.1. Immediately after the appointment of the New Depositary, PRINCIPAL shall notify BRADESCO of this fact. BRADESCO, immediately upon receipt of such notice, shall transfer to the New Depositary the registry of Beneficiaries and all rights and powers held by it due to the position of Depositary Institution, including, without limitation, ownership of PRINCIPAL’s Shares backing the BDRs.

 

8.6. As soon as PRINCIPAL has appointed a New Depositary, BRADESCO, provided that PRINCIPAL has complied with all its obligations defined in Section Four, agrees to:

(i) immediately provide PRINCIPAL or the New Depositary with all information and documents that it may possess as a result of the services provided;

(ii) facilitate the transfer of the BDRs, books, records and other information relating thereto to PRINCIPAL or the New Depositary, including making its qualified personnel available for such transfer, within a period to be determined at the time;

(iii) provide the services stipulated herein until the actual transfer thereof to the New Depositary.

8.7. The Beneficiaries, within a maximum period of ninety (90) days, counted as from the date of BRADESCO’s resign or removal, as Depositary Institution of the BDR Program, with due regard for the bylaws or articles of association, may request BRADESCO to cancel their BDRs, pursuant to the regulations then in force and the receipt of PRINCIPAL’s Shares backing these BDRs, provided that it shall not be possible to cancel the number of BDRs that result in a fraction of Company’s Share.

8.8. After the expiration of the period of ninety (90) days for the request to cancel the BDRs mentioned in Section 8.7 above, if there are still issued and outstanding BDRs, BRADESCO shall no longer register any transfer of ownership of these BDRs, as well as make any distribution to the Beneficiaries of assets and/or funds received by it, for the benefit of the Beneficiaries, as depositary agent of the BDRs. However, BRADESCO shall continue to cancel BDRs and accrue the assets and funds received by it, for the benefit of the Beneficiaries, as Depositary Institution of the BDRs.

8.9. Upon expiration of the period of one (1) year counted as from the end of the period of ninety (90) days for the request to cancel the BDRs mentioned in Section 8.8 above, BRADESCO shall cancel the BDRs then outstanding and sell PRINCIPAL’s Shares backing these BDRs, as well as the assets that have been accrued and not distributed to the Beneficiaries, as set forth in Section 8.9 above. The funds thus obtained, together with the funds accrued for the benefit of the Beneficiaries and not distributed to them, as set forth in Section 8.9 above, shall be deposited in a single bank account, without compensation, and shall be used for payment to the Beneficiaries, who/which may claim to BRADESCO the receipt of the amounts corresponding to their BDRs, discounting any and all maintenance fees, charges or taxes, of any nature, levied on the funds held in this bank account.

8.11. Notwithstanding the provisions of Sections 8.1 to 8.10 above, this Agreement may be immediately terminated by written communication, with due regard for, however, the provisions of section 8.6 above:

(i) in case of non-compliance with any contractual obligation; not cured within fifteen (15) business days of receipt of the notice informing such non-compliance;

(ii) if either Party:

a) goes bankrupt, files for judicial reorganization or initiates out-of-court reorganization procedures, has its bankruptcy, intervention or liquidation required;

b) has its authorization to provide the services contracted herein revoked.

SECTION NINE

AUTHORIZED AND CONTACT PERSONS

9.1. BRADESCO shall only provide information and/or comply with PRINCIPAL’s orders signed by the legal representatives, attorneys-in-fact appointed by power of attorney or indicated in the List of Authorized Persons (“Authorized Persons”).

 

9.1.1. Orders may be sent in writing or by electronic means (via Internet, email or facsimile), provided that the means used may identify the legal representative and/or person authorized by PRINCIPAL.

9.1.2. In cases where communication is sent by electronic means (via Internet, email or facsimile), PRINCIPAL shall confirm receipt of the orders by BRADESCO.

9.1.3. PRINCIPAL agrees to immediately notify BRADESCO of the changes, inclusions and exclusions of any Authorized Person or data informed, updating the List of Authorized Persons.

9.1.4. Instructions transmitted by the Authorized Persons shall be accepted by BRADESCO, until notified otherwise in writing by PRINCIPAL.

9.1.5. In case of ambiguity in the instructions transmitted by any of the Authorized Persons, BRADESCO shall:

(i) immediately inform in writing the issuer of the instruction regarding this ambiguity; and

(ii) refuse to comply with these instructions until the ambiguity is cured.

9.2. It is agreed between the Parties that the communications between them, set forth in this Agreement, as necessary to achieve the provision of the services agreed herein, to be considered valid, shall be made in a clear, complete, secure and timely manner, by the means set forth in this Agreement, always confirming the receipt immediately, directed and received by people with powers to do so.

9.3. BRADESCO, without any liability, shall comply with the instructions it believes in good faith to have been given by PRINCIPAL’s Authorized Persons, provided that it has taken all the precautions set forth in this Agreement in order to ensure that the instructions have been given by Persons Authorized.

9.4. All notices and communications between the Parties required or permitted under this Agreement shall be in writing and delivered to each party by facsimile, certified letter (return receipt requested) or by personal delivery to the following addresses:

(i) If to PRINCIPAL, to the persons and addresses on the List of Authorized Persons;

PRINCIPAL: NUBANK

Departamentos Jurídico e de Relação com Investidores (Legal and Investor Relations Departments)

Rua Capote Valente, n° 39 – Pinheiros

CEP: 05409-000

São Paulo, SP, Brasil.

Phone: 0-55-11-4020-0185

Facsimile: 0-55-11-4020-0185

emails: [email protected]/[email protected]/ [email protected]

(ii) If to BRADESCO:

BANCO BRADESCO S.A.

Núcleo Cidade de Deus—Prédio Amarelo, 1° andar, Vila Yara, s/n°

CEP: 06029-900.

Osasco, São Paulo, Brasil.

 

Phone: 0-55-11-3684-4522

Facsimile: 0-55-11-3684-5645

e-mails: [email protected]/[email protected]/ dac.escrituraç[email protected]

SECTION TEN

SERVICE TO BDR HOLDERS

10.1. The service to BDR holders or their legal representatives shall be made through BRADESCO branches, distributed throughout the national territory, for the purpose of providing position information, earnings, other information and process registration requests related to BDRs issued by PRINCIPAL, and BDR holders or their legal representatives shall present themselves with identification and representation documents.

SECTION ELEVEN

CONFIDENTIALITY

11.1. The Parties, their officers, employees and representatives on any account shall maintain confidentiality regarding all information to which they have access as a result of the execution of this Agreement.

11.2. For the purposes of this Agreement, all documents, general, commercial or operational information, assessments, reviews, interpretations or other data that have not been published lawfully and without breach of this Agreement, regarding the Parties, their customers and individuals or legal entities with which they maintain a relationship, are considered confidential, jointly or individually referred to as confidential information.

11.3. The following are not considered confidential information:

(a) information that is or becomes public domain without the interference of either Party; or

(b) information that is known to either Party or its representatives before the beginning of the negotiations that resulted in this Agreement.

11.4. The Parties may only reveal any confidential information to a third party upon prior written authorization from the party that owns the information.

11.5. If either Party, by determination of a public authority or as a result of a court order, has to reveal any confidential information, it shall proceed as follows:

(a) shall immediately inform the Party, which owns the confidential information, regarding the order of the public authority or the judge, unless the information contains a prohibition in this regard; and

(b) shall provide all the information and subsidies that may be necessary so that the holder of the confidential information, at its discretion, may defend itself against the disclosure of any confidential information.

11.6. It is forbidden the use of the confidential information for any purpose other than:

(a) the normal performance of this Agreement; or

(b) the maintenance of records and files obtained by legislation.

11.7. In addition to constituting a breach of contract, breach of the confidentiality duty, including that committed by its employees, officers and representatives on any account, compels the infringing Party to pay indemnity for the damage caused to the Party that owns the information, which shall be duly assessed by final and non-appealable court decision.

 

11.8. The payment of indemnity does not release the Parties, their officers, employees and representatives on any account from continuing to comply, as appropriate, with the confidentiality duty, as set forth in this Agreement.

11.9. Whatever the cause of dissolution of this Agreement, the Parties shall continue to be bound, by themselves and their officers, employees and representatives on any account, to observe the confidentiality duty, including for a period of two (2) years after its termination, under penalty to indemnify the damage caused.

SECTION TWELVE

GENERAL PROVISIONS

12.1. The omission or forbearance of the Parties in demanding strict compliance with the terms and conditions of this Agreement shall not constitute novation or waiver, nor shall it affect their rights, which may be exercised at any time.

12.2. This Agreement is executed in favor of all Beneficiaries, pursuant to the provisions of article 436 of the Brazilian Civil Code, and Parties are prohibited from innovating under the terms of article 438 of the Brazilian Civil Code.

12.3. This Agreement may be freely amended by means of an instrument signed by PRINCIPAL and BRADESCO, without consent of the BDR holders. Any inclusions, exclusions or changes to existing sections shall be recorded in an amendment duly signed by the Parties, which shall become an integral part of this Agreement.

12.3.1. Any amendment that substantially impairs any right of the Beneficiaries shall only enter into force with respect to outstanding BDRs after the expiration of a period of thirty (30) days counted as from the date on which such amendment is notified to the Beneficiaries holding outstanding BDRs through written communication sent to each BDR holder, at the addresses included in the BDRs registry book, at the respective brokerage firms or custody agents.

12.3.2. The consent of the Beneficiaries, in relation to any amendment that substantially impairs any of their rights, shall be presumed if, after the expiration of the period of thirty (30) days mentioned above, these Beneficiaries continue to hold BDRs.

12.3.3. The Parties agrees to make an amendment to this Agreement within one (1) business day after the definition of the Proportion of BDRs’ Backing by PRINCIPAL’s relevant bodies, which shall take place before the launch of the initial public offering.

12.4. This Agreement shall be governed by the laws of the Federative Republic of Brazil. If BRADESCO deems that PRINCIPAL’s and its Beneficiaries’ instructions are in disagreement with such legislation, it shall immediately notify PRINCIPAL or the Beneficiaries of such understanding.

12.5. It is hereby established and defined for both Parties, which irrevocably and irreversibly execute this instrument, the absence of any liability or guarantee of BRADESCO for the payment of any event subject matter of this Agreement to the Beneficiaries, it being solely responsible for the performance of the acts and procedures set forth in this Agreement, in accordance with the orders given by PRINCIPAL, and the latter shall defend, exempt and compensate BRADESCO against such liabilities or guarantees, except in cases where BRADESCO has acted with fault or intentional misconduct.

12.6. The Parties, by themselves, their employees or agents, under the penalties of the Law, shall maintain the most complete and absolute confidentiality of any data, materials, details, information, documents, technical and commercial product specifications of each other, and/or of third parties, that they may have knowledge of or access to, or that may be entrusted to them, whether or not related to the provision of the service subject matter of this Agreement. Failure to comply with the provisions of this section shall result in legal penalties, the offender and whoever else caused the violation being accountable, in civil and criminal level, except when the disclosure of such information is required by law, court order or supervisory authority, in which case, the fact shall be immediately communicated to the interested Party.

 

12.7. The Parties shall not maintain any employment relationship with managers, representatives, employees and/or agents of each other, nor shall any form of association be established between them, therefore each of them shall be particularly and exclusively responsible for the fulfillment of their respective labor, social, social security and occupational obligations according to the subject matter of this Agreement or any amendments hereof, even if there is legislation, case law and/or any other court or out-of-court circumstance that may cause a different construction.

12.8. Each Party is prohibited from using the terms of this Agreement, as well as each other’s trademarks, names and patents, whether in marketing or advertising, without the express prior written authorization of the other, and the aggrieved Party may choose, at its sole discretion, to consider this Agreement automatically terminated, observing the effects of item 8.11, in addition to the infringing Party responding for the application of losses and damages that are assessed, as provided for in the current legislation.

12.9. The Parties hereby irrevocably and irreversibly assume full responsibility for any losses and personal injuries, pain and suffering or property damages that may be suffered and duly proven by the other Party and/or a third party, due to the provision of the service herein agreed, arising from the fault or intentional misconduct of the other Party, its employees or agents.

12.10. Neither Party may assign or transfer, in whole or in part, to third parties, the rights and obligations arising from this Agreement, without the prior and express written consent of the other Party.

12.11. PRINCIPAL hereby acknowledges that the service contracted herein is subject to laws, rules, customs, procedures and practices, which may change from time to time. In the event of a change in legislation that, in whole or in part, limits the provision of the service contracted herein, BRADESCO shall request from PRINCIPAL new instructions as to the procedures to be taken to fulfill the obligations assumed under this Agreement.

12.12. The Parties agree to observe the provisions and obligations of this Agreement, its Exhibit and applicable law, and PRINCIPAL shall be responsible for verifying the responsibilities regarding the issue and distribution of the shares issued by it on behalf of the relevant holders and all willful events, and BRADESCO for the provision of the services contracted herein.

12.13. Acts of God and force majeure are excluded from the responsibility of the Parties, pursuant to article 393 of the Brazilian Civil Code.

12.14. All processes described in Section Three shall be reviewed by BRADESCO and, if applicable, additional documents may be required from the parties involved for proper registration, as well as the processes are subject to confirmation of the authenticity of the order given, for its release, and if all requirements are not met in accordance with the legislation in force at the time the registration takes place and also that allow the correct identification of the Beneficiary, BRADESCO may return the process to the origin, informing the reason for such refusal.

12.15. The Parties represent that they were previously presented with a copy of this Agreement, containing in full all its sections, which has been read and understood in its entirety, agreeing with its express terms.

12.16. The Parties agree, for themselves and their successors, to faithfully comply with this Agreement.

12.17. Taxes due as a direct or indirect result of this Agreement, or its performance, constitute taxpayer’s liability, as defined in the tax legislation.

 

12.18. Except as otherwise provided in this Agreement and/or the applicable legislation, all costs and expenses, including, but not limited to, attorneys’, financial advisors’ and auditors’ fees and expenses, incurred in connection with this Agreement and the transactions contemplated herein, shall be paid by the Party that incurs these costs and expenses.

12.19. Under no circumstances shall BRADESCO be held responsible for any acts and/or activities described in this Agreement, which have been performed by third parties retained by PRINCIPAL.

12.20. Excluding the obligations imposed on BRADESCO in this Agreement, the provisions of the Brazilian Civil Code in force and other legislation applicable to this Agreement, BRADESCO shall be held harmless from any other liability arising from acts performed with fault or intentional misconduct by PRINCIPAL, its managers, representatives and employees, except in the case of clear fault related to BRADESCO’s responsibilities set forth in this Agreement, duly proven intentional misconduct or bad faith.

12.21. Each of the Parties warrants to the other Party that: (i) it is vested with all powers and authority to execute and fulfill the obligations set forth herein and carry out the transactions contemplated herein; and (ii) the execution and performance of this Agreement do not result in violation of any third-party rights, applicable law or regulation, neither in violation, non-compliance or default of any agreement, instrument or document of which it is a party or by which has any of its properties bound and/or affected, nor in the need to obtain any authorization under any agreement, instrument or document of which it is a party or by which it has any of its properties bound and/or affected.

12.22. This Agreement constitutes the entire understanding and agreement between the Parties and supersedes all prior oral or written warrants, conditions, promises, representations, contracts and agreements regarding the subject matter of this Agreement.

12.23. The Parties jointly and expressly represent that this Agreement was executed observing the principles of honesty and good faith, by free, conscious and firm manifestation of intent and in perfect equity.

12.24. If, as a result of any unappealable court decision, any provision or term of this Agreement is considered null or void, such nullity or voidability shall not affect the validity of the other sections of this Agreement not affected by the declaration of nullity or annulment.

12.25. The Parties represent and mutually warrant, including before their providers of goods and services, that:

a) carry out their activities in accordance with the current legislation applicable to them, and that they hold the necessary approvals for the execution of this Agreement and for the fulfillment of the obligations set forth herein;

b) do not use illegal work and undertake not to use work practices similar to slavery, or child labor, except for the latter as an apprentice, with due regard for the provisions of the Consolidated Labor Laws, whether directly or indirectly, through their respective providers of goods and services;

c) do not employ minors up to 18-yo, including minor apprentices, in places that are harmful to their formation, physical, psychological, moral and social development, as well as in dangerous or unhealthy places and services, at times that do not allow school attendance and also at nighttime, considering this the period between ten p.m. (22:00) and five a.m. (5:00);

d) do not use practices of negative discrimination and limiting access to the employment relationship or its maintenance, such as, but not limited to, reasons of sex, origin, race, color, physical condition, religion, marital status, age, family situation or pregnancy status;

 

e) undertake to protect and preserve the environment, as well as to prevent and eradicate practices harmful to the environment, providing their services in compliance with current legislation regarding the National Policy on the Environment and Environmental Crimes (Política Nacional do Meio Ambiente e dos Crimes Ambientais), as well as legal, normative and administrative acts relating to the environmental and related area, issued by the Federal, State and Municipal levels.

12.26. PRINCIPAL, as represented herein, represents to be aware of the provisions of BRADESCO Organization’s Code of Ethical Conduct, the copy of which is available on the website www.bradesco.com.br/ri, link Corporate Governance / Codes of Ethics, as well as the commitment to comply with it and cause its employees or agents to comply with it.

12.27. The Parties undertake to take the necessary and appropriate measures, as provided for in BACEN Circular No. 2,852/98, in CVM Instruction No. 617/19 and subsequent amendments, in order to prevent and fight activities related to crimes of “money laundering” or concealment of assets, rights and amounts identified by Law No. 9,613/98.

12.28. The Parties irrevocably and irreversibly represent to each other that their controllers, directors, managers and employees know and fully comply with the provisions of the national or international laws, regulations and normative provisions addressing anti-corruption and bribery, including demanding the same from its service providers, subcontractors and agents.

12.28.1. The Parties mutually warrant that they shall refrain from any improper, irregular or illegal conduct and that they shall not take any action, one on behalf of the other, and/or that they shall not perform any act that may directly or indirectly favor each other or any of the companies of their respective economic conglomerates, contrary to applicable laws in Brazil or abroad.

12.28.2. If any of the Parties becomes involved in any situation related to corruption or bribery, as a result of an action taken by the other Party or its controllers, directors, managers, employees and service providers, including its subcontractors and agents, the Party causing such situation undertakes to assume the respective burden, including as to submit the documents that may assist the other Party in its defense.

12.28.3. The Parties represent and warrant that, in relation to the obligations directly or indirectly connected to the activities established in this instrument, any situation involving public or private active corruption and/or bribery, or any other act offering an improper advantage in exchange for formalizing the relevant contracts has not occurred and shall not occur, and the legal provisions applicable to this type of conduct in force in the jurisdiction in which the Parties are incorporated and in the jurisdictions in which such Parties operate shall be observed.

12.29. The Parties undertake to comply with all applicable legislation on information security, privacy and data protection, including (whenever and when applicable) the Federal Constitution, the Consumer Protection Code, the Civil Code, the Brazilian Civil Rights Framework for the Internet (Federal Law No. 12,965/2014), its regulatory decree (Decree No. 8,771/2016), the General Data Protection Law (Federal Law No. 13,709/2018), and other sector or general rules on the subject, undertaking only to process the data mentioned and/or in the forms set forth this instrument; upon express instructions from the data controller; or with due legal basis, without transferring them to any third party, unless expressly authorized by the latter or any other instrument that binds them.

 

12.30. The Courts of the Judicial District of the Capital City of the State of São Paulo are elected to settle any matters arising from this Agreement.

(Space intentionally left blank.)

 

In witness whereof, the Parties execute this Agreement in two (2) counterparts of equal content and for a single effect.

Osasco, SP, August 31, 2021.

BANCO BRADESCO S.A.

/s/ Francisco Borges Neto

Francisco Borges Neto

Executive Superintendent

/José Donizetti De Oliveira

JOSÉ DONIZETTI DE OLIVEIRA

Business Management Manager

08/31/2021

NU HOLDINGS LTD.

/s/ David Velez

David Velez

CEO

WITNESSES:

 

1. /s/ Marcio José Gomes Faria Name: MARCIO JOSÉ GOMES FARIA Identity Card (RG) No.: 275536336 Individual Taxpayer’s Register of the Ministry of Economy (CPF/ME) No.: 14792758831		2. /s/ Aloma Miranda Name: Aloma Miranda Identity Card (RG) No.: 12848544-26 Individual Taxpayer’s Register of the Ministry of Economy (CPF/ME) No.: 124571907-62

 

EXHIBIT I – SERVICE PROVISION COMMISSION

For the provision of services of BDR Issuing Depositary Bank, we present the following commission structure.

1. INITIAL CONTRACTING COST

When contracting the provision of services of BDR Issuing Depositary Bank, comprising the processes of implementation, participation in the registrations of the BDR Program with CVM and B3 and compliance with the operating procedures, the issuer shall be charged a single cost of Fifty-Five thousand reais (BRL 55,000.00).

This amount shall be charged from the moment PRINCIPAL issues the Shares and makes them available, through the Custodian, so that BRADESCO may issue the BDRs. No amount shall be charged to PRINCIPAL until the latter obtains the registration of the initial public offering of the BDRs with CVM.

2. MAINTENANCE COST OF THE BDR PROGRAM AND REGISTERED INVESTORS.

2.1. Maintenance:

By way of maintenance, the issuing company shall be charged, for the provision of services of BDR Issuing Depositary Bank (Asset Bookkeeping), the monthly amount according to blocks of the number of investors in NUBANK base, always calculated on the last day of the month, as shown in the table below:

 

		BLOCKS				ACCRUED
		Investors		BRL/month		Investors		BRL/month
Block 1		500,000		58,500.00		500,000		58,500.00
Block 2		500,000		50,000.00		1,000,000		108,500.00
Block 3		1,000,000		49,000.00		2,000,000		157,500.00
Block 4		1,000,000		40,500.00		3,000,000		198,000.00
Block 5		2,000,000		49,500.00		5,000,000		247,500.00
Block 6		2,000,000		40,500.00		7,000,000		288,000.00

2.2. VARIABLE COST

If used, the company shall be charged the costs of the services as shown in the table below:

 

SERVICES		BRL
WILLFUL EVENTS (DIVIDENDS, JSCP (INTEREST ON NET EQUITY), STOCK DIVIDEND, STOCK SPLITS, REVERSE SPLIT, SUBSCRIPTION, REDEMPTION, ETC.)
Calculation of Willful Events (per willful calculation)		EXEMPT
PAYMENT MADE (per shareholder and type of payment)
Bradesco Account Holder		1.50
Account Holder of other Banks (not including the Central Bank rate)		2.50
At Bradesco Branches		2.50

 

 

OPERATIONS (per registration)   Note: Bradesco does not charge for operations made at B3 (buy/sell).
Approved Event (Stock Dividend, Stock Split, Reverse Split, Subscription, Redemption, Cancellation, Merger, Spin-off and other resolutions)		EXEMPT
Registration of Liens (Connections and Releases)		3.00
Custody Operation (CBLC (Brazilian Settlement and Custody Company)/CETIP (Center of Custody and Financial Settlement of Securities) Deposit and Withdrawal)		3.00
Transfer between Accounts (Causa Mortis, Off-Board, Gift, Account Grouping, Court Order, etc.)		3.00
Change of Register		3.00
ISSUE OF NOTICES (per issued unit, not including postage cost)
Credit and Receipt Notices, Proof of JSCP-IN SRF 41, Earnings Statements, Stock Operation Statement and Subscription Instrument, Business Reply Mail to Investors (surveys and information request).		If any, it shall be agreed with PRINCIPAL
SUBSCRIPTION (per effective instrument)		4.00
DISTANCE VOTE
Individuals – unit cost per vote cast, only Bradesco Bookkeeper Bradesco Legal Entities – unit cost per vote cast, only Bradesco Bookkeeper		3.00 10.00
SPECIFIC SERVICES/REPORTS REQUESTED		Upon consultation

Due to the costs described above, we shall provide to the companies the following services:

• Service to Investors throughout Bradesco’s network of branches;

• Maintenance of investor database, documentation of records made by the investors, filing and microfilming of documents used;

• Preparation and availability of management reports for the base of active Investors, such as: Register, Positions, Operations, Paid Events (dividends / JSCP), Non-Paid Events (Stock Dividend, Stock Split, Subscription) and Investors in custody at CBLC and custody operations occurred at CBLC in the “format” and “frequency” previously established by the company;

• Access to Bradesco’s Book-Entry Assets System (via internet) to obtain information on Investors (Stock position, history, operations, payments made and/or pending DIV./JSCP, List of Investors), considering the position in Bradesco’s + B3’s Books. The system also allows the electronic generation of reports in TXT or EXCEL format;

• To cover the payment of willful events (Own JSC, Dividends and others), the issuing company may credit the amount to a current account, in reserve at Bradesco, until 10:00 a.m., on the day of the actual payment of the event;

• Forms for Bookkeeping Processes (Change of Register, Transfer Order, Information Request and Research);

• Inclusion of your company’s “Logo” in operation statements.

 

2.3. TRANSFER OF COSTS

Bradesco shall transfer the following costs to the company, when they occur, which are not included in the items above:

Postage Service Fee:

Fee charged by the service provider for posting documents “Correios” (Post Office), when issuing statements, notices and communications to the shareholders, at the amounts charged on the date on which the documents are sent.

Fees and Emoluments:

Fee charged by the Board of Commerce or Registry Office responsible for registering the book, at the amount charged on the date on which the registration of the Book occurs.

DOC / TED Fee:

Issue fee of Credit Transfer Document – DOC or Electronic Funds Transfer – TED charged by the Central Bank of Brazil in the payment of events to the shareholders that are account holders of other banks, at the amounts charged on the date on which the payments occur.

3. ISSUER’S EXPENSES IN BDRS.

3.1. ISSUER’S EXPENSES ON CORPORATE EVENTS IN BDRs

Specifically for the operations of issue and/or cancellation of BDRs arising from Corporate Events exclusively involving Nubank, such as: Offers, Stock Dividend, Stock Split, Reverse Split, Spin-off, Merger, Consolidation, BDR Repurchase and Cancellation, involving vehicles and/or individuals who/which directly or indirectly participate in Nubank’s control block, the unit values shall be applied in the operations of issue or cancellation of BDRs, according to the range of the number of BDRs to be issued and/or canceled, as follows:

 

RANGE OF THE NUMBER OF BDRS		VALUE PER BDR (BRL)		MAXIMUM LIMIT PER RANGE (IN BRL)
From 0 to 100,000,000		0.0015		150,000.00
From 100,000,001 to 250,000,000		0.0008		200,000.00
From 250,000,001 to 500,000,000		0.0006		300,000.00
From 500,000,001 to 1,000,000,000		0.0004		400,000.00
Above 1,000,000,001		0.0002		500,000.00

3.2. EXPENSES WITH THE CUSTODIAN BANK BACKING BDRs

All expenses related to the services of the Custodian Bank for the maintenance in custody of the Shares backing issued BDRs shall be PRINCIPAL’s responsibility.

4. EXPENSES OF BDR BENEFICIARIES.

Fees to be charged to BDR Beneficiaries by the Depositary

 

 

SERVICES		VALUES IN BRL
1. Issue and Cancellation per BDR (Operation) *		0.10
2. Transfer of BRDs’ Ownership Off-Board (by over-the-counter transfer process, causa mortis, court order, gift and others).		50.00

 

*	Issue and Cancellation of BDRs (operation):

For BDR balance operation processes carried out by the BDR holders through BDR issue/cancellation requests, we shall charge the compensation fee per BDR issued and/or canceled in the amount of ten centavos (BRL 0.10), to be paid to Bradesco by the beneficiaries of the BDRs.

5. COST OF SPECIFIC SERVICES

The company shall be charged, upon submission and approval of a budget, when requested, for the development and/or preparation of specific reports, which shall be carried out by Bradesco and submitted for approval by the company.

6. CHARGE FOR THE SERVICE PROVISION

The charge is made on the fifteenth (15th) day of each month, or on the first following business day, following the month of the provision of Issuing and Depositary Bank services, by debiting company’s current account, FX remittance, payment through DOC or TED, or through a Bank-issued invoice by PRINCIPAL on behalf of BRADESCO, starting after implementing the shareholders in Bradesco’s Asset Bookkeeping System.

7. UPDATE OF SERVICE PROVISION COSTS

The costs shall be annually updated by IGPM – FGV (General Market Price Index – Getúlio Vargas Foundation) and, in case of extinction, we shall adopt the substitute index contained in the Law.

8. PENALTIES

8.1. The default, by either Party, of any of the payment obligations set forth in this Agreement shall characterize, by operation of law, regardless of any notice or notification, the arrears of the defaulting Party, subjecting it to the payment of the following arrears charges: (i) interest for late payment of one percent (1%) per month, calculated pro rata temporis from the date on which the payment was due until the date of its actual payment; (ii) conventional non-compensatory fine of two percent (2%), calculated on the relevant amount due; and (iii) in any event, the amount due shall be adjusted for inflation from the date of its original maturity based on the accrued index of variation of IPCA (Broad Consumer Price Index) – IBGE (Brazilian Institute of Geography and Statistics), as released by Fundação Getúlio Vargas or another that may replace it.

8.2. Failure to comply with any condition set forth in this Agreement by either Party, which does not fall under Section 10.1 above, and provided that it is duly proven in a final and unappealable court decision, shall compel the infringing Party to respond for any losses and/or damages resulting from intentional misconduct, fraud and/or fault, being also responsible for the fines, adjustments for inflation and interest arising therefrom, calculated as provided for in the legislation in force.

8.3. No delays arising from system and/or communication failures between the Parties shall be penalized, except when caused by negligence or intentional misconduct, which, nevertheless, shall endeavor to immediately correct such failures.

 

 

Exhibit 4.2

 

  

NU HOLDINGS LTD.

REGISTRATION RIGHTS AGREEMENT

November 18, 2021

 

 

REGISTRATION RIGHTS AGREEMENT

THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made on November 18, 2021 by and among Nu Holdings Ltd., a Cayman Islands exempted company (the “Company”) and the shareholders listed on Schedule A hereto, each of which is herein referred to as a “Shareholder.”

WHEREAS, the Company and certain of the Shareholders entered into that certain Investors’ Rights Agreement dated June 24, 2016, which was amended and restated pursuant to that certain Amended and Restated Investors’ Rights Agreement dated November 24, 2016 by and among the Company and certain investors, which was further amended and restated pursuant to that certain Second Amended and Restated Investors’ Rights Agreement dated February 15, 2018 by and among the Company and certain investors, which was further amended and restated pursuant to that certain Third Amended and Restated Investors’ Rights Agreement dated September 28, 2018 by and among the Company and certain investors, which was further amended and restated pursuant to that certain Fourth Amended and Restated Investors’ Rights Agreement dated July 31, 2019 by and among the Company and certain investors, which was further amended and restated pursuant to that certain Fifth Amended and Restated Investors’ Rights Agreement dated December 30, 2019 by and among the Company and certain investors, which was further amended and restated pursuant to that certain Sixth Amended and Restated Investors’ Rights Agreement dated June 18, 2020 by and among the Company and certain investors, which was further amended and restated pursuant to that certain Seventh Amended and Restated Investors’ Rights Agreement dated February 3, 2021 by and among the Company and certain investors, and which was further amended and restated pursuant to that certain Eighth Amended and Restated Investors’ Rights Agreement dated June 11, 2021 by and among the Company and certain investors (such Eighth Amended and Restated Investors’ Rights Agreement, the “Prior Agreement”);

WHEREAS, Section 1 and Section 3 of the Prior Agreement may be amended with the written consent of the Company and the holders of a majority of the Registrable Securities (such holders, the “Requisite Parties”);

WHEREAS, the Company is contemplating an underwritten initial public offering of its Class A Ordinary Shares (as defined below) on the New York Stock Exchange (the “IPO”), and immediately prior to the consummation of the IPO (provided that such IPO is a “Qualified Public Offering,” as such term is defined in the Prior Agreement), Section 2 of the Prior Agreement shall terminate and be of no further force or effect; and

WHEREAS, in connection with the IPO, the Company and the undersigned Shareholders, comprising the Requisite Parties, wish to amend and restate the Prior Agreement in order to accept the rights and covenants hereof in lieu of their rights and covenants under the Prior Agreement, and intend for this Agreement to become effective immediately following the termination of Section 2 of the Prior Agreement in accordance with its terms.

 

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NOW, THEREFORE, in consideration of the foregoing premises and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the undersigned Shareholders agree that the Prior Agreement is hereby amended and restated in its entirety by this Agreement, and the parties further agree as follows:

ARTICLE 1

DEFINITIONS

Section 1.01. For purposes of this Agreement:

(a) The term “1934 Act” means the United States Securities Exchange Act of 1934, as amended.

(b) The term “Act” means the United States Securities Act of 1933, as amended.

(c) The term “Affiliate” means, with respect to any Person, any other Person who or which, directly or indirectly, Controls, is Controlled by, or is under common Control with such specified Person, including, without limitation, any general partner, officer, director or manager of such Person and any venture capital, other investment or managed fund or registered investment company now or hereafter existing that is Controlled by one or more general partners or managing members of, or is under common investment management with, such Person. The term “Control” (including, with correlative meanings, the terms “Controlling,” “Controlled by” and “under common Control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this Agreement, to be “affiliated” or “Affiliated” with a Person means to be an Affiliate (as defined in this Section 1.01(c)) of such Person. Notwithstanding the foregoing, (i) with respect to Tencent, the term “Affiliate” shall be deemed to refer only to each Person whose financial information or results are, or should be (under applicable accounting rules), consolidated in the consolidated financial statements of Tencent Holdings Limited (or its successor); and (ii) for the avoidance of doubt, it is acknowledged and agreed that non-Controlling investments by any Shareholder as a limited partner in investment funds that are not managed, advised or Controlled, directly or indirectly, by such Shareholder or its Affiliates shall not cause such investment funds to be considered Affiliates of such Shareholder for purposes hereof.

(d) The term “Articles” means the Company’s Twelfth Amended and Restated Memorandum and Articles of Association, as amended and/or restated from time to time.

(e) The term “Board” means the Company’s Board of Directors, as constituted from time to time.

 

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(f) The term “Business Day” means any day on which banks are not required or authorized by law to close in the City of New York, New York, USA or in São Paulo, State of São Paulo, Brazil.

(g) The term “Class A Ordinary Shares” has the meaning set forth in the Articles.

(h) The term “Class B Ordinary Shares” has the meaning set forth in the Articles.

(i) The terms “Dollars” and “US$” mean United States Dollars.

(j) The term “Free Writing Prospectus” means a free-writing prospectus, as defined in Rule 405 under the Act.

(k) The terms “Form F-3” and “Form S-3” mean such forms under the Act as in effect on the date hereof or any registration form under the Act subsequently adopted by the SEC that permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC.

(l) The term “Holder” means any person owning Registrable Securities or any assignee thereof in accordance with Section 2.11 hereof.

(m) The term “Ordinary Shares” has the meaning set forth in the Articles.

(n) The term “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

(o) The terms “register,” “registered,” and “registration” mean a registration effected by preparing and filing a registration statement or similar document in compliance with the Act, and the declaration or ordering of effectiveness of such registration statement or document.

(p) The term “Registrable Securities” means the Class A Ordinary Shares that are beneficially owned by the Shareholders (or any assignee thereof in accordance with Section 2.11 hereof) from time to time, whether or not held immediately following the IPO, and any securities issued or issuable directly or indirectly with respect to, in exchange for, upon the conversion of or in replacement of such Class A Ordinary Shares, whether by way of a dividend or distribution or stock split, in connection with a combination of shares, recapitalization, merger, consolidation, exchange or other reorganization or otherwise (including, for the avoidance of doubt, the Class A Ordinary Shares issuable upon conversion of any Class B Ordinary Shares and/or preferred shares of the Company that are beneficially owned by the Shareholders in accordance with the Articles and the terms of such securities); provided, however, that any such securities shall cease to be Registrable Securities if (i) they have been sold to the public pursuant to a registration statement or an offering conducted pursuant to Rule 144, (ii) they have been transferred by a Holder in a transaction in which the Holder’s rights under this Agreement are not, or cannot be, assigned, (iii) the registration rights applicable to such securities have terminated pursuant to Section 2.15 hereof or (iv) they cease to be outstanding.

 

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(q) The term “Rule 144” means Rule 144 under the Act.

(r) The term “SEC” means the Securities and Exchange Commission.

(s) With respect to “Subsidiaries” or “subsidiaries” of the Company, the term “Subsidiary” or “subsidiary” has the meaning ascribed to the term “Subsidiary” in the Articles.

(t) The term “Tencent” means Tencent Cloud Europe B.V. and its permitted assigns and successors.

ARTICLE 2

REGISTRATION RIGHTS

Section 2.01. Registration Rights. The Company covenants and agrees that the Holders shall be entitled to the following rights with respect to any public offering of Class A Ordinary Shares in the United States, and to analogous or equivalent rights with respect to any offering of Class A Ordinary Shares in any other jurisdiction pursuant to which the Company undertakes to offer publicly or list such securities for trading on a recognized securities exchange (and, with respect to any such offering of Class A Ordinary Shares in any other jurisdiction, references in this Agreement to laws of the United States shall be deemed to be references to any analogous or equivalent provisions of the laws of such other jurisdiction). The Holders shall be entitled to the same rights set forth in this Article 2, as applicable, in respect of the shares of any entity directly or indirectly controlled by the Company (in which case, the procedures established in this Agreement in respect of the Company and the Class A Ordinary Shares shall apply to such entity and its shares, mutatis mutandis).

Section 2.02. Request for Registration.

(a) Subject to the conditions of this Section 2.02, if the Company shall receive, at any time after six (6) months have elapsed following the effective date of the IPO, a written request from Shareholders holding at least a majority of the Registrable Securities that are then outstanding and held by the Shareholders (for purposes of this Section 2.02, the “Initiating Holders”) that the Company file a registration statement under the Act covering the registration of Registrable Securities with an anticipated aggregate offering price of at least US$50,000,000, then the Company shall, within twenty (20) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.02, use all commercially reasonable efforts to effect, as soon as practicable, the registration under the Act of all Registrable Securities that the Holders request to be registered in a written request received by the Company within twenty (20) days of the mailing of the Company’s notice pursuant to this Section 2.02(a).

 

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(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Section 2.02(a) and the Company shall include such information in the written notice referred to in Section 2.02(a). In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by such Holder and a majority in interest of the Initiating Holders) to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders (which underwriter or underwriters shall be reasonably acceptable to the Company). Notwithstanding any other provision of this Section 2.02, if the underwriter(s) advises the Company that marketing factors require a limitation on the number of securities underwritten (including Registrable Securities), then the Company shall so advise the Holders of Registrable Securities that would otherwise be underwritten pursuant thereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated to the Holders of such Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders (including the Initiating Holders). In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.

(c) Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Section 2.02:

(i) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act; or

(ii) after the Company has effected two (2) registrations pursuant to this Section 2.02, and such registrations have been declared or ordered effective; or

(iii) during the period starting with the date that is sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on the date that is one hundred and eighty (180) days following the effective date of, a Company-initiated registration subject to Section 2.03 below; provided that the Company is actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective; or

(iv) if the Initiating Holders propose to dispose of Registrable Securities that may be registered on Form F-3 or Form S-3 pursuant to Section 2.04 hereof; or

 

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(v) if the Company shall furnish to Holders requesting a registration statement pursuant to this Section 2.02 a certificate signed by the Chairman of the Board, stating that in the good faith judgment of the Board it would be seriously detrimental to the Company and its shareholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right shall be exercised by the Company not more than once in any twelve (12)-month period; and provided further that the Company shall not register any securities for the account of itself or any other shareholder during such ninety (90)-day period (other than a registration relating solely to the sale of securities of participants in a Company share plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Ordinary Shares being registered are Ordinary Shares issuable upon conversion of debt securities that are also being registered).

Section 2.03. Company Registration.

(a) If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for shareholders other than the Holders) any of its Ordinary Shares or other equity securities under the Act in connection with the public offering of such securities (other than a registration relating solely to the sale of securities of participants in a Company share plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, a registration in which the only Ordinary Shares being registered are Ordinary Shares issuable upon conversion of debt securities that are also being registered or a registration on Form F-1 relating solely to the sale of securities upon the expiration of any lock-up period applicable to such securities in accordance with the terms of a lock-up agreement entered into with the underwriters of the IPO), the Company shall, at such time, promptly give each Holder written notice of such registration. Upon the written request of each Holder given within twenty (20) days after the mailing of such notice by the Company in accordance with Section 3.05, the Company shall, subject to the provisions of Section 2.03(c), use all commercially reasonable efforts to cause to be registered under the Act all of the Registrable Securities that each such Holder requests to be registered.

(b) The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2.03 prior to the effectiveness of such registration whether or not any Holder has elected to include securities in such registration. The expenses of such withdrawn registration shall be borne by the Company in accordance with Section Section 2.07 hereof.

 

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(c) In connection with any public offering of Ordinary Shares or other Company equity securities by the Company involving an underwriting, the Company shall not be required under this Section 2.03 to include any of a Holder’s securities in such underwriting unless such Holder accepts the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company (or by other persons entitled to select the underwriters) and enter into an underwriting agreement in customary form with such underwriters, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering, exceeds the amount of securities to be sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, that the underwriters determine in their sole discretion will not jeopardize the success of the offering. In no event shall any Registrable Securities be excluded from such offering unless all other shareholders’ securities have been first excluded. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be apportioned pro rata among the selling Holders based on the number of Registrable Securities held by all selling Holders or in such other proportions as shall mutually be agreed to by all such selling Holders. Notwithstanding the foregoing, in no event shall the amount of Registrable Securities of the selling Holders included in the offering be reduced below thirty percent (30%) of the total amount of securities included in such offering. For purposes of the preceding sentence concerning apportionment, for any selling shareholder that is a Holder of Registrable Securities and that is a venture capital fund, partnership or corporation, the affiliated venture capital funds, partners, members, retired partners and shareholders of such Holder, or the estates and family members of any such partners, members and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals.

Section 2.04. Form F-3 or Form S-3 Registration. In case the Company shall receive from Shareholders holding at least a majority of the Registrable Securities that are then outstanding and held by the Shareholders (for purposes of this Section 2.04, the “Initiating Holders”) a written request or requests that the Company effect a registration on Form F-3 or Form S-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company shall:

(a) promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders; and

 

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(b) use all commercially reasonable efforts to effect, as soon as practicable, such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company, provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance, pursuant to this Section 2.04:

(i) if Form F-3 or Form S-3 is not available for such offering by the Holders;

(ii) if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters’ discounts or commissions) of less than US$5,000,000;

(iii) if the Company shall furnish to Holders requesting registration pursuant to this Section 2.04 a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board it would be seriously detrimental to the Company and its shareholders for such registration to be effected at such time, in which event the Company shall have the right to defer such registration for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided that such right may be exercised by the Company not more than once in any twelve (12)-month period; and provided further that the Company shall not register any securities for the account of itself or any other shareholder during such ninety (90)-day period (other than a registration relating solely to the sale of securities of participants in a Company share plan, a registration relating to a corporate reorganization or transaction under Rule 145 of the Act, a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities, or a registration in which the only Ordinary Shares being registered are Ordinary Shares issuable upon conversion of debt securities that are also being registered);

(iv) if the Company has, within the twelve (12) month period preceding the date of such request, already effected one (1) registration on Form F-3 or Form S-3 for the Holders pursuant to this Section 2.04;

(v) in the circumstances described in Section 2.02(c)(iii) hereof; or

(vi) in any particular jurisdiction in which the Company would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act.

 

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(c) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.04 and the Company shall include such information in the written notice referred to in Section 2.04(a). The provisions of Section 2.02(b) shall be applicable to such request (with the substitution of Section 2.04 for references to Section 2.02).

(d) Subject to the foregoing, the Company shall file a registration statement covering the Registrable Securities as soon as practicable after receipt of the request or requests of the Initiating Holders. Registrations effected pursuant to this Section 2.04 shall not be counted as requests for registration pursuant to Section 2.02.

Section 2.05. Obligations of the Company. Whenever required under this Section 2.05 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

(a) prepare and file with the SEC a registration statement with respect to such Registrable Securities and use all commercially reasonable efforts to cause such registration statement to become effective, and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for a period of up to one hundred twenty (120) days or, if earlier, until the distribution contemplated in the registration statement has been completed;

(b) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such registration statement;

(c) furnish to the Holders such number of copies of a prospectus, including a preliminary prospectus and a Free Writing Prospectus, in conformity with the requirements of the Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them;

(d) use all commercially reasonable efforts to register and qualify the Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as shall be reasonably requested by the Holders, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required under the Act;

(e) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering;

 

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(f) notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus or Free Writing Prospectus (to the extent prepared by or on behalf of the Company) relating thereto is required to be delivered under the Act or the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, at the request of any such Holder, the Company will, as soon as reasonably practicable, file and furnish to all such Holders a supplement or amendment to such prospectus or Free Writing Prospectus (to the extent prepared by or on behalf of the Company) so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made;

(g) cause all such Registrable Securities registered pursuant to this Article 2 to be listed on a national exchange or trading system and on each securities exchange and trading system on which similar securities issued by the Company are then listed; and

(h) provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration.

Notwithstanding the provisions of this Article 2, the Company shall be entitled to postpone or suspend, for a reasonable period of time, the filing, effectiveness or use of, or trading under, any registration statement if the Company shall determine that any such filing or the sale of any securities pursuant to such registration statement would in the good faith judgment of the Board:

(i) materially impede, delay or interfere with any material pending or proposed financing, acquisition, corporate reorganization or other similar transaction involving the Company for which the negotiations have been authorized by the Board (where such authorization is required by the Articles or applicable law);

(ii) materially adversely impair the consummation of any pending or proposed material offering or sale of any class of securities by the Company; or

(iii) require disclosure of material nonpublic information that, if disclosed at such time, would be materially harmful to the interests of the Company and its shareholders; provided, however, that during any such period all executive officers and directors of the Company are also prohibited from selling securities of the Company (or any security of any of the Company’s subsidiaries or affiliates).

In the event of the suspension of effectiveness of any registration statement pursuant to this Section 2.05, the applicable time period during which such registration statement is to remain effective shall be extended by that number of days equal to the number of days the effectiveness of such registration statement was suspended.

 

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Section 2.06. Information from Holder. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Article 2 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be reasonably required to effect the registration of such Holder’s Registrable Securities.

Section 2.07. Expenses of Registration. All expenses other than underwriting discounts and commissions incurred in connection with registrations, filings or qualifications pursuant to Sections 2.02, 2.03 and 2.04 including (without limitation) all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Company and the reasonable fees and disbursements of one counsel for the selling Holders (not to exceed US$30,000) shall be borne by the Company. Notwithstanding the foregoing, the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Sections 2.02 or 2.04 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (in which case all participating Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration), unless, in the case of a registration requested under Section 2.02, the Holders of a majority of the Registrable Securities agree to forfeit their right to demand registration pursuant to Section 2.02; provided, however, that if at the time of such withdrawal, the Holders have learned of a material adverse change in the condition, business or prospects of the Company from that known to the Holders at the time of their request and have withdrawn the request with reasonable promptness following disclosure by the Company of such material adverse change, then the Holders shall not be required to pay any of such expenses and shall retain their rights pursuant to Sections 2.02 and 2.04.

Section 2.08. Delay of Registration. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Article 2.

Section 2.09. Indemnification. In the event any Registrable Securities are included in a registration statement:

 

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(a) To the extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers, directors and stockholders of each Holder, legal counsel and accountants for each Holder, any underwriter (as defined in the Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Act or the 1934 Act, against any losses, claims, damages or liabilities (joint or several) to which they may become subject under the Act, the 1934 Act, any state securities laws or any rule or regulation promulgated under the Act or the 1934 Act, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus, final prospectus or Free Writing Prospectus contained therein or any amendments or supplements thereto, any issuer information (as defined in Rule 433 of the Act) filed or required to be filed pursuant to Rule 433(d) under the Act or any other document incident to such registration prepared by or on behalf of the Company or used or referred to by the Company, (ii) the omission or alleged omission to state in such registration statement a material fact required to be stated therein, or necessary to make the statements therein not misleading or (iii) any violation or alleged violation by the Company of the Act, the 1934 Act, any state securities laws or any rule or regulation promulgated under the Act, the 1934 Act or any state securities laws, and the Company will reimburse each such Holder, underwriter, controlling person or other aforementioned person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 2.09(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, action or proceeding to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter, controlling person or other aforementioned person; provided further, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Holder or underwriter or other aforementioned person, or any person controlling such Holder or underwriter, from whom the person asserting any such losses, claims, damages or liabilities purchased shares in the offering, if a copy of the most current prospectus was not sent or given by or on behalf of such Holder or underwriter or other aforementioned person to such person, if required by law to have been so delivered, at or prior to the written confirmation of the sale of the shares to such person, and if the prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability.

(b) To the extent permitted by law, each selling Holder will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the registration statement, each person, if any, who controls the Company within the meaning of the Act, legal counsel and accountants for the Company, any underwriter, any other Holder selling securities in such registration statement and any controlling person of any such underwriter or other Holder, against any losses, claims, damages or liabilities (severally and not jointly) to which any of the foregoing persons may become subject, under the Act, the 1934 Act, any state securities laws or any rule or regulation promulgated under the Act, the 1934 Act or any state securities laws, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Holder expressly for use in connection with such registration; and each such Holder will reimburse any person intended to be indemnified pursuant to this Section 2.09(b) for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 2.09(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, action or proceeding if such settlement is effected without the consent of the Holder (which consent shall not be unreasonably withheld), and provided that in no event shall any indemnity under this Section 2.09(b) exceed the net proceeds from the offering received by such Holder.

 

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(c) Promptly after receipt by an indemnified party under this Section 2.09 of notice of the commencement of any action or proceeding (including any governmental action or proceeding), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.09, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action or proceeding, if prejudicial to its ability to defend such action or proceeding, shall relieve such indemnifying party of liability to the indemnified party under this Section 2.09 to the extent of such prejudice, but the omission to so deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.09.

(d) If the indemnification provided for in this Section 2.09 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage or expense referred to herein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other hand in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations; provided, however, that no contribution by any Holder, when combined with any amounts paid by such Holder pursuant to Section 2.09, shall exceed the net proceeds from the offering received by such Holder. The relative fault of the indemnifying party and the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

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(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.

(f) The obligations of the Company and Holders under this Section 2.09 shall survive the completion of any offering of Registrable Securities in a registration statement under this Article 2 and otherwise.

Section 2.10. Reports Under the 1934 Act. With a view to making available to the Holders the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit a Holder to sell Registrable Securities of the Company to the public without registration or pursuant to a registration on Form F-3 or Form S-3, the Company agrees to:

(a) make and keep public information available, as those terms are understood and defined in Rule 144, at all times after the effective date of the IPO;

(b) file with the SEC in a timely manner all reports and other documents required of the Company under the Act and the 1934 Act; and

(c) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has complied with the reporting requirements of Rule 144 (at any time after ninety (90) days after the effective date of the registration statement filed by the Company in connection with the IPO), the Act and the 1934 Act (at any time after it has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form F-3 or Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to avail any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration or pursuant to such form.

Section 2.11. Assignment of Registration Rights. The rights to cause the Company to register Registrable Securities pursuant to this Article 2 may be assigned (but only with all related obligations) by a Holder to a transferee or assignee of such Registrable Securities that (i) is an Affiliate, subsidiary, parent, partner, limited partner, member, retired partner or stockholder of a Holder, (ii) is a Holder’s family member or trust for the benefit of an individual Holder, (iii) after such assignment or transfer, would hold at least 70,800,000 Class A Ordinary Shares (on an as-converted basis and appropriately adjusted for any stock split, dividend, combination or other recapitalization), or (iv) solely in the case of the Founding Shareholder (as such term is defined in the Articles, and so long as the Founding Shareholder qualifies as a “Holder” hereunder), to an “Affiliate,” as such term is defined in the Articles or other Person listed in Section 5.5(a)(3) of the Articles; provided that (a) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee or assignee and the Registrable Securities with respect to which such registration rights are being assigned; (b) such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Agreement, including, without limitation, the provisions of Section 2.13 below; and (c) such assignment shall be effective only if immediately following such transfer the further disposition of such securities by the transferee or assignee is restricted under the Act.

 

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Section 2.12. Limitations on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written consent of the Holders of a majority of the Registrable Securities, enter into any agreement with any holder or prospective holder of any securities of the Company that would provide to such holder the right to include any of such securities in any registration filed under Section 2.02, Section 2.03 or Section 2.04 hereof on other than a pro rata basis or a subordinate basis with respect to the Registrable Securities.

Section 2.13. “Market Stand-Off” Agreement.

(a) Each Holder hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the Company’s IPO and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred and eighty (180) days) (i) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares held immediately prior to the effectiveness of the registration statement for such offering, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Ordinary Shares, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Ordinary Shares or other securities, in cash or otherwise. The foregoing provisions of this Section 2.13 shall apply only to the IPO and shall not apply to the sale of any shares to an underwriter pursuant to an underwriting agreement. In addition, the foregoing obligations of the Holders shall only be applicable to the Holders if all officers, directors and greater than one percent (1%) shareholders (on an as-converted to Ordinary Shares basis) of the Company enter into similar agreements; provided that for the avoidance of doubt, this sentence shall not limit the rights of any Holder under this Section 2.13. The underwriters in connection with the IPO are intended third-party beneficiaries of this Section 2.13 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each Holder further agrees to execute such agreements as may be reasonably requested by the underwriters in the IPO that are consistent with this Section 2.13 or that are necessary to give further effect thereto. Any discretionary waiver or termination of the restrictions of any or all of such agreements by the Company or the underwriters shall apply pro rata to all Holders subject to such agreements, based on the number of shares subject to such agreements. To the extent that the terms of any lock-up agreement entered into by a Holder and the underwriters in connection with the IPO are in conflict with the foregoing provisions, the provisions in such lock-up agreement shall control. In order to enforce the foregoing covenants, the Company may impose stop-transfer instructions with respect to the Registrable Securities of each Holder (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period applicable to such Holder.

 

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(b) Each Holder agrees that a legend reading substantially as follows (subject to adjustment as required to comport with Section 2.13(a)) shall be placed on all certificates (if any) representing all Registrable Securities of each Holder or, if the Registrable Securities are not certificated, the following note will be inserted on the pages of the register of members of the Company in which the Registrable Securities are registered (and the shares or securities of every other person subject to the restriction contained in this Section 2.13):

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS AFTER THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FOR INITIAL PUBLIC OFFERING FILED UNDER THE ACT, AS AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER’S PRINCIPAL OFFICE. SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.

Section 2.14. Legend Removal. Following the IPO, in connection with any sale of Registrable Securities permitted by this Agreement that will result in such securities no longer being Registrable Securities, the Company will cooperate with the applicable Holder to, subject to applicable laws, (i) rescind any Act transfer restrictions or notations applicable to the Registrable Securities and, if the Registrable Securities are certificated, facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive Act legends and (ii) register such Registrable Securities in such denominations and such names as such Holder may request at least two (2) Business Days prior to such sale of Registrable Securities; provided that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the Depository Trust Company’s Direct Registration System.

Section 2.15. Termination of Registration Rights. The rights that each Holder shall be entitled to exercise under this Article 2 shall terminate upon the earlier of: (i) five (5) years following the consummation of the IPO, (ii) such earlier time after the IPO at which such Holder holds one percent (1%) or less of the Company’s outstanding Ordinary Shares (on an as-converted to Ordinary Shares basis) and all Registrable Securities held by such Holder (together with any Affiliate of the Holder with whom such Holder must aggregate its sales under Rule 144) can be sold in any ninety (90)-day period without registration in compliance with Rule 144, or (iii) immediately before the consummation of a Change of Control (as such term is defined in the Articles) or the liquidation, dissolution or winding up of the Company.

 

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ARTICLE 3

MISCELLANEOUS.

Section 3.01. Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties (including transferees of any shares of Registrable Securities as permitted hereunder). Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. The Company may assign this Agreement at any time in connection with a sale or acquisition of the Company, whether by merger, consolidation, sale of all or substantially all of the Company’s assets, or similar transaction, without the consent of the Holders; provided that the successor or acquiring Person agrees in writing to assume all of the Company’s rights and obligations under this Agreement. Except as set provided in Section 2.11, the Holders may not assign their rights and obligations hereunder.

Section 3.02. Governing Law; Exclusive Jurisdiction. This Agreement and any controversy arising out of or relating to this Agreement shall be governed by and construed under the laws of the Cayman Islands. The parties hereto (i) hereby irrevocably and unconditionally submit to the jurisdiction of the courts of the Cayman Islands for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the courts of the Cayman Islands, and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

Section 3.03. Counterparts. This 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. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. The parties hereto irrevocably and unreservedly agree that this Agreement, and any and all exhibits hereto or documents contemplated hereby, may be executed by way of electronic signatures and the parties hereto agree that such document(s), or any part thereof, shall not be challenged or denied any legal effect, validity and/or enforceability solely on the ground that it is in the form of an electronic record.

 

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Section 3.04. Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

Section 3.05. Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next Business Day, (iii) on the date certified by the post office or courier, if sent by registered or certified mail, return receipt requested, postage prepaid, or by an internationally recognized overnight courier, specifying second-day delivery, with written verification of receipt. All communications shall be sent to the respective parties at the addresses and/or email addresses set forth on the signature pages attached hereto or, in the case of the Holders, to the respective addresses and/or email addresses set forth on Schedule A hereto (or at such other addresses or email addresses as shall be specified by notice given in accordance with this Section 3.05).

Section 3.06. Expenses. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

Section 3.07. Entire Agreement; Amendments and Waivers. This Agreement (including the exhibits hereto, if any) amends and restates the Prior Agreement in its entirety and constitutes the full and entire understanding and agreement among the parties with regard to the subjects hereof and thereof. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and the holders of a majority of the Registrable Securities; provided, however, that in the event such amendment or waiver adversely affects the obligations or rights of a Holder in a different manner than the other Holders, such amendment or waiver shall also require the written consent of such Holder. Any amendment or waiver effected in accordance with this paragraph shall be binding upon each holder of Registrable Securities, each future holder of all such Registrable Securities and the Company. Notwithstanding the foregoing, this Agreement may be amended by the Company alone to admit holders of any security of the Company so long as the rights of such holders hereunder are on a pro rata basis or a subordinate basis with respect to the Registrable Securities held by the Shareholders who were parties to this Agreement prior to the issuance of such security.

Section 3.08. Third Party Rights. Nothing in this Agreement shall confer any rights upon any other person other than the parties hereto and their respective heirs, successors and permitted assigns and the Contracts (Rights of Third Parties) Law, 2014, shall not confer on any person who is not a party to this Agreement any rights. The consent of any person not a party to this Agreement shall not be required in respect of any amendment, variation or supplement made to this Agreement.

 

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Section 3.09. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision(s) shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision(s) were so excluded and shall be enforceable in accordance with its terms.

Section 3.10. Aggregation of Shares. All shares of Registrable Securities held or acquired by affiliated entities (including affiliated venture capital funds) or persons shall be aggregated together for the purpose of determining the availability or the exercise of any rights under this Agreement.

Section 3.11. Confidentiality. Each Shareholder agrees, severally and not jointly, to use the same degree of care as such Shareholder uses to protect its own confidential information for any information obtained pursuant to this Agreement or otherwise as a shareholder of the Company which the Company identifies in writing as being proprietary or confidential and such Shareholder acknowledges that it will not, unless otherwise required by law or the rules of any national securities exchange, association or marketplace, disclose such information without the prior written consent of the Company except such information that (a) was in the public domain prior to the time it was furnished to such Shareholder, (b) is or becomes (through no willful improper action or inaction by such Shareholder) generally available to the public, (c) was in its possession or known by such Shareholder without restriction prior to receipt from the Company, (d) was rightfully disclosed to such Shareholder by a third party without restriction or (e) was independently developed without any use of the Company’s confidential information. Notwithstanding the foregoing, (x) each Shareholder that is a limited partnership or limited liability company may disclose such proprietary or confidential information to any former partners or members who retained an economic interest in such Shareholder, current or prospective partner of the partnership or any subsequent partnership under common investment management, limited partner, general partner, member or management company of such Shareholder (or any employee or representative of any of the foregoing), (y) each Shareholder that is not a natural person may disclose such proprietary or confidential information to any Affiliate of such Shareholder (or any employee or representative of any Affiliate of such Shareholder) and (z) each Shareholder may disclose such proprietary or confidential information to legal counsel, accountants or representatives of such Shareholder (each of the foregoing Persons, a “Permitted Disclosee”). Furthermore, nothing contained in this Section 3.11 shall prevent any Shareholder or any Permitted Disclosee from (i) entering into any business, entering into any agreement with a third party, or investing in or engaging in investment discussions with any other company (whether or not competitive with the Company), provided that such Shareholder or Permitted Disclosee does not, except as permitted in accordance with this Section 3.11, disclose or otherwise make use of any proprietary or confidential information of the Company in connection with such activities, or (ii) making any disclosures required by law, rule, regulation (including the securities and public company related regulations and rules issued by any stock exchanges, as amended and restated from time to time) or court or other governmental order.

[Remainder of page intentionally left blank]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

COMPANY:   NU HOLDINGS LTD.
By:		/s/ David Vélez Osorno
		Name: David Vélez Osorno
		Title: Director
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

RUA CALIFORNIA LTD.
By:		/s/ David Vélez Osorno
		Name: David Vélez Osorno
		Title: Director
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

KV NUB, LLC
By:		/s/ Nicolas Carlos Szekasy
		Name: Nicolas Carlos Szekasy
		Title: Director
Address: [***]
KV EOS HOLDINGS, LLC
By:		/s/ Nicolas Carlos Szekasy
		Name: Nicolas Carlos Szekasy
		Title: Director
Address: [***]
KASZEK VENTURES OPPORTUNITY I, L.P.
By:		/s/ Nicolas Carlos Szekasy
		Name: Nicolas Carlos Szekasy
		Title: Director
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

SC USV XIV DE INVESTMENTS, LLC
By:		/s/ Douglas M. Leone
		Name: Douglas M. Leone
		Title: Authorized Signatory
Address: [***]
SC USG VI DE INVESTMENTS, LLC
By:		/s/ Douglas M. Leone
		Name: Douglas M. Leone
		Title: Authorized Signatory
Address: [***]
SEQUOIA GROVE II, LLC
By:		/s/ Douglas M. Leone
		Name:
		Title:
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

SCGE FUND, L.P.
By:		/s/ Kimberly Summe
		Name: Kimberly Summe
		Title: Chief Operating Officer and General Counsel
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

DST-NB INVESTMENTS LIMITED
By:		/s/ Despoina Zinonos
		Name: Despoina Zinonos
		Title: Director
Address: [***]
DST INVESTMENTS XVIII, L.P.   By: DST Managers V Limited, its general partner
By:		/s/ Despoina Zinonos
		Name: Despoina Zinonos
		Title: Director
Address: [***]
DST CO-INVEST-NB INVESTMENT LIMITED
By:		/s/ Despoina Zinonos
		Name: Despoina Zinonos
		Title: Director
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

DST-NB INVESTMENTS VI LIMITED
By:		/s/ Despoina Zinonos
		Name: Despoina Zinonos
		Title: Director
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

NIFTY DF INVESTMENTS, LP
By:		/s/ Pat Robertson
		Name: Pat Robertson
		Title: Authorized Person
Address: [***]
NIFTY FD HOLDINGS, LP
By:		/s/ Pat Robertson
		Name: Pat Robertson
		Title: Authorized Person
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

TCV NB CO, L.P. a Cayman Islands exempted limited partnership, acting by its general partner   TECHNOLOGY CROSSOVER MANAGEMENT X, L.P. a Cayman Islands exempted limited partnership, acting by its general partner   TECHNOLOGY CROSSOVER MANAGEMENT X, LTD. a Cayman Islands exempted company
By:		/s/ Frederic D. Fenton
		Name: Frederic D. Fenton
		Title: Attorney-in-fact
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

TCV X (A) BLOCKER, L.P. a Cayman Islands exempted limited partnership, acting by its general partner   TECHNOLOGY CROSSOVER MANAGEMENT X, L.P. a Cayman Islands exempted limited partnership, acting by its general partner   TECHNOLOGY CROSSOVER MANAGEMENT X, LTD. a Cayman Islands exempted company
By:		/s/ Frederic D. Fenton
		Name: Frederic D. Fenton
		Title: Attorney-in-Fact
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

TCV X (B), L.P. a Cayman Islands exempted limited partnership, acting by its general partner   TECHNOLOGY CROSSOVER MANAGEMENT X, L.P. a Cayman Islands exempted limited partnership, acting by its general partner   TECHNOLOGY CROSSOVER MANAGEMENT X, LTD. a Cayman Islands exempted company
By:		/s/ Frederic D. Fenton
		Name: Frederic D. Fenton
		Title: Attorney-in-fact
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

TCV X MEMBER FUND, L.P. a Cayman Islands exempted limited partnership, acting by its general partner   TECHNOLOGY CROSSOVER MANAGEMENT X, LTD. a Cayman Islands exempted company
By:		/s/ Frederic D. Fenton
		Name: Frederic D. Fenton
		Title: Attorney-in-fact
Address: [***]
TCV X, L.P. a Cayman Islands exempted limited partnership, acting by its general partner   Technology Crossover Management X, L.P. a Cayman Islands exempted limited partnership, acting by its general partner   Technology Crossover Management X, Ltd. a Cayman Islands exempted company
By:		/s/ Frederic D. Fenton
		Name: Frederic D. Fenton
		Title: Attorney-in-fact
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

TIGER GLOBAL PRIVATE INVESTMENT PARTNERS IX, LP.   By: Tiger Global PIP Performance IX, LP., its general partner   By: Tiger Global PIP Management IX, Ltd., its general partner
By:		/s/ Steven D. Boyd
		Name: Steven D. Boyd
		Title: General Counsel
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

FF BRAZIL, LLC
By:		/s/ Scott Nolan
		Name: Scott Nolan
		Title: Partner
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

COLUMBIA INSURANCE COMPANY
By:		/s/ Todd Combs
		Name: Todd Combs
		Title: Investment Officer
Address: [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

RIBBIT CAPITAL VI, L.P.,
for itself and as nominee for
Ribbit Founder Fund VI, L.P.
By: Ribbit Capital GP VI, L.P.,
its general partner
By: Ribbit Capital GP VI, Ltd.,
its general partner
By:		/s/ Cynthia McAdam
Name: Cynthia McAdam
Title: Attorney-in-Fact
RIBBIT CAPITAL III, L.P.,
for itself and as nominee
By: Ribbit Capital GP III, L.P.,
its general partner
By: Ribbit Capital GP III, Ltd.,
its general partner
By:		/s/ Cynthia McAdam
Name: Cynthia McAdam
Title: Attorney-in-Fact

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

BULLFROG CAPITAL, L.P.,
for itself and as nominee for
Bullfrog Founder Fund, L.P.
By: Bullfrog Capital GP, L.P.,
its general partner
By: Bullfrog Capital GP, Ltd.,
its general partner
By:		/s/ Cynthia McAdam
Name: Cynthia McAdam
Title: Attorney-in-Fact

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

Redpoint Omega II, L.P., by its General Partner
Redpoint Omega II, LLC
By:		/s/ Elliot Geidt
Name:		Elliot Geidt
Title:		Manager
Redpoint Omega Associates II, LLC, as nominee
By:		/s/ Elliot Geidt
Name:		Elliot Geidt
Title:		Manager

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

CHJZ INVESTMENTS LTD.
By:		/s/ Cristina Helena Zingaretti Junqueira
		Name: Cristina Helena Zingaretti Junqueira
		Title:   Director

 

CRISTINA HELENA ZINGARETTI JUNQUEIRA

/s/ Cristina Helena Zingaretti Junqueira

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

SILVER ALTERNATIVE HOLDING LIMITED
By:		/s/ Li Zhao Hui
		Name: Li Zhao Hui
		Title:  Authorized Representative
Address: [***]   with a copy to:   [***]

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the date first written above.

 

TENCENT CLOUD EUROPE B.V.
By:		/s/ Constant Pieter van der Merwe
		Name: Constant Pieter van der Merwe
		Title:   Authorized Signatory
Address: [***]   with a copy to:   [***]

 

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

 

SCHEDULE A

 

Holder		Address
31416 S.A.S.		[***]
Absoluto Partners VC Master Fund, LLC		[***]
Adam Edward Wible		[***]
Adonay de Nuccio		[***]
AEZ Hub Ltd.		[***]
AI Palau LLC		[***]
AIM Investment Fund (Invesco Investment Funds) on behalf of its series portfolio Invesco Developing Markets Fund		[***]
Alejandro Moreno Mejía		[***]
Alexandre Baldasseirine Neto		[***]
Alexandre Floriano Rodrigues da Silva		[***]
Alyson Richards Ahearn		[***]
American Funds Insurance Series – New World Fund		[***]
Amit Kumar Singh		[***]
Anantya Capital, LLC		[***]
Anderson Luis Paiva Pinto		[***]
Andre Midea Jasiskis		[***]
Andre Victor Vicentini De Oliveira		[***]
Andrew Joseph Michalik		[***]
Arthur Ferreira Valadao		[***]
Augusto Mazzoni Pierzynski		[***]
Aurora Investment Pte. Ltd.		[***]
Baco II Ltd.		[***]
Banco Regional, S.A. Institución de Banca Múltiple, Banregio Grupo Financiero as Trustee of Trust Number 851-01378		[***]
Base Select I, LLC		[***]
Base10 Partners Management, LLC		[***]
Benjamin Jason Silver		[***]
Bicalho Holding B.V.		[***]
Bizcayne Investments LP		[***]
BRK CAPITAL, LLC		[***]
Bullfrog Capital, L.P., for itself and as nominee for Bullfrog Founder Fund, L.P.		[***]
Camila Passos de Felippo		[***]
Camille Rebecca Jacobs Ramos		[***]
Capital Group New Economy Trust (US)		[***]
Carlos Eduardo Martins Relvas		[***]

 

A-1

 

 

Holder		Address
Carolina Yumi Taguchi de Carvalho		[***]
CHJZ Investments Ltd.		[***]
Claremount V Associates, L.P.		[***]
Claynon Augusto Ellert de Souza		[***]
Columbia Insurance Company		[***]
Constance Alicia Pfeiffer		[***]
CP Irrevocable GSTESLAT 2020 Trust		[***]
CPP Investment Board PMI-2 Inc.		[***]
Cristina Helena Zingaretti Junqueira		[***]
Daniel Allen Wible		[***]
Daniela Sorroche Belisario Da Silva		[***]
Developing Markets Fund		[***]
Disfrutar Investments Corp.		[***]
Douglas Arruda Silva		[***]
Douglas R. Scherrer, Trustee of the Douglas R. Scherrer Revocable 2019 Trust, and any amendments thereto		[***]
DST Co-Invest-NB Investments Limited		[***]
DST Investments XVIII, L.P.		[***]
DST-NB Investments Limited		[***]
DST-NB Investments VI Limited		[***]
Eduardo Cherem Cardoso		[***]
Eduardo Pires Baczynski		[***]
Emilio Andres Gonzalez Marcos		[***]
Eric Falchi Bedin		[***]
Eric Scaramozzino		[***]
Eric Torti		[***]
Evan Feinberg		[***]
Fabio Modolo Siqueira		[***]
Feju Investments Ltd.		[***]
Felipe Beline Baravieira		[***]
Felipe Da Costa Hummel		[***]
Fernando Carvalho Botelho de Miranda		[***]
Fernando De Barros Czapski		[***]
FF Brazil, LLC		[***]
Finance 1805, SA		[***]
FRJP Ltd.		[***]
Gabrielle Moura Silva		[***]
Gamvest Pte Ltd.		[***]
Gavin Bell		[***]
Glassbridge Inc.		[***]
Gondwana Capital Inc.		[***]
Greentrail Private Opportunities I LLC		[***]
Guilherme Alfredo Neumann		[***]

 

A-2

 

 

Holder		Address
Guilherme Eduardo Seabra Freitas		[***]
Gustavo Barrancos Hermogenes		[***]
Gustavo Franco		[***]
Harvest Alta NB, LP		[***]
Harvest Growth Capital III LLC		[***]
Helematt Ltd.		[***]
Helio Lascala Martins Padrao		[***]
Hendrik Jacob Van Veen		[***]
Hirji-Wigglesworth Partners, LP		[***]
Howard University		[***]
Igor da Silva Borges		[***]
Invesco Emerging Markets Equity Fund, LP		[***]
Invesco Emerging Markets Equity Trust		[***]
Isabella Osorno		[***]
Ivan Antonio Pisani		[***]
Ivando Junqueira Junior		[***]
Jaguar Ventures II, LP		[***]
Jariwala Living Trust		[***]
Joao Paulo Aguilera Borges		[***]
João Paulo Lemes da Costa		[***]
Jose Filipe Sabella Barciella		[***]
José Mendes de Farias		[***]
Juan Carlos Guillermety		[***]
Juan Osorno		[***]
Juliana de Barros Ferreira		[***]
Kaszek Ventures Opportunity I, L.P.		[***]
Kevin William Bird		[***]
Kisangani Limited		[***]
Konrad Georg Ethienne Scorciapino		[***]
KV EOS Holdings, LLC		[***]
KV Nub, LLC		[***]
Lilian Yassue Kazama		[***]
Lily Cormorant, LLC		[***]
Lisbontown Ltd.		[***]
Lish Lee Jung		[***]
Logan Noah Kroloff		[***]
Lucas Consolini Limao		[***]
Lucas Eduardo da Silva Rodrigues		[***]
Lucas Hervelha Gerassi Bauermann Estevam		[***]
Lucas Neumann De Antonio		[***]
Luis Alberto Moreno Mejía		[***]
Luis Felipe de Felippo Teixeira		[***]

 

A-3

 

 

Holder		Address
Magic Stone Special Opportunity Fund II L.P.		[***]
Manoj Pinnamaneni		[***]
Marcela Velez Osorno		[***]
Marcos Celso Ramos Simões		[***]
Marcos de Moraes Leme Jarne		[***]
Maria del Mar Velez Osorno		[***]
Maria Victoria Osorno		[***]
Marisa Ferreira Mogadouro		[***]
Mauro Velez Gonzalez		[***]
MP Irrevocable GSTESLAT 2019 Trust		[***]
Murilo Moreira Santos		[***]
Napoleon Ta		[***]
Neil Pai		[***]
Neil Ruthven and Julia Ruthven, Trustees of the Ruthven Family Trust, Dated October 1, 2012		[***]
The New Economy Fund		[***]
New World Fund, Inc.		[***]
Nifty DF Investments, LP		[***]
Nifty FD Holdings, LP		[***]
Oliver Jung		[***]
Olook Ventures Ltd.		[***]
Ono Ltd.		[***]
Oscar Rodriguez Herrero		[***]
Patrick Barth		[***]
Pedro Felipe Reyes Vásquez		[***]
Pedro Henrique Santana Mariano		[***]
Pedro Kvitko Axelrud		[***]
Pedro Milanez Siciliano		[***]
Pera Manca Tinto Ltd.		[***]
PIC ME LTD		[***]
Phillip Lopes Mates		[***]
Post House Capital LLC		[***]
Purpleheart Ltd.		[***]
QED Fund III, LP		[***]
QED LatAm Fund LP		[***]
Raghav Aggarwal		[***]
Ramon Martinez Ribeiro Neto		[***]
RED NOVEMBER PAL TECH SCS		[***]
Redpoint Omega Associates II, LLC		[***]
Redpoint Omega II, L.P.		[***]
Renato Campanholo		[***]
Ribbit Capital III, L.P.		[***]

 

A-4

 

 

Holder		Address
Ribbit Capital VI, L.P.		[***]
Rodrigo Perez Taboada		[***]
Roger W. Sant Revocable Living Trust		[***]
Rogério Marcos Martins de Oliveira		[***]
Rua California Ltd.		[***]
Sands Capital Global Innovation Fund II, LLC		[***]
Sands Point Consulting, LLC		[***]
SC USG VI DE INVESTMENTS, L.L.C.		[***]
SC USV XIV DE INVESTMENTS, L.L.C.		[***]
SCB Ltd.		[***]
SCGE Fund, L.P.		[***]
Scott Nolan		[***]
Sequoia Grove II, LLC		[***]
Serendipe Investments Ltd.		[***]
Silver Alternative Holding Limited		[***]
Simone de Fátima Soares de Lima		[***]
Stelutis Alpinis 11 Ltd.		[***]
Sunley House Capital Master Limited Partnership		[***]
TCCS I, LP		[***]
TCDS I, LP		[***]
TCLS I, LP		[***]
TCV NB Co, L.P.		[***]
TCV X (A) Blocker, L.P.		[***]
TCV X (B), L.P.		[***]
TCV X Member Fund, L.P.		[***]
TCV X, L.P.		[***]
Tencent Cloud Europe B.V.		[***]
Thais Starling De Padua Lamy De Miranda		[***]
Thierry Hajatiana Louis Silbermann		[***]
Thrive Capital Partners V, L.P.		[***]
TIGA (Brazil) I, LP		[***]
TIGA (Brazil) III, LP		[***]
Tiger Global Private Investment Partners IX, L.P.		[***]
Timugi Capital Ltd.		[***]
Tyler Brannen Richie		[***]
Utmost PanEurope dac		[***]
Verde Directive Fund Ltd.		[***]
Vinicius Pirani de Oliveira		[***]
Whale Rock Flagship (AI) Fund LP		[***]
Whale Rock Flagship Master Fund, LP		[***]
Whale Rock Long Opportunities Master Fund, LP		[***]
Wolf River 21, LLC		[***]

 

A-5

 

 

Exhibit 4.3

SHAREHOLDER’S AGREEMENT

This SHAREHOLDER’S AGREEMENT (as the same may be amended from time to time in accordance with its terms, the “Agreement”) is entered into as of November 29, 2021, by and between Nu Holdings Ltd., an exempted company formed under the laws of the Cayman Islands (the “Company”), and the Shareholder (as defined below).

W I T N E S S E T H:

WHEREAS, the Company is currently contemplating an underwritten initial public offering (the “IPO”) of shares of its Class A Ordinary Shares; and

WHEREAS, in connection with, and effective upon, the completion of the IPO (such date of completion, the “IPO Date”), the Company and the Shareholder wish to set forth certain understandings between such parties, including with respect to certain governance matters.

NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the parties hereto agree as follows:

ARTICLE 1

DEFINITIONS

Section 1.01. Definitions. (a) As used in this Agreement, the following terms have the following meanings:

“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, and (i) in the case of a natural person, shall include, without limitation, such person’s spouse, domestic partner, parents, step-parents, children, step-children, grandchildren, siblings, nieces, nephews, mother-in-law and father-in-law and brothers- and sisters-in-law and sons-in-law and daughters-in-law, whether by blood, marriage or adoption or anyone residing in such person’s home, a trust for the benefit of any of the foregoing, or a company, partnership or entity wholly or jointly owned by any of the foregoing, and (ii) in the case of an entity, shall include a partnership, corporation or any natural person or entity which, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. For the purpose of this definition, the term “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as used with respect to any Person, means the ownership, directly or indirectly, of securities possessing more than fifty per cent (50%) of the voting power of the corporation, partnership or other entity (other than, in the case of a corporation, shares having such power only by reason of the happening of a contingency), or having the power to control the management or elect a majority of members to the board of directors or equivalent decision-making body of such corporation, partnership or other entity.

“Articles of Association” means the Amended and Restated Memorandum and Articles of Association of the Company, as the same may be amended from time to time.

 

“Board” means the board of directors of the Company.

“Business Combination” means a statutory amalgamation, merger, consolidation, arrangement or other reorganization involving the Company requiring the approval of the members of one or more of the participating companies as well as a short-form merger or consolidation that does not require a resolution of members.

“Business Day” means any day on which banks are not required or authorized by law to close in the City of New York, New York, USA or in São Paulo, State of São Paulo, Brazil.

“Change of Control” means (i) the merger or consolidation of the Company or any of its subsidiaries with or into another Person (other than the Company or any of its wholly owned subsidiaries) or the merger of another Person (other than the Company or any of its wholly owned subsidiaries) with or into the Company or any of its subsidiaries, (ii) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to any Person other than a wholly owned subsidiary of the Company or (iii) any “person” or “group” (as such terms are used for purposes of Section 13(d) of the Exchange Act) is or becomes the a beneficial owner, directly or indirectly, of more than 50% of the Total Voting Power or acquires the power to direct or cause the direction of the management and policies of the Company, whether through the ownership of voting securities, by contract or otherwise.

“Class A Ordinary Shares” means the class A ordinary shares of a nominal or par value of US$0.000006666666667 each in the capital of the Company having the rights provided for in the Articles of Association.

“Class B Ordinary Shares” means the class B ordinary shares of a nominal or par value of US$0.000006666666667 each in the capital of the Company having the rights provided for in the Articles of Association.

“Company Securities” means (i) the Ordinary Shares and (ii) securities that entitle the holder to vote in the election of directors to the Board that are convertible into or exchangeable for Ordinary Shares.

“Exchange” means the New York Stock Exchange, the B3 and any other stock exchange or interdealer quotation system listed in Schedule 4 of The Companies Act (Revised) on which shares in the capital of the Company are listed or quoted.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Independent Director” means an “independent director” as such term is used in the listing requirements of the Exchange.

 

2

 

“Necessary Action” means, with respect to a specified result, all actions (to the extent such actions are permitted by law and by the Articles of Association) necessary to cause such result, including (i) in the case of the Shareholder, voting or providing a written consent or proxy with respect to the Company Securities, (ii) in the case of the Company, calling a general meeting for the purpose of causing the passing of shareholders’ resolutions, including to make amendments to the Articles of Association, (iii) executing agreements and instruments, and (iv) making, or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such result. For the avoidance of doubt, the Company shall not be required to take any Necessary Action that is contrary to or conflicting with the Articles of Association or applicable law.

“Ordinary Shares” means collectively, the Class A Ordinary Shares and the Class B Ordinary Shares (provided that in no circumstance shall such shares be counted twice).

“Person” means any individual, corporation, general or limited partnership, limited liability company, joint stock company, joint venture, estate, trust, association, organization or any other entity or governmental entity.

“Permitted Assigns” means a transferee of Shares by the Shareholder who is (i) an Affiliate of the Shareholder, (ii) a trustee of a trust established for the benefit of the Shareholder or an Affiliate of the Shareholder, (iii) an organization that is exempt from taxation under Section 501(3)(c) of the United States Internal Revenue Code of 1986, as amended (or any successor thereto), or to an organization that is exempt from taxation in Brazil under Sections 184, 377 or 378 of the 2018 Internal Tax Regulations, as amended (or any successor thereto), and that is controlled, directly or indirectly through one or more intermediaries, by the Shareholder, or (iv) a partnership, corporation or other entity owned or controlled by the Shareholder or an Affiliate of the Shareholders, in each case that agrees in writing to become party to, and be bound to the same extent as its transferor by the terms of, this Agreement, in the form of Exhibit A hereto; provided, that upon such transfer, such Permitted Assign shall be deemed to be a “Shareholder” hereto for all purposes herein.

“Shares” means the Ordinary Shares in issue.

“Shareholder” means, collectively, David Vélez Osorno, Rua California Ltd. (as long as it remains a vehicle controlled by David Vélez Osorno) and any Person (other than the Company) affiliated with David Vélez Osorno and/or any of his Permitted Assigns who shall then be a party to or bound by this Agreement, so long as such Person shall “beneficially own” (as such term is defined in Rule 13d-3 of the Exchange Act) any Company Securities.

A company is a “Subsidiary” of another company if that other company: (i) holds a majority of the voting rights in it; (ii) is a member of it and has the right to appoint or remove a majority of its board of directors; or (iii) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it; or if it is a subsidiary of a company which is itself a subsidiary of that other company. For the purpose of this definition the expression “company” includes any body corporate established in or outside of the British Overseas Territory of the Cayman Islands.

 

3

 

“Total Voting Power” means the aggregate voting power of all issued Shares having the right to receive notice of, attend, speak and vote at general meetings of the Company, voting together as a single class.

(b) Each of the following terms is defined in the Section set forth opposite such term:

 

Term		Section
Cause		2.02
Classifying Date		2.01(c)
Class I Directors		2.01(c)
Class II Directors		2.01(c)
Class III Directors		2.01(c)
Company		Preamble
Confidential Information		3.02(b)
Convertible Securities		2.05(d)
Directed Opportunity		3.04
Representatives		3.02(b)
Shareholder Directors		2.01(b)
Specified Party		3.04

Section 1.02. Other Definitional and Interpretative Provisions. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule, but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Words importing the masculine gender only shall include the feminine gender. The word “or” is not exclusive. The word “may” shall be construed as permissive and the word “shall” shall be construed as imperative. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any law include all rules and regulations promulgated thereunder. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.

 

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ARTICLE 2

CORPORATE GOVERNANCE

Section 2.01. Composition of the Board. (a) The members of the Board shall be nominated and elected in accordance with the Articles of Association and the provisions of this Agreement. As of the IPO Date, the Board shall be composed of nine directors.

(b) From and after the date hereof, the Shareholder shall have the right, but not the obligation, to nominate a number of designees to the Board (the “Shareholder Directors”) equal to:

(i) up to five Shareholder Directors (or if the size of the Board is increased, a majority (i.e., more than 50%) of the total number of directors, rounded upward to the nearest whole number), so long as the Shareholder and its Affiliates continue to beneficially own at least 40% of the Total Voting Power,

(ii) up to three Shareholder Directors (or if the size of the Board is increased, one-third of the total number of Directors, rounded upward to the nearest whole number), so long as the Shareholder and its Affiliates continue to beneficially own at least 25% of the Total Voting Power, and

(iii) up to one Shareholder Director (or if the size of the Board is increased, 10% of the total number of directors, rounded upward to the nearest whole number), so long as the Shareholder and its Affiliates continue to beneficially own at least 5% of the Total Voting Power.

In the event that the Shareholder has nominated less than the total number of Shareholder Directors the Shareholder is entitled to nominate pursuant to this Section 2.01(b), the Shareholder shall have the right, at any time, to nominate such additional Shareholder Directors to which it is entitled, in which case the Shareholder and the Company shall take, or cause to be taken, all Necessary Action to appoint such additional Shareholder Directors nominated by the Shareholder to the Board.

(c) In accordance with the Articles of Association, from and after the date on which the Shareholder (together with its Affiliates) no longer beneficially owns more than 50% of the Total Voting Power (the “Classifying Date”), the directors shall be divided into three classes designated Class I, Class II and Class III. Each class of Directors shall consist, as nearly as possible, of one third of the total number of directors constituting the entire Board. The Board shall assign members of the Board in office at the Classifying Date to such classes. Each director shall serve for a term ending on the date of the third annual general meeting of shareholders next following the annual general meeting of shareholders at which such director was elected, provided that directors initially designated as Class I Directors (“Class I Directors”) shall serve for a term ending on the date of the first annual general meeting of shareholders following the Classifying Date, directors initially designated as Class II Directors (“Class II Directors”) shall serve for a term ending on the second annual general meeting of shareholders following the Classifying Date, and directors initially designated as Class III Directors (“Class III Directors”) shall serve for a term ending on the date of the third annual general meeting of shareholders following the Classifying Date. The Company shall ensure that the Shareholder Directors shall be allocated to the longest duration classes, unless otherwise directed by the Shareholder.

 

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(d) The Company agrees, to the fullest extent permitted by applicable law (including with respect to any applicable fiduciary duties under the Companies Act (as revised)), to take all Necessary Action to effectuate the above by: (A) including the persons designated pursuant to this Section 2.01 in the slate of nominees recommended by the Board for election at any meeting of shareholders called for the purpose of electing directors, (B) nominating and recommending each such individual to be elected as a director as provided herein, (C) soliciting proxies or consents in favor thereof, and (D) without limiting the foregoing, otherwise using its reasonable best efforts to cause such nominees to be elected to the Board, including providing at least as high a level of support for the election of such nominees as it provides to any other individual standing for election as a director.

(e) At any time when the number of Directors that the Shareholder is entitled to nominate pursuant to this Section 2.01 is less than the number of Shareholder Directors on the Board, the Shareholder shall cause the required number of Shareholder Directors to resign from the Board or not stand for reelection on or prior to the Company’s next general meeting of shareholders at which directors of the Company are to be elected, and any vacancies resulting from such resignation shall be filled by the Board in accordance with the Articles of Association, the rules of the U.S. Securities Exchange Commission (the “SEC”) and the rules of the Exchange then in effect.

(f) For the avoidance of doubt, the rights granted to the Shareholder to designate members of the Board are additive to, and not intended to limit in any way, the rights that the Shareholder or any of its Affiliates may have to nominate, elect or remove directors under the Articles of Association or Cayman Islands law.

Section 2.02. Removal. So long as the Shareholder is entitled to designate one or more nominees pursuant to Section 2.01, the Shareholder shall have the right to remove any such director (with or without Cause (as such term is defined in the Articles of Association)), from time to time and at any time, from the Board, exercisable upon written notice to the Company.

Section 2.03. Vacancies. In the event that a vacancy is created on the Board at any time by the death, disability, resignation or removal (whether by the Shareholder or otherwise in accordance with the Articles of Association, as may be amended or restated from time to time) of a Shareholder Director, the Shareholder shall be entitled to designate an individual to fill the vacancy so long as the total number of persons that will serve on the Board as designees of the Shareholder immediately following the filling of such vacancy will not exceed the total number of persons the Shareholder is entitled to designate pursuant to Section 2.01 on the date of such replacement designation. The Company and the Shareholder shall take all Necessary Action to cause such replacement designee to become a member of the Board. Subject to the provisions of this Agreement, the Board may nominate additional Directors to the Board, or fill any vacancy on the Board, pursuant to the terms of the Articles of Association.

 

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Section 2.04. Board Committees. As of the IPO Date, the Board has designated each of the following committees: an Audit and Risk Committee, a Leadership Development, Diversity and Compensation Committee and a Stakeholders Committee. For so long as the Shareholder has the right to designate at least one (1) Shareholder Director pursuant to Section 2.01, the Shareholder shall have the right, but not the obligation, to designate its pro rata share of the total number of members of each committee of the Board that is equal to the proportion that the number of Shareholder Directors bears to the total number of directors of the Company and the Board shall take Necessary Action to appoint such designee(s) to such committee; provided that the right of any Shareholder Director to serve on a committee shall be subject to applicable law and the Company’s obligation to comply with any applicable requirements of the Exchange.

Section 2.05. Actions Requiring Consent. For so long as the Shareholder and its Affiliates’ continue to beneficially own at least 10% of the Total Voting Power, the Company shall not take any affirmative action, or permit its Subsidiaries to take any action (including any action by the Board or any committee thereof), with respect to any of the following matters without the prior written approval of the Shareholder:

(a) entering into any transaction or series of transactions that would result in a Change of Control;

(b) any merger, consolidation, reorganization (including conversion) or any other Business Combination involving the Company or any of its subsidiaries;

(c) any liquidation, dissolution, receivership, commencement of bankruptcy, insolvency or similar proceedings with respect to the Company or any of its Subsidiaries;

(d) authorizing or issuing any Shares or any security or obligation that, by its terms, directly or indirectly, is convertible into or exchangeable or exercisable for Shares (collectively, “Convertible Securities”) and any option, warrant or other right to subscribe for, purchase or acquire Convertible Securities, other than (i) pursuant to any share plan, employee share purchase plan or equity incentive plan approved by the Board, (ii) in connection with the acquisition by the Company or any of its Subsidiaries of the securities, business, technology, property or other assets of another Person or pursuant to an employee benefit plan assumed by the Company or any of its Subsidiaries in connection with such acquisition, or the Company’s joint ventures, equipment leasing arrangements, debt financings or other strategic transactions; provided that the aggregate number of Shares (or Shares underlying Convertible Securities) issued or issuable over any 12-month period under this clause (ii) shall not exceed 10% of the total number of Shares in issue on the first day of such 12-month period, (iii) in connection with the exchange or conversion of Class B Ordinary Shares into Class A Ordinary Shares, as contemplated by the Articles of Association or (iv) in compliance with the Articles of Association;

(e) the acquisition, sale, conveyance, transfer or other disposition of any asset or business of the Company or any of its Subsidiaries, in one transaction or a series of related transactions, the aggregate consideration or fair value of which is greater than or equal to 20% of the Company’s net equity value on the date of such transaction, as determined by the Board in good faith;

 

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(f) redeeming, repurchasing or otherwise acquiring any Shares or Convertible Securities of the Company (or any equivalent securities of its Subsidiaries), other than redemptions, repurchases or acquisitions of from employees, officers, directors, consultants or other Persons performing services for the Company or any of its Subsidiaries (or in connection with the cessation of such services) pursuant to agreements under which the Company or any of its Subsidiaries has the option to repurchase such Shares or Convertible Securities (or equivalents thereof) upon the occurrence of certain events, such as the termination of employment or service;

(g) paying or declaring any dividend or distribution on any Shares of the Company (or any equivalent securities or any of its Subsidiaries) except to the extent such payments are to the Company or one of its directly or indirectly wholly owned Subsidiaries;

(h) incurring, creating or assuming any indebtedness of the Company or any of its Subsidiaries in an amount greater than or equal to the Company’s net equity value in the aggregate on a consolidated basis;

(i) any material change in the strategic direction or scope of the Company’s business, as determined by the Board in good faith;

(j) any transaction or agreement (other than relating to the issuance or sale of Shares or Convertible Securities) between the Company and/or any of its Subsidiaries, on the one hand, and any officer, director or Affiliate of the Company, on the other (excluding, in all cases, of the Shareholder);

(k) any determination or approval of the annual compensation of an officer and/or director of the Company (excluding, in all cases, of the Shareholder); or

(l) the adoption of a shareholders’ rights plan.

ARTICLE 3

CERTAIN COVENANTS AND AGREEMENTS

Section 3.01. Access; Information; Consultation. For so long as the Shareholder and its Affiliates continue to beneficially own at least 5% of the Total Voting Power:

(a) the Company shall, and shall cause its Subsidiaries to, (i) permit the Shareholder and its designated representatives, at reasonable times and upon reasonable prior notice to the Company, to review the books and records of the Company or any of such Subsidiaries and to discuss and provide advice and direction concerning the affairs, finances and condition of the Company or any of such Subsidiaries with the officers of the Company or any such Subsidiary, and (ii) furnish the Shareholder with such available financial and operating data and other information with respect to the business and properties of the Company and its Subsidiaries as the Shareholder may reasonably request in the format and within such time periods as the Shareholder shall request.

 

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The Company shall permit the Shareholder and its Representatives (as defined below) to discuss the affairs, finances and accounts of the Company and its Subsidiaries with, and to make proposals and furnish advice to, the Company’s senior management; provided, however, that in the case of each of clause (i) and (ii), the Company shall not be required to disclose any privileged information of the Company so long as the Company has used its best efforts to provide such information to the Shareholder without the loss of any such privilege, and notified the Shareholder that such information has not been provided; and

(b) the Shareholder shall be entitled to routinely consult with and advise the Company’s senior management with respect to the Company’s and its Subsidiaries’ business and financial matters, including management’s proposed annual operating plans, and, upon request by the Shareholder, members of the Company’s senior management will meet regularly (on a quarterly basis) during each year with the Shareholder (and/or its Representatives) at mutually agreeable times and locations for such consultation and advice, including to review progress in achieving said plans. The Company agrees to give due consideration to the advice given and any proposals made by the Shareholder.

Section 3.02. Confidentiality. (a) The Shareholder agrees that Confidential Information furnished and to be furnished to it has been and may in the future be made available in connection with the Shareholder’s investment in the Company. The Shareholder agrees that, in its capacity as a shareholder of the Company, it shall use, and that it shall cause any Person to whom Confidential Information is disclosed pursuant to clause (i) below to use, the Confidential Information only in connection with its investment in the Company and not for any other purpose (including to disadvantage competitively the Company or any of its Affiliates). The Shareholder further acknowledges and agrees that it shall not disclose any Confidential Information to any Person, except that Confidential Information may be disclosed:

(i) to the Shareholder’s Representatives in the normal course of the performance of their duties or to any financial institution providing credit to such Shareholder;

(ii) to the extent required by applicable law, rule or regulation (including complying with any oral or written questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process to which the Shareholder is subject; provided that the Shareholder agrees to give the Company prompt notice of such request(s), to the extent practicable, so that the Company may seek an appropriate protective order or similar relief (and the Shareholder shall cooperate with such efforts by the Company, and shall in any event make only the minimum disclosure required by such law, rule or regulation));

(iii) to any regulatory authority to which the Shareholder or any of its Affiliates is subject; provided that such authority is advised of the confidential nature of such information; or

(iv) if the prior written consent of the Board shall have been obtained.

 

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Nothing contained herein shall prevent the use (subject, to the extent possible, to a protective order) of Confidential Information in connection with the assertion or defense of any claim by or against the Company or the Shareholder.

(b) “Confidential Information” means any information concerning the Company or any Persons that are or become its Subsidiaries or the financial condition, business, operations or prospects of the Company or any such Persons in the possession of or furnished to the Shareholder (including by virtue of its present or former right to designate a director of the Company); provided that the term “Confidential Information” does not include information that (i) becomes known to the public through no fault of the Shareholder or its directors, officers, employees, stockholders, members, partners, agents, counsel, investment advisers or other representatives (all such persons being collectively referred to as “Representatives”); (ii) was available or becomes available to the Shareholder before, on or after the date hereof, without restriction, from a source other than the Company, which source is (at the time of receipt of the relevant information) not, to the best of the Shareholder’s knowledge, bound by a confidentiality agreement with (or other confidentiality obligation to) the Company or another Person; or (iii) is independently developed by the Shareholder without violating any confidentiality agreement with or other obligation of secrecy to the Company, and without reference to or use of any Confidential Information.

Section 3.03. Conflicting Agreements. Each of the Company and the Shareholder represents and agrees that it shall not grant any proxy or enter into or agree to be bound by any voting trust or agreement with respect to the Company Securities, or enter into any agreement or arrangement of any kind with any Person with respect to any Company Securities, in each case that is inconsistent with the provisions of this Agreement. Each of the Company and the Shareholder agree that nothing hereunder shall require the Company to take any action that would breach the Articles of Association or applicable law and, to the extent of any inconsistency between this Agreement and the Articles of Association, the terms of the Articles of Association shall prevail.

Section 3.04. Corporate Opportunities. To the fullest extent permitted by applicable law, the Company, on behalf of itself and its Subsidiaries, waives and renounces any right, interest or expectancy of the Company and/or its Subsidiaries in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to or business opportunities of which the Shareholder or any of its officers, directors, agents, shareholders, members, partners, Affiliates and Subsidiaries (other than the Company and its Subsidiaries) (each, a “Specified Party”) gain knowledge, even if the opportunity is competitive with the business of the Company or its Subsidiaries or one that the Company or its Subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so and each such Specified Party shall have no duty (statutory, fiduciary, contractual or otherwise) to communicate or offer such business opportunity to the Company and, to the fullest extent permitted by applicable law, shall not be liable to the Company or any of its Subsidiaries for breach of any statutory, fiduciary, contractual or other duty, as a director or otherwise, by reason of the fact that such Specified Party pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present or communicate such business opportunity, or information regarding such business opportunity, to the Company or its Subsidiaries. Notwithstanding anything in

 

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this Section 3.04 to the contrary, a Specified Party who is a director of the Company and who is offered a business opportunity for the Company or its Subsidiaries in his or her capacity solely as a director of the Company (a “Directed Opportunity”) shall be obligated to communicate such Directed Opportunity to the Company; provided, however, that all of the protections of this Section 3.04 shall otherwise apply to the Specified Parties with respect to such Directed Opportunity, including the ability of the Specified Parties to pursue or acquire such Directed Opportunity, directly or indirectly, or to direct such Directed Opportunity to another person.

Section 3.05. Stockholder Capacity. Notwithstanding anything to the contrary, nothing in this Agreement shall limit or restrict any party from discharging any fiduciary duty, if any, and nothing herein shall be interpreted to the contrary. This Agreement shall apply to the Shareholder solely in the Shareholder’s capacity as a holder or beneficial owner of voting securities of the Company. The Shareholder does not make any agreement or understanding in this Agreement in the Shareholder’s capacity as a director or officer of the Company or any of its Subsidiaries (if the Shareholder holds such office).

ARTICLE 4

MISCELLANEOUS

Section 4.01. Binding Effect; Assignability; Benefit. (a) Except as otherwise provided herein, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and permitted assigns. If the Shareholder ceases to beneficially own any Company Securities, it shall cease to be bound by the terms hereof (other than Sections 3.02, 4.02, 4.05, 4.06, 4.07, 4.09 and 4.10).

(b) Neither the Company nor the Shareholder shall assign or transfer all or any part of this Agreement without the prior written consent of the other party; provided, however, that the Shareholder shall be entitled to assign, in whole or in part, to any of its Permitted Assigns without such prior written consent. Any such Permitted Assignee that shall become a party to this Agreement shall (unless already bound hereby) execute and deliver to the Company an agreement to be bound by this Agreement in the form of Exhibit A hereto and shall thenceforth be deemed a “Shareholder.”

(c) If the spouse of the Shareholder is not a party to this Agreement and possesses or obtains an interest in such Shareholder’s Company Securities, including by reason of the application of the community property laws of any jurisdiction, such Shareholder shall promptly cause such spouse to (i) execute a Joinder Agreement and be bound by and subject to the terms of this Agreement as Shareholder, and (ii) deliver such Joinder Agreement to the Shareholder and the Company.

(d) Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the parties hereto, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

 

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Section 4.02. Notices. All notices, requests and other communications to any party shall be in writing and shall be delivered in person, mailed by certified or registered mail, return receipt requested, or sent by facsimile transmission or email transmission so long as receipt of such email is requested and received:

if to the Company to:

Nu Holdings Ltd.

c/o Campbells Corporate Services Limited

Floor 4, Willow House, Cricket Square, KY1-9010

Grand Cayman, Cayman Islands

Attention: Legal Department

Email: [***]

with a copy to (which copy shall not constitute notice):

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

Attention: Byron B. Rooney

Fax: (212) 701-5658

Email: [email protected]

if to the Shareholder, to:

Rua California Ltd.

c/o Campbells Corporate Services Limited

Floor 4, Willow House, Cricket Square, KY1-9010

Grand Cayman, Cayman Islands

Attention: David Vélez Osorno

Email: [***]

All notices, requests and other communications (including those sent by electronic mail) shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt. Any notice, request or other written communication sent by facsimile transmission shall be confirmed by certified or registered mail, return receipt requested, posted within one Business Day, or by personal delivery, whether courier or otherwise, made within two Business Days after the date of such facsimile transmissions.

Any Permitted Assignee that becomes a Shareholder shall provide its address, fax number and email address to the Company.

Section 4.03. Term; Waiver; Amendment. (a) This Agreement shall terminate on the earlier to occur of: (i) such time as the Shareholder and its Affiliates collectively cease to beneficially own at least 5% of the Total Voting Power; (ii) the Shareholder and its Affiliates collectively cease to beneficially own any Company Securities; and (iii) upon the delivery of a written notice by the Shareholder to the Company requesting that this Agreement terminate (in each case, other than Sections 3.02, 4.02, 4.05, 4.06, 4.07, 4.09 and 4.10).

 

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(b) This Agreement may be amended, waived or otherwise modified only by a written instrument executed by the parties hereto. In addition, any party may waive any provision of this Agreement with respect to itself by an instrument in writing executed by the party against whom the waiver is to be effective. Except as provided in the preceding sentences, no action taken pursuant to this Agreement, including any investigation by or on behalf of any party, will be deemed to constitute a waiver by the party taking such action of compliance with any covenants or agreements contained herein. The waiver by any party hereto of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach.

Section 4.04. Fees and Expenses. All costs and expenses incurred in connection with the preparation of this Agreement, or any amendment or waiver hereof, and the transactions contemplated hereby shall be paid by the party incurring such costs or expenses.

Section 4.05. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Cayman Islands.

Section 4.06. Jurisdiction. Each party hereto submits to the non-exclusive jurisdiction of the Cayman Islands courts for the purpose of any action arising out of or in relation to this Agreement. Each party agrees that, in any such action, it will not contest jurisdiction on the grounds that the Cayman Islands courts are an inconvenient forum or otherwise.

Section 4.07. Specific Enforcement. Each party hereto acknowledges that the remedies at law of the other parties for a breach or threatened breach of this Agreement would be inadequate and, in recognition of this fact, any party to this Agreement, without posting any bond, and in addition to all other remedies that may be available, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy that may then be available.

Section 4.08. Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com)) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective as delivery of a manually executed counterpart of this Agreement. Each party hereto represents that it has undertaken commercially reasonable steps to verify the identity of each individual person executing any such counterparts via electronic signature on behalf of such party and has and will maintain sufficient records of the same. This Agreement shall become effective immediately prior to the closing of the IPO on the IPO Date; provided, that this Agreement shall be of no force and effect if the IPO has not been consummated within thirty (30) Business Days from the date of this Agreement. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).

 

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Section 4.09. Entire Agreement. Together with the Articles of Association, this Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. There are no agreements, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein and in the Articles of Association. This Agreement, together with the Articles of Association, supersedes all other prior agreements and understandings between the parties with respect to such subject matter.

Section 4.10. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner so that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

[Signature pages follow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized directors or officers as of the day and year first above written.

 

THE COMPANY:
NU HOLDINGS LTD.
By:		/s/ Douglas Leone
		Name:		Douglas Leone
		Title:		Director
THE SHAREHOLDER:
RUA CALIFORNIA LTD.
By:		/s/ David Vélez Osorno
		Name:		David Vélez Osorno
		Title:		Director
DAVID VÊLEZ OSORNO
/s/ David Vélez Osorno

[Signature Page to Shareholder’s Agreement]

 

EXHIBIT A

JOINDER TO SHAREHOLDER’S AGREEMENT

This Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the undersigned (the “Joining Party”) in accordance with the Shareholder’s Agreement dated as of November 29, 2021 (as amended, amended and restated or otherwise modified from time to time, the “Shareholder’s Agreement”). Capitalized terms used, but not defined, herein shall have the meaning ascribed to such terms in the Shareholder’s Agreement.

The Joining Party hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to the Shareholder’s Agreement as of the date hereof and shall have all of the rights and obligations of a “Shareholder” thereunder as if it had executed the Shareholder’s Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Shareholder’s Agreement.

IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written below.

Date: ___________ ___, ______

 

[NAME OF JOINING PARTY]
By:
		Name:
		Title:

Address for Notices:

 

Acknowledged by:
NU HOLDINGS LTD.
By:
		Name:
		Title:

 

 

Exhibit 10.1

DATED ____________________

(1) NU HOLDINGS LTD.

and

(2) [_______]

 

INDEMNIFICATION AGREEMENT

 

 

 

 

Floor 4, Willow House, Cricket Square

Grand Cayman KY1-9010, Cayman Islands

www.campbellslegal.com

15531-24848

 

THIS AGREEMENT is executed as a Deed on the _____ day of ______________________

BETWEEN

 

(1)	NU HOLDINGS LTD., an exempted company incorporated under the laws of the Cayman Islands whose registered office is at Campbells Corporate Services Limited, Floor 4, Willow House, Cricket Square, Grand Cayman KY1-9010, Cayman Islands (the “Company”); and

 

(2)	____________ whose address is ______________________ (“Indemnitee”).

WHEREAS

 

(A)	Indemnitee performs a valuable service to the Company.

 

(B)	The Company’s Articles of Association (“Articles”) provide for the indemnification of the officers, agents and directors of the Company out of the assets of the Company in certain circumstances.

 

(C)	The Articles and the Companies Act (as revised) of the Cayman Islands by their non-exclusive nature, permit contracts between the Company and the officers or directors of the Company with respect to indemnification of such officers or directors.

 

(D)	In order to induce Indemnitee to continue their Corporate Status, the Company has determined and agreed to enter into this contract with Indemnitee.

NOW IT IS HEREBY AGREED as follows:

 

1.	DEFINITIONS

For purposes of this Agreement:

“Corporate Status” describes the status of a person who is or was a director, officer, employee, partner, agent or fiduciary of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the request of the Company.

“Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

“Enterprise” shall mean the Company and any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary.

 

“Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding.

“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

“Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an officer or director of the Company, by reason of any action taken by him or of any inaction on his part while acting as an officer or director of the Company, or by reason of the fact that he is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise; in each case whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement; including one pending on or before the date of this Agreement, but excluding one initiated by an Indemnitee pursuant to Section 8 of this Agreement to enforce his rights under this Agreement.

 

 

2.	INDEMNITY OF INDEMNITEE

The Company hereby agrees to hold harmless and indemnify Indemnitee to the full extent authorised or permitted by applicable law. In furtherance of the foregoing indemnification, and without limiting the generality thereof:

 

(a)

Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 2(a) if, by reason of his Corporate Status (as hereinafter defined), he is, or is threatened to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 2(a), Indemnitee shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him, or on his behalf, in connection with such Proceeding or any claim, issue or matter therein, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause to believe his conduct was unlawful.

 

(b)

Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 2(b) if, by reason of his Corporate Status, he is, or is threatened to be made, a party to or participant in any Proceeding brought by or in the right of the Company. Pursuant to this Section 2(b), Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by him, or on his behalf, in connection with such Proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company; provided, however, if applicable law so provides, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Company unless and to the extent that a court of competent jurisdiction shall determine that such indemnification may be made.

 

(c)

Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, he shall be indemnified to the maximum extent permitted by law against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

 

 

(d)

Indemnification of Appointing Shareholder. If (i) Indemnitee is or was affiliated with one or more venture capital funds that has invested in the Company (an “Appointing Stockholder”), and (ii) the Appointing Stockholder is, or is threatened to be made, a party to or a participant in any Proceeding, and (iii) the Appointing Stockholder’s involvement in the Proceeding (A) arises primarily out of, or relates to, any action taken by the Company that was approved by the Company’s Board of Directors, and (B) arises out of facts or circumstances that are the same or substantially similar to the facts and circumstances that form the basis of claims that have been, could have been or could be brought against the Indemnitee in a Proceeding, regardless of whether the legal basis of the claims against the Indemnitee and the Appointing Stockholder are the same or similar, then the Appointing Stockholder shall be entitled to all of the indemnification rights and remedies under this Agreement pursuant to this Agreement as if the Appointing Stockholder were the Indemnitee. The rights provided to the Appointing Stockholder under this Section 2 shall (x) be suspended during any period during which the Appointing Stockholder does not have a representative on the Company’s Board of Directors, and (y) terminate on an initial public offering of the Company’s Common Stock; provided, however, that in the event of any such suspension or termination, the Appointing Stockholder’s rights to indemnification will not be suspended or terminated with respect to any Proceeding based in whole or in part on facts and circumstances occurring at any time prior to such suspension or termination regardless of whether the Proceeding arises before or after such suspension or termination. The Company and Indemnitee agree that the Appointing Stockholder is an express third party beneficiary of the terms of this Section 2(d).

 

3.	ADDITIONAL INDEMNITY

In addition to, and without regard to any limitations on, the indemnification provided for in Section 2 of this Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee to the full extent authorised or permitted by applicable law against all Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or on his behalf if, by reason of his Corporate Status, he is, or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company, including, without limitation, all liability arising out of the negligence or active or passive wrongdoing of Indemnitee). The only limitation that shall exist upon the Company’s obligations pursuant to this Agreement shall be that the Company shall not be obligated to make any payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful under applicable law.

 

 

4.	CONTRIBUTION IN THE EVENT OF JOINT LIABILITY

 

(a)

Whether or not the indemnification provided in Sections 2 and 3 hereof is available, in respect of any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall pay to the full extent authorised or permitted by applicable law, in the first instance, the entire amount of any judgment or settlement of such action, suit or proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee.

 

(b)

Without diminishing or impairing the obligations of the Company set forth in the preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall to the full extent authorised or permitted by applicable law contribute to the amount of expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such action, suit or proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to applicable law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which applicable law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.

 

 

(c)

The Company hereby agrees to fully indemnify and hold Indemnitee harmless to the full extent authorised or permitted by applicable law from any claims of contribution which may be brought by officers, directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.

 

5.	INDEMNIFICATION FOR EXPENSES OF A WITNESS

Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.

 

6.	ADVANCEMENT OF EXPENSES

Notwithstanding any other provision of this Agreement, the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within ten (10) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 6 shall be unsecured and interest free. Notwithstanding the foregoing, the obligation of the Company to advance Expenses pursuant to this Section 6 shall be subject to the condition that, if, when and to the extent that the Company determines that Indemnitee would not be permitted to be indemnified under applicable law (including for the avoidance of doubt, in the event that a final non appealable judgment is given against Indemnitee which finds them to have acted dishonestly, fraudulently or with wilful default), the Company shall be entitled to be reimbursed, within thirty (30) days of such determination, by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified, any determination made by the Company that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advance of Expenses until a final judicial determination is made with respect thereto (and as to which all rights of appeal therefrom have been exhausted or lapsed).

 

 

7.	PROCEDURES AND PRESUMPTIONS FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION

It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as favorable as may be permitted under the laws and public policy of the Cayman Islands. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:

 

(a)

To obtain indemnification (including, but not limited to, the advancement of Expenses and contribution by the Company) under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification.

 

(b)

Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 7(a) hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case by a majority vote of the Disinterested Directors.

 

(c)

In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.

 

(e)

Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise (as hereinafter defined) in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 7(e) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.

 

 

(f)

If the person, persons or entity empowered or selected under Section 7 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making such determination with respect to entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 7(f) shall not apply if the determination of entitlement to indemnification is to be made by the members of the Company pursuant to Section 7(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board of Directors or the Disinterested Directors, if appropriate, resolve to submit such determination to the members of the Company for their consideration at an annual meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of members of the Company is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat.

 

(g)

Indemnitee shall use best endeavours to assist the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board of Directors of the Company or member of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.

 

 

(h)

The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.

 

8.	REMEDIES OF INDEMNITEE

 

(a)

In the event that (i) a determination is made pursuant to Section 7 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 6 of this Agreement, (iii) no determination of entitlement to indemnification is made pursuant to Section 7(b) of this Agreement within 90 days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten (10) days after receipt by the Company of a written request therefor or (v) payment of indemnification is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 7 of this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the Cayman Islands of his entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 8(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication.

 

(b)

In the event that a determination shall have been made pursuant to Section 7(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 8 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 7(b).

 

 

(c)

If a determination shall have been made pursuant to Section 7(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 8, absent a prohibition of such indemnification under applicable law.

 

(d)

In the event that Indemnitee, pursuant to this Section 8, seeks a judicial adjudication of his rights under, or to recover damages for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by the Company, the Company shall pay on his behalf, in advance, any and all expenses (of the types described in the definition of Expenses in this Agreement) actually and reasonably incurred by him in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery, provided that Indemnitee shall reimburse the Company for any such payments or advances in the event that a final non appealable judgment is given against Indemnitee which finds them to have acted dishonestly, fraudulently or with wilful default. Notwithstanding the foregoing, nothing in this Agreement shall require Indemnitee to seek recovery under any such insurance policy.

 

(e)

The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 8 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement.

 

9.	NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION

 

(a)

The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Articles, any agreement, a vote of members of the Company, a resolution of directors or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the law, whether by statute or judicial decision, permits greater indemnification than would be afforded currently under the Articles and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

 

 

 

(b)

To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Company shall procure that the Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies to the full extent authorised or permitted by applicable law; provided, however, that nothing in this Agreement shall require Indemnitee to seek recovery under any such insurance, indemnification or advancement or otherwise. For the avoidance of doubt, nothing herein shall obligate the Company to purchase such insurance from a third-party provider, nor shall it prohibit the Company from self-insuring with respect to such policies.

 

(c)

In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee (other than against the Fund Indemnitors), who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

 

(d)

The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.

 

10.	EXCEPTION TO RIGHT OF INDEMNIFICATION

Notwithstanding any other provision of this Agreement, Indemnitee shall not be entitled to indemnification or advancement under this Agreement:

 

(a)

with respect to any Proceeding brought by Indemnitee, or any claim therein, unless (a) the bringing of such Proceeding or making of such claim shall have been approved by the Board of Directors of the Company or (b) such Proceeding is being brought by Indemnitee to assert, interpret or enforce his rights under this Agreement; and

 

(b)

where Indemnitee has acted dishonestly, fraudulently or with willful default.

For the avoidance of doubt, references in this Agreement to fraud or willful default shall mean a final non-appealable finding to such effect by a competent court in relation to the conduct of the relevant party.

 

 

11.	DURATION OF AGREEMENT

All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is an officer or director of the Company (or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) and thereafter if the Indemnitee shall be subject to any Proceeding (or any proceeding commenced under Section 8 hereof) by reason of his Corporate Status, whether or not he is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.

 

12.

SECURITY

To the extent requested by Indemnitee and approved by the Board of Directors of the Company, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee.

 

13.	ENFORCEMENT

 

(a)

The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer or director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as an officer or director of the Company.

 

(b)

This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.

 

 

14.	SEVERABILITY

If any provision or provisions of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, illegal or otherwise unenforceable for any reason whatsoever:

 

(a)

the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law;

 

(b)

the invalidity or unenforceability of any provision hereof as to either Indemnitee or Appointing Shareholder shall in no way affect the validity or enforceability of any provision hereof as to the other; and

 

(c)

to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby. Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee and Appointing Shareholder indemnification rights to the fullest extent permitted by applicable laws. In the event any provision hereof conflicts with any applicable law, such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.

 

15.	MODIFICATION AND WAIVER

No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.

 

16.	NOTICE BY INDEMNITEE

Indemnitee agrees within ten (10) business days to notify the Company in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company.

 

 

17.

NOTICES

All notices, requests, demands and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, (ii) mailed by certified or registered mail with postage prepaid, on the tenth business day after the date on which it is so mailed, or (iii) two (2) days after deposit with an internationally recognised overnight courier, specifying next or second day delivery, with written verification of receipt. All communications shall be sent to the respective parties at the addresses set forth on the signature pages attached hereto (or at such other addresses as shall be specified by notice given in accordance with this Section 17).

 

18.	IDENTICAL COUNTERPARTS

This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

 

19.

HEADINGS

The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

 

20.	GOVERNING LAW AND JURISDICTION

The parties agree that this Agreement and any non-contractual obligations arising from or in connection with it shall be governed by, and construed and enforced in accordance with, the laws of the Cayman Islands without application of the conflict of laws principles thereof. The Parties irrevocably agree that the Cayman Islands courts are to have exclusive jurisdiction over any dispute (a) arising from or in connection with this Agreement or (b) relating to any non-contractual obligations arising from or in connection with this Agreement.

 

 

21.

GENDER

Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.

[LEFT INTENTIONALLY BLANK]

 

IN WITNESS whereof the parties hereto have caused this Agreement to be executed as a Deed the day and year first above written.

 

EXECUTED and DELIVERED as a DEED				)
By		)
For and on behalf of				)
NU HOLDINGS LTD.				)
EXECUTED and DELIVERED as a DEED				)
By		)
		)
		)
in the presence of:
Witness

 

Exhibit 10.2

NU HOLDINGS LTD. 2020 OMNIBUS INCENTIVE PLAN

The Company sets forth herein the terms and conditions of the Plan. The Board may adopt such supplements to the Plan as it deems necessary or appropriate to permit the grants of Awards also to foreign nationals or individuals who are employed outside of Brazil or outside of the United States or to recognize differences in local law, tax policy or custom. Any such supplement adopted by the Board will be incorporated into and deemed a part of the Plan.

 

1.

PURPOSE

The Plan is intended to enhance the Company’s and its Subsidiaries’ ability to attract and retain employees, Consultants and Non-Employee Directors, and to motivate such employees, Consultants and Non-Employee Directors to serve the Company and its Subsidiaries and to expend maximum effort to improve the business results and earnings of the Company, by providing to such persons an opportunity to acquire or increase a direct proprietary interest in the operations and future success of the Company. To this end, the Plan provides for the grant of non-qualified share options and restricted share units. Any of these awards may, but need not, be made as performance incentives to reward attainment of performance goals in accordance with the terms and conditions of the Plan.

 

2.	DEFINITIONS

For purposes of interpreting the Plan and related documents (including Award Agreements), the following definitions will apply to the maximum extent permitted under applicable law:

“Affiliate” means any company or other trade or business that “controls,” is “controlled by” or is “under common control with” the Company within the meaning of Rule 405 of Regulation C under the Securities Act, including any Subsidiary.

“Amendment Date” means the closing of the initial public offering of the Shares.

“Annual Incentive Award” means a cash-based Performance Award with a performance period that is the Company’s fiscal year or other 12-month (or shorter) performance period as specified under the terms and conditions of the Award as approved by the Board.

“Award” means a grant, under the Plan, of an Option, RSUs or a Substitute Award.

“Award Agreement” means a written agreement between the Company and a Grantee, or notice from the Company or a Subsidiary to a Grantee that evidences and sets out the terms and conditions of an Award.

“Beneficial Owner” will have the meaning assigned to such term in Rules 13d-3 and 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular Person, that Person will be deemed to have beneficial ownership of all securities that the Person has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have corresponding meanings.

“Board” means the Board of Directors of the Company.

 

“Business Combination” means the consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company.

“Change in Control” means, except as provided otherwise by the Board, the occurrence of any of the following events:

(1)    The acquisition by any Person of Beneficial Ownership of more than 50% of the outstanding voting power, provided that (i) any acquisition directly from the Company, (ii) any acquisition by the Company or any of its Subsidiaries, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any of its Subsidiaries or (iv) any acquisition by any corporation under a transaction that complies with clauses (i), (ii) and (iii) of paragraph (2) below will not constitute a Change in Control for purposes of this paragraph.

(2)    Consummation of a Business Combination, unless after the Business Combination (i) all or substantially all of the Persons who were the Beneficial Owners, respectively, of the outstanding shares and outstanding voting securities immediately before the Business Combination own, directly or indirectly, more than 50% of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors of the Company, as the case may be, of the entity resulting from the Business Combination (including an entity that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately before such Business Combination, of the outstanding voting securities (provided that for purposes of this clause (i) any ordinary shares, common shares or voting securities of such resulting entity received by such Beneficial Owners in such Business Combination other than as the result of such Beneficial Owners’ ownership of outstanding shares or outstanding voting securities immediately before such Business Combination will not be considered to be owned by such Beneficial Owners for the purposes of calculating their percentage of ownership of the outstanding ordinary shares, common shares and voting power of the resulting entity), (ii) no Person (excluding any entity resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such entity resulting from the Business Combination) becomes the Beneficial Owner, directly or indirectly, of 30% or more of the combined voting power of the then outstanding voting securities of such entity resulting from the Business Combination unless such Person owned 30% or more of the outstanding shares or outstanding voting securities immediately before the Business Combination and (iii) at least a majority of the members of the Board of the entity resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or the action of the Board, providing for such Business Combination. For purposes of this paragraph, any Person who acquires outstanding voting securities of the entity resulting from the Business Combination by virtue of ownership, before such Business Combination, of outstanding voting securities of both the Company and the entity or entities with which the Company is combined will be treated as two Persons after the Business Combination, who will be treated as owning outstanding voting securities of the entity resulting from the Business Combination by virtue of ownership, before such Business Combination of, respectively, outstanding voting securities of the Company, and of the entity or entities with which the Company is combined.

(3)    Approval by the Shareholders of a complete liquidation or dissolution of the Company.

Solely to the extent required by Code § 409A, an event described above will not constitute a Change in Control for purposes of the payment (but not vesting) terms and conditions of any Award subject to Code § 409A unless such event also constitutes a change in ownership or effective control of the Company or a change in the ownership of a substantial portion of the Company’s assets within the meaning of Code § 409A.

 

“Code” means the United States Internal Revenue Code of 1986, as amended.

“Committee” means the Compensation Committee of the Board or any committee or other person or persons designated by the Board to administer the Plan. The Board will cause the Committee to satisfy the applicable requirements of any securities exchange on which the Ordinary Shares may then be listed. For purposes of Awards to Grantees who are subject to Exchange Act § 16, the “Committee” means all of the members of the Committee who are “non-employee directors” within the meaning of Rule 16b-3 under the Exchange Act. All references in the Plan to the Board will mean such Committee or the Board.

“Company” means Nu Holdings Ltd.

“Consultant” means any person, except an employee or Non-Employee Director, engaged by the Company or any Subsidiary, to render personal services to such entity, including as an advisor, under a written agreement and who qualifies as a consultant or advisor under Form S-8.

“Detrimental Conduct” means, as determined by the Company, the Grantee’s serious misconduct or unethical behavior, including (1) any violation by the Grantee of a restrictive covenant agreement that the Grantee has entered into with the Company or an Affiliate (covering, for example, confidentiality, non-competition, non-solicitation and non-disparagement), (2) the commission of a criminal act by the Grantee, whether or not performed in the workplace, that subjects, or if generally known would subject, the Company or an Affiliate to public ridicule or embarrassment or other improper or intentional conduct by the Grantee causing reputational harm to the Company, an Affiliate or a client or former client of the Company or an Affiliate, (3) the Grantee’s breach of a fiduciary duty owed to the Company or an Affiliate or a client or former client of the Company or an Affiliate, (4) the Grantee’s intentional violation or grossly negligent disregard of the Company’s or an Affiliate’s policies, rules or procedures or (5) the Grantee taking or maintaining trading positions that result in a need to restate financial results in a subsequent reporting period or that result in a significant financial loss to the Company or its Affiliates.

“Disability” will be defined as that term is defined in the Grantee’s offer letter or other applicable employment agreement. If there is no such definition, “Disability” means, as determined by the Company and unless otherwise provided in the applicable Award Agreement, the Grantee is unable to perform each of the essential duties of the Grantee’s position by reason of a medically determinable physical or mental impairment that is potentially permanent in character or that can be expected to last for a continuous period of not less than 12 months.

“Effective Date” means January 1, 2020.

“Exchange Act” means the United States Securities Exchange Act of 1934.

“Fair Market Value” of a Share as of a particular date means the average closing price of a Share as quoted on such exchange or other comparable reporting system for the 30 consecutive trading days ending on the last business day immediately preceding the applicable date or any other reasonable period as determined by the Company or the Board. Notwithstanding the foregoing, if the Board determines that an alternative definition of Fair Market Value should be used in connection with the grant, exercise, vesting, settlement or payout of any Award, it may specify such alternative definition in the applicable Award Agreement. Such alternative definition may include a price that is based upon a valuation report prepared by an independent and specialized appraisal firm or, in the case of Shares that are listed on a securities exchange, the opening, actual, high, low or average selling prices of a Share on the applicable securities exchange on the given date, the trading date preceding the given date, the trading date next succeeding the given date, or an average of trading days, as the case may be.

 

“Family Member” means a person who is a spouse, former spouse, child, stepchild, grandchild, parent, stepparent, grandparent, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother, sister, brother-in-law or sister-in-law, including adoptive relationships, of the applicable individual, any person sharing the applicable individual’s household (other than a tenant or employee), a trust in which any one or more of these persons have more than 50% of the beneficial interest, a foundation in which any one or more of these persons (or the applicable individual) control the management of assets and any other entity in which one or more of these persons (or the applicable individual) own more than 50% of the voting interests.

“GAAP” means U.S. Generally Accepted Accounting Principles.

“Grant Date” means the latest to occur of (1) the date as of which the Board approves an Award, (2) the date on which the recipient of an Award first becomes eligible to receive an Award under Section 6 or (3) such other date as may be specified by the Board in the Award Agreement.

“Grantee” means a person who receives or holds an Award.

“Non-Employee Director” means a member of the Board who is not an employee.

“Nu Holdings Share Option Plan” means the Nu Holdings Ltd. Share Option Plan adopted on October 17, 2016, lastly amended effective August 30, 2021, and as it may be amended from time to time.

“Ordinary Share” means a Class A Ordinary share of the Company.

“Option” means a non-qualified option to purchase one or more Shares under the Plan. No Option issued under the Plan will be considered an incentive option within the meaning of Code § 422.

“Option Price” means the exercise price for each Share subject to an Option.

“Performance Award” means an Award made subject to the attainment of performance goals (as described in Section 11) over a performance period established by the Board, and includes an Annual Incentive Award.

“Person” means a person as defined in Exchange Act § 13(d)(3).

“Plan” means this Nu Holdings Ltd. 2020 Omnibus Incentive Plan.

“Restricted Period” will have the meaning set forth in Section 9.1.

 

“RSU” means a bookkeeping entry representing the equivalent of Shares, awarded to a Grantee under Section 9.

“Securities Act” means the United States Securities Act of 1933.

“Separation from Service” means the termination of the applicable Grantee’s employment with, and performance of services for, the Company and each Affiliate. Unless otherwise determined by the Company, if a Grantee’s employment or service with the Company or an Affiliate terminates but the Grantee continues to provide services to the Company or an Affiliate in a non-employee director capacity or as an employee, officer or consultant, as applicable, such change in status will not be deemed a Separation from Service. A Grantee employed by, or performing services for, an Affiliate or a division of the Company or an Affiliate will not be deemed to incur a Separation from Service if such Affiliate or division ceases to be an Affiliate or division of the Company, as the case may be, and the Grantee immediately thereafter becomes an employee of (or service provider to) or member of the board of directors of the Company or an Affiliate or a successor company or an affiliate or subsidiary thereof. Approved temporary absences from employment because of illness, vacation or leave of absence and transfers among the Company and its Affiliates will not be considered Separations from Service. Notwithstanding the foregoing, with respect to any Award that constitutes nonqualified deferred compensation under Code § 409A, “Separation from Service” will mean a “separation from service” as defined under Code § 409A.

“Service Provider” means an employee, officer, Non-Employee Director or Consultant of the Company or an Affiliate.

“Share” means one Class A Ordinary Share of the Company or of its Affiliates.

“Shareholder” means a shareholder of the Company.

“Subsidiary” means any corporation, partnership, joint venture, affiliate or other entity in which the Company owns more than 50% of the voting shares or voting ownership interest, as applicable, or any other business entity designated by the Board as a Subsidiary for purposes of the Plan.

“Substitute Award” means any Award granted in assumption of or in substitution for an award of a company or business acquired by the Company or a Subsidiary or with which the Company or a Subsidiary combines.

“Termination Date” means the date that is ten years after the Effective Date, unless the Plan is earlier terminated by the Board under Section 5.2.

 

3.	ADMINISTRATION OF THE PLAN

3.1.    General. The Board will have such powers and authorities related to the administration of the Plan as are consistent with the Company’s Articles of Association and applicable law. The Board will have the power and authority to delegate its powers and responsibilities under the Plan to the Committee, which will have full authority to act in accordance with its charter, and with respect to the authority of the Board to act under the Plan, all references to the Board will be deemed to include a reference to the Committee, to the extent such power or responsibilities have been delegated. Except as specifically provided in Section 12 or as otherwise may be required by applicable law, regulatory requirement, or the Articles of Association of the Company, the Board will have full power and authority to take all actions and to make all determinations required or provided for under the Plan, any Award or any Award Agreement, and will have full power and authority to take all such other actions and make all such other determinations not inconsistent with the specific terms and conditions of the Plan that the Board deems to be necessary or appropriate to the administration of the Plan. The Committee will administer the Plan, provided that the Board will retain the right to exercise the authority of the Committee to the extent consistent with applicable law and the applicable requirements of any securities exchange on which the Ordinary Shares may then be listed. The interpretation and construction by the Board of the Plan, any Award or any Award Agreement will be final, binding and conclusive. Without limitation, the Board will have full and final authority, subject to the other terms and conditions of the Plan, to (1) designate Grantees, (2) determine the type or types of Awards to be made to a Grantee, (3) determine the number of Shares to be subject to an Award, (4) establish the terms and conditions of each Award (including the Option Price of any Option, the nature and duration of any restriction or condition (or provision for lapse thereof) relating to the vesting, exercise, transfer or forfeiture of an Award or the Shares subject thereto, (5) prescribe the form of each Award Agreement and (6) amend, modify or supplement the terms and conditions of any outstanding Award, including the authority, to effectuate the purposes of the Plan, to modify Awards to foreign nationals or individuals who are employed outside of Brazil or the United States or to recognize differences in local law, tax policy or custom.

 

To the extent permitted by applicable law, the Board may delegate its authority as identified in the Plan to any individual or committee of individuals (who need not be directors), including the authority to make Awards to Grantees who are not subject to Exchange Act § 16. To the extent that the Board delegates its authority to make Awards as provided by this Section 3.1, all references in the Plan to the Board’s authority to make Awards and determinations with respect thereto will be deemed to include the Board’s delegate. Any such delegate will serve at the pleasure of, and may be removed at any time by the Board.

3.2.    No Repricing. Notwithstanding any other term or condition of the Plan, the repricing of Options is prohibited without prior approval of the Shareholders. For this purpose, a “repricing” means (1) changing an Option to lower its Option Price, (2) any other action that is treated as a “repricing” under GAAP, (3) repurchasing for cash or canceling an Option at a time when its Option Price is greater than the Fair Market Value of the underlying Shares in exchange for another Award or (4) or any other action that has the same effect as clauses (1), (2) or (3), unless the actions contemplated in clauses (1), (2), (3) or (4) occur in connection with a change in capitalization or similar change under Section 13. A cancellation and exchange under clause (3) would be considered a “repricing” regardless of whether it is treated as a “repricing” under GAAP and regardless of whether it is voluntary on the part of the Grantee.

3.3.    Separation from Service, Clawbacks and Detrimental Conduct.

3.3.1.    Separation from Service. Unless otherwise provided under an Award Agreement and to the extent permitted under applicable law, if a Grantee incurs in a Separation from Service, the Company will annul and cancel the unvested portion of any Award.

3.3.2.    Clawbacks. All awards, amounts or benefits received or outstanding under the Plan will be subject to clawback, cancellation, recoupment, rescission, payback, reduction or other similar action in accordance with any Company clawback or similar policy or any applicable law related to such actions. A Grantee’s acceptance of an Award will be deemed to constitute the Grantee’s acknowledgement of and consent to the Company’s application, implementation and enforcement of any applicable Company clawback or similar policy that may apply to the Grantee, whether adopted before or after the Effective Date, and any applicable law relating to clawback, cancellation, recoupment, rescission, payback or reduction of compensation, and the Grantee’s agreement that the Company may take any actions that may be necessary to effectuate any such policy or applicable law, without further consideration or action.

 

3.3.3.    Detrimental Conduct. Except as otherwise provided by the Board, notwithstanding any other term or condition of the Plan, if a Grantee engages in Detrimental Conduct, whether during the Grantee’s service or after the Grantee’s Separation from Service for any reason, in addition to any other penalties or restrictions that may apply under the Plan, state law or otherwise, the Grantee will forfeit or pay to the Company (1) any and all outstanding Awards granted to the Grantee, including Awards that have become vested or exercisable, (2) any cash or Shares received by the Grantee in connection with the Plan within the 36-month period immediately before the date the Company determines the Grantee has engaged in Detrimental Conduct and (3) the profit realized by the Grantee from the sale or other disposition for consideration of any Shares received by the Grantee in connection with the Plan within the 36-month period immediately before the date the Company determines the Grantee has engaged in Detrimental Conduct.

3.4.    Deferral Arrangement. The Board may permit or require the deferral of any Award payment into a deferred compensation arrangement, subject to such rules and procedures as it may establish and in accordance with Code § 409A, which may include terms and conditions for the payment or crediting of interest or dividend equivalents, including converting such credits into deferred units.

3.5.    No Liability. No member of the Board will be liable for any action or determination made in good faith with respect to the Plan, any Award or Award Agreement.

3.6.    Book Entry. Notwithstanding any other term or condition of the Plan, the Company may elect to satisfy any requirement under the Plan for the delivery of certificates through the use of book-entry.

 

4.	SHARES SUBJECT TO THE PLAN

4.1.    Authorized Number of Shares. Subject to adjustment under Section 13, the total number of Shares authorized to be awarded under the Plan will not exceed 933,760,320. Shares issued under the Plan will consist in whole or in part of authorized but unissued Shares, treasury Shares or Shares purchased on the open market or otherwise, all as determined by the Company from time to time. If, for any reason, the Award encompass the grant of shares from the Affiliates, the total number of Shares authorized to be awarded under the Plan will not exceed 933,760,320.

4.2.    Share Counting.

4.2.1.    General. Each Share granted in connection with an Award, as well as any outstanding award granted under the Nu Holdings Share Option Plan, will be counted as one Share against the limit in Section 4.1, subject to this Section 4.2. Share-based Performance Awards will be counted assuming maximum performance results (if applicable) until such time as actual performance results can be determined.

 

4.2.2.    Cash-Settled Awards. Any Award settled in cash will not be counted as Shares for any purpose under the Plan. Awards will be settled in cash to the extent that it would not implicate the regulatory capital of any of Company’s Affiliates or Subsidiaries.

4.2.3.    Expired or Terminated Awards. If any Award expires or is terminated, surrendered or forfeited, in whole or in part, the unissued Shares covered by that Award will again be available for the grant of Awards. If any award previously granted under the Nu Holdings Share Option Plan expires or is terminated, surrendered or forfeited, in whole or in part, the unissued Shares covered by that award will again be available for the grant of Awards under the Plan. For the avoidance of doubt, the following will not again become available for issuance under the Plan: (i) any Shares withheld in respect of taxes relating to any Award and (ii) any Shares tendered.

4.2.4.    Substitute Awards. In the case of any Substitute Award, such Substitute Award will not be counted against the number of Shares reserved under the Plan.

 

5.	EFFECTIVE DATE, DURATION, AND AMENDMENTS

5.1.    Term. The Plan will be effective as of the Effective Date, provided that it has been approved by the Board and applicable Shareholders. The Plan will terminate automatically on the ten-year anniversary of the Effective Date and may be terminated on any earlier date as provided in Section 5.2.

5.2.    Amendment and Termination of the Plan. The Board may, at any time and from time to time, amend, suspend or terminate the Plan as to any Awards that have not been made. An amendment will be contingent on approval of the Shareholders to the extent stated by the Board, required by applicable law or required by applicable securities exchange listing requirements. Notwithstanding the foregoing, any amendment to Section 3.2 will be contingent on the approval of the Shareholders. No Awards may be granted after the Termination Date. The applicable terms and conditions of the Plan and any terms and conditions applicable to Awards granted before the Termination Date will survive the termination of the Plan and continue to apply to such Awards. No amendment, suspension or termination of the Plan will, without the consent of the Grantee, materially impair rights or obligations under any Award theretofore awarded.

 

6.	AWARD ELIGIBILITY AND LIMITATIONS

6.1.    Service Providers. Awards may be made to any Service Provider as the Board may determine and designate from time to time.

6.2.    Successive Awards. An eligible person may receive more than one Award, subject to such restrictions as are provided in the Plan.

6.3.    Stand-Alone, Additional, Tandem and Substitute Awards. The Board may grant Awards either alone or in addition to, in tandem with, or in substitution or exchange for, any other Award or any award granted under another plan of the Company, any Subsidiary or any business entity to be acquired by the Company or a Subsidiary, or any other right of a Grantee to receive payment from the Company or any Subsidiary. Such additional, tandem and substitute or exchange Awards may be granted at any time. If an Award is granted in substitution or exchange for another Award, the Board will have the right to require the surrender of such other Award in consideration for the grant of the new Award. Subject to Section 3.2, the Board will have the right to make Awards in substitution or exchange for any other award under another plan of the Company, any Subsidiary or any business entity to be acquired by the Company or a Subsidiary. In addition, Awards may be granted in lieu of cash compensation, including in lieu of cash amounts payable under other plans of the Company or any Subsidiary, in which the value of Shares subject to the Award is equivalent in value to the cash compensation.

 

 

7.	AWARD AGREEMENT

Each Award will be evidenced by an Award Agreement, in such forms as the Board will from time to time determine. Without limiting the foregoing, an Award Agreement may be provided in the form of a notice that provides that acceptance of the Award constitutes acceptance of all terms and conditions of the Plan and the notice. Award Agreements granted from time to time or at the same time need not contain similar terms and conditions but will be consistent with the terms and conditions of the Plan.

 

8.	TERMS AND CONDITIONS OF OPTIONS

8.1.    Option Price. The Option Price of each Option will be fixed by the Board and stated in the related Award Agreement. For U.S. taxpayers, the Option Price of each Option (except those that constitute Substitute Awards) will be at least the Fair Market Value on the Grant Date of a Share For non-U.S. taxpayers, the Option Price of each Option will be determined by the Board in its reasonable discretion. In no case will the Option Price of any Option be less than the par value of a Share.

8.2.    Vesting. Subject to Section 8.3, each Option will become exercisable at such times and under such terms and conditions (including performance requirements) as may be determined by the Board and stated in the Award Agreement.

8.3.    Term. Each Option will terminate, and all rights to purchase Shares thereunder will cease, upon the expiration of a period not to exceed ten years from the Grant Date or under such circumstances and on any date before ten years from the Grant Date as may be set forth in the Plan or as may be fixed by the Board and stated in the related Award Agreement.

8.4.    Limitations on Exercise of Option. Notwithstanding any other term or condition of the Plan, in no event may any Option be exercised, in whole or in part, before the date the Plan is approved by the Board and applicable Shareholders as provided in the Plan or after the occurrence of an event that results in termination of the Option.

8.5.    Method of Exercise. An Option that is exercisable may be exercised by the Grantee’s delivery of a notice of exercise to the Company, setting forth the number of Shares with respect to which the Option is to be exercised, accompanied by full payment for the Shares. To be effective, notice of exercise must be made in accordance with procedures established by the Company from time to time.

8.6.    Rights of Holders of Options. Unless otherwise stated in the related Award Agreement, an individual holding or exercising an Option will have none of the rights of a Shareholder (for example, the right to receive cash or dividend payments or distributions attributable to the subject Shares or to direct the voting of the subject Shares) until the Shares covered thereby are fully paid and issued to him. Except as provided in Section 13 or the related Award Agreement, no adjustment will be made for dividends, distributions or other rights for which the record date is before the date of such issuance.

 

8.7.    Nature of the Options. Except as otherwise provided in the applicable Award Agreement, to the extent permitted under applicable law, the provisions of the Plan relating to Options to purchase Shares will have a mercantile nature, be optional, onerous, will not assure any future gains, and will not be interpreted as compensation or salary.

 

9.	TERMS AND CONDITIONS OF RSUS

9.1.    Restrictions. At the time of grant, the Board may establish a period of time (a “Restricted Period”) and any additional restrictions including the satisfaction of corporate or individual performance objectives applicable to an Award of RSUs in accordance with Section 3. Each Award of RSUs may be subject to a different Restricted Period and additional restrictions. RSUs cannot and may not be sold, transferred, assigned, pledged or otherwise encumbered or disposed of during the Restricted Period or before the satisfaction of any other applicable restrictions.

9.2.    Rights of Holders of RSUs.

9.2.1.    Settlement of RSUs. RSUs may be settled in cash or Shares, as determined by the Board and set forth in the Award Agreement. The Award Agreement will also set forth whether the RSUs will be settled within the time period specified for “short term deferrals” under Code § 409A or otherwise within the requirements of Code § 409A, in which case the Award Agreement will specify upon which events such RSUs will be settled.

9.2.2.    Voting and Dividend Rights. Unless otherwise stated in the applicable Award Agreement and subject to Section 15.12, holders of RSUs will not have rights as Shareholders, including no voting or dividend or dividend equivalents rights.

9.2.3.    Creditor’s Rights. A holder of RSUs will have no rights other than those of a general creditor of the Company or its Affiliates. RSUs represent an unfunded and unsecured obligation of the Company of its Affiliates, subject to the applicable Award Agreement.

9.3.    Delivery of Shares. Upon the expiration or termination of any Restricted Period and the satisfaction of any other terms and conditions prescribed by the Board, the restrictions applicable to RSUs settled in Shares will lapse, and, unless otherwise provided in the Award Agreement, appropriate action will be taken to deliver such Shares, free of all such restrictions, to the Grantee or the Grantee’s beneficiary or estate, as the case may be.

 

10.	FORM OF PAYMENT FOR OPTIONS

Payment of the Option Price for an Option will be made in cash or in cash equivalents acceptable to the Company or its Affiliates.

 

11.	TERMS AND CONDITIONS OF PERFORMANCE AWARDS

The right of a Grantee to exercise or receive a grant or settlement of any Award, and the timing thereof, may be subject to such performance terms conditions as may be specified by the Board. The Board may use such business criteria and other measures of performance as it may deem appropriate in establishing any performance terms or conditions.

 

 

12.	REQUIREMENTS OF LAW

12.1.    General. The Company will not be required to sell or issue any Shares under any Award if the sale or issuance of such Shares would constitute a violation by the Grantee, any other individual or the Company of any law or regulation of any governmental authority, including any federal or state securities laws or regulations. If at any time the Company determines that the listing, registration or qualification of any Shares subject to an Award on any securities exchange or under any governmental regulatory body is necessary or desirable as a term or condition of, or in connection with, the issuance or purchase of Shares under the Plan, no Shares may be issued or sold to the Grantee or any other individual exercising an Option unless such listing, registration, qualification, consent or approval will have been effected or obtained free of any terms and conditions not acceptable to the Company, and any delay caused thereby will in no way affect the date of termination of the Award. Specifically, in connection with the Securities Act, upon the exercise of any Option or the delivery of any Shares underlying an Award, unless a registration statement under the Securities Act is in effect with respect to the Shares covered by such Award, the Company will not be required to sell or issue such Shares unless the Board has received evidence satisfactory to it that the Grantee or any other individual exercising an Option may acquire such Shares under an exemption from registration under the Securities Act. The Company may, but will not be obligated to, register any securities covered by the Plan under the Securities Act. The Company will not be obligated to take any affirmative action to cause the exercise of an Option or the issuance of Shares under the Plan to comply with any law or regulation of any governmental authority. As to any jurisdiction that expressly imposes the requirement that an Option will not be exercisable until the Shares covered by such Option are registered or are exempt from registration, the exercise of such Option (under circumstances in which the laws of such jurisdiction apply) will be deemed conditioned upon the effectiveness of such registration or the availability of such an exemption.

12.2.    Rule 16b-3. During any time when the Company has a class of equity security registered under Exchange Act § 12, it is the intent of the Company that Awards and the exercise of Options granted to officers and directors hereunder will qualify for the exemption provided by Rule 16b-3 under the Exchange Act. To the extent that any term or condition of the Plan or action by the Board does not comply with the requirements of Rule 16b-3, it will be deemed inoperative to the extent permitted by law and deemed advisable by the Board, and will not affect the validity of the Plan. If Rule 16b-3 is revised or replaced, the Board may modify the Plan in any respect necessary to satisfy the requirements of, or to take advantage of any features of, the revised exemption or its replacement.

 

13.	EFFECT OF CHANGES IN CAPITALIZATION

13.1.    Changes in Ordinary Shares. If (1) the number of outstanding Shares is increased or decreased or the Shares are changed into or exchanged for a different number or kind of shares or other securities of the Company on account of any recapitalization, reclassification, share split, reverse split, combination of shares, exchange of shares, share dividend or other distribution payable in ordinary shares or other increase or decrease in such Shares effected without receipt of consideration by the Company occurring after the Amendment Date or (2) there occurs any spin-off, split-up, extraordinary cash dividend or other distribution of assets by the Company, (i) the number and kinds of shares for which grants of Awards may be made, (ii) the number and kinds of shares for which outstanding Awards may be exercised or settled and (iii) the performance goals relating to outstanding Awards, will be equitably adjusted by the Company, provided that any such adjustment will comply with Code § 409A. In addition, in the event of any such increase or decease in the number of outstanding shares or other transaction described in clause (2) above, the number and kind of shares for which Awards are outstanding and the Option Price per share of outstanding Options will be equitably adjusted, provided that any such adjustment will comply with Code § 409A. The provision in this Section 13.1 will be applicable to Shares of the Affiliates.

 

13.2.    Change in Control. In the event of a Change of Control, all Ordinary Shares acquired under the Plan and all Awards outstanding on the effective date of the transaction will be treated in the manner described in the definitive transaction agreement (or, if there is no definitive transaction agreement with the Company, in the manner determined by the Board). Such determination does not need to treat all Awards (or all portions of an Award) in an identical manner. The treatment specified in the transaction agreement may include, without limitation, one or more of the following with respect to each outstanding Award:

(1)    Continuation of the Award by the Company (if the Company is the surviving company);

(2)    Assumption of the Award by the surviving company or its parent;

(3)    Substitution by the surviving company or its parent of a new award;

(4)    Cancellation of the Award and a payment to the Grantee of the intrinsic value, if any, of the vested portion of the Award, as determined by the Board of, in cash, cash equivalents or equity, subject to any escrow, holdback, earn-out or similar provisions in the transaction agreement;

(5)    Suspension of the Grantee’s right to exercise the Award during a limited period of time preceding the closing of the transaction if such suspension is administratively necessary to permit the closing of the transaction.

For the avoidance of doubt, the Board has discretion to accelerate, in whole or part, the vesting and exercisability of an Award in connection with a Change of Control, regardless of whether or not such acceleration is contemplated in the applicable Award Agreement.

13.3.    Adjustments. Adjustments under this Section 13 related to Share or other securities of the Company will be made by the Board. No fractional Shares or other securities will be issued under any such adjustment, and any fractions resulting from any such adjustment will be eliminated in each case by rounding downward to the nearest whole Share.

 

14.	NO LIMITATIONS ON COMPANY

The grant of Awards will not affect or limit in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure or to merge, consolidate, dissolve or liquidate or to sell or transfer all or any part of its business or assets.

 

 

15.	TERMS APPLICABLE GENERALLY TO AWARDS

15.1.    Disclaimer of Rights. No term or condition of the Plan or any Award Agreement will be construed to confer on any individual the right to remain in the employ or service of the Company or any Subsidiary, or to interfere in any way with any contractual or other right or authority of the Company either to increase or decrease the compensation or other payments to any individual at any time, or to terminate any employment or other relationship between any individual and the Company. In addition, notwithstanding any other term or condition of the Plan, unless otherwise stated in the applicable Award Agreement, no Award will be affected by any change of duties or position of the Grantee, so long as such Grantee continues to be a Service Provider. The obligation of the Company to pay any benefits under the Plan will be interpreted as a contractual obligation to pay only those amounts described in the Plan, in the manner and under the terms and conditions prescribed in the Plan. The Plan will in no way be interpreted to require the Company to transfer any amounts to a third party trustee or otherwise hold any amounts in trust or escrow for payment to any Grantee or beneficiary under the Plan.

15.2.    Nonexclusivity of the Plan. Neither the adoption of the Plan nor the submission of the Plan to applicable Shareholders for approval will be construed as creating any limitations on the right and authority of the Board to adopt such other incentive compensation arrangements (either applicable generally to classes of individuals or specifically to particular individuals), as the Board determines desirable.

15.3.    Withholding Taxes and Contributions. The Company or a Subsidiary, as the case may be, will have the right to deduct from payments of any kind otherwise due to a Grantee any federal, state or local taxes and contributions of any kind required by law, in any jurisdiction, to be withheld (1) with respect to the grant of an Award, (2) the vesting of or other lapse of restrictions applicable to an Award, (3) upon the issuance or any transfer of any Shares, upon the Settlement of RSUs, upon the exercise of an Option or (4) otherwise due in connection with an Award. At the time of such grant, vesting, lapse or exercise, issuance or other event, the Grantee will pay to the Company or the Subsidiary, as the case may be, any amount that the Company or the Subsidiary may reasonably determine to be necessary to satisfy such withholding obligation. The Company or the Subsidiary, as the case may be, may require or permit the Grantee to satisfy such obligations, in whole or in part, (i) by causing the Company or the Subsidiary to withhold up to the maximum required number of Shares otherwise issuable to the Grantee as may be necessary to satisfy such withholding obligation or (ii) by delivering an amount corresponding to the tax or contribution due, in cash, so the Company or a Subsidiary, as the case may be, may levy the taxation on the Grantee’s behalf. The Shares so delivered or withheld will have an aggregate Fair Market Value equal to such withholding obligations. The Fair Market Value of the Shares used to satisfy such withholding obligation will be determined by the Company or the Subsidiary as of the date that the amount of tax or contribution to be withheld is to be determined. To the extent applicable, a Grantee may satisfy his withholding obligation only with Shares that are not subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements.

15.4.    Other Terms and Conditions and Employment Agreements. Each Award Agreement may contain such other terms and conditions not inconsistent with the Plan as may be determined by the Board. In the event of any conflict between the terms and conditions of an employment agreement and the Plan, the terms and conditions of the employment agreement will govern.

 

15.5.    No Guarantee of Continued Service. The granting or vesting of any Award under the Plan does not constitute an express or implied promise of continued engagement as an employee, Consultant or Non-Employee Director of the Company or its Subsidiaries for the vesting period, for any period, or at all, and will not interfere in any way with the right of the Company or any Subsidiary to effect a Separation from Service at any time, nor will it be construed to amend or modify the terms of any employment, consultancy, directorship, or other service agreement between a Grantee and the Company or any Subsidiary.

15.6.    No Acquired Rights. The grant of any Award under the Plan is voluntary and occasional and does not give the Grantee any contractual or other right to receive Awards or benefits in lieu of Awards in the future, even if a Grantee has have received Awards repeatedly in the past.

15.7.    Separation from Service.    The Board will determine the effect of a Separation from Service on Awards, and such effect will be set forth in the appropriate Award Agreement. Without limiting the foregoing, the Board may provide in the Award Agreements at the time of grant, or any time thereafter with the consent of the Grantee, the actions that may be taken upon the occurrence of a Separation from Service, including accelerated vesting or termination, depending on the circumstances surrounding the Separation from Service.

The Company will have the exclusive discretion to determine when there has been a Separation from Service, regardless of any notice period or period of pay in lieu of such notice that may be required.

15.8.    Severability. If any term or condition of the Plan or any Award Agreement is determined to be illegal or unenforceable by any court of law in any jurisdiction, the remaining terms and conditions of the Plan and the Award Agreement will be severable and enforceable, and all terms and conditions will remain enforceable in any other jurisdiction.

15.9.    Governing Law. The Plan and all Award Agreements will be construed in accordance with and governed by the laws of the Cayman Islands without regard to the principles of conflicts of law that could cause the application of the laws of any jurisdiction other than the Cayman Islands. For purposes of resolving any dispute that arises under the Plan, each Grantee will be subject to venue, jurisdiction and other dispute resolution provisions set forth in the applicable Award Agreement. The Plan is not intended to be subject to the United States Employee Retirement Income Security Act of 1974.

15.10.    Code § 409A and § 457A . The Plan is intended to comply with Code § 409A and § 457A to the extent subject thereto, and, accordingly, to the maximum extent permitted, the Plan will be interpreted and administered to be in compliance therewith. Any payments described in the Plan that are due within the “short-term deferral period” as defined in Code § 409A will not be treated as deferred compensation unless applicable laws require otherwise. For purposes of Code § 409A, each installment payment under the Plan will be treated as a separate payment. Notwithstanding any other term or condition of the Plan, to the extent required to avoid accelerated taxation or tax penalties under Code § 409A, amounts that would otherwise be payable and benefits that would otherwise be provided under the Plan during the six-month period immediately after the Grantee’s Separation from Service will instead be paid on the first payroll date after the six-month anniversary of the Grantee’s Separation from Service (or the Grantee’s death, if earlier). Notwithstanding the foregoing, neither the Company nor the Board will have any obligation to take any action to prevent the assessment of any additional tax or penalty on any Grantee under Code § 409A or § 457A and neither the Company nor the Board will have any liability to any Grantee for such tax or penalty.

 

15.11.    Transferability of Awards.

15.11.1.    Transfers in General. Except as provided in Section 15.11.2, no Award will be assignable or transferable by the Grantee to whom it is granted, other than by will or the laws of descent and distribution and, during the lifetime of the Grantee, only the Grantee personally (or the Grantee’s personal representative) may exercise rights under the Plan.

15.11.2.    Family Transfers. If authorized in the applicable Award Agreement and upon written consent from the Company, a Grantee may transfer, not for value, all or part of an Award to any Family Member. For the purpose of this Section 15.11.2, a “not for value” transfer is a transfer that is a gift, a transfer under a domestic relations order in settlement of marital property rights or a transfer to an entity in which more than 50% of the voting interests are owned by Family Members (or the Grantee) in exchange for an interest in that entity. After a transfer under this Section 15.11.2, any such Award will continue to be subject to the same terms and conditions as were applicable immediately before transfer. Subsequent transfers of transferred Awards are prohibited except to Family Members of the original Grantee in accordance with this Section 15.11.2 or by will or the laws of descent and distribution.

15.12.    Dividend Equivalent Rights. If specified in the Award Agreement, the recipient of an Award may be entitled to receive dividend equivalent rights with respect to the Shares or other securities covered by an Award. The terms and conditions of a dividend equivalent right may be set forth in the Award Agreement. Dividend equivalents credited to a Grantee may be paid in cash or deemed to be reinvested in additional Shares or other securities of the Company at a price per unit equal to the Fair Market Value of a Share on the date that such dividend was paid to Shareholders. Notwithstanding the foregoing, dividends or dividend equivalents will not be paid on any Award or portion thereof that is unvested or on any Award that is subject to the achievement of performance criteria before the Award has become earned and payable.

15.13.    Data Protection. Where consent is required under applicable data privacy law, a Grantee’s acceptance of an Award will be deemed to constitute the Grantee’s acknowledgement of and consent to the collection and processing of personal data relating to the Grantee so that the Company can meet its obligations and exercise its rights under the Plan and generally administer and manage the Plan. This data will include data about participation in the Plan and Shares offered or received, purchased, or sold under the Plan and other appropriate financial and other data (such as the date on which the Awards were granted) about the Grantee and the Grantee’s participation in the Plan.

15.14.    Plan Construction. In the Plan, unless otherwise stated, the following uses apply:

(1)    References to a statute or law refer to the statute or law and any amendments and any successor statutes or laws, and to all valid and binding governmental regulations, court decisions and other regulatory and judicial authority issued or rendered thereunder, as amended, or their successors, as in effect at the relevant time;

(2)    In computing periods from a specified date to a later specified date, the words “from” and “commencing on” (and the like) mean “from and including,” and the words “to,” “until” and “ending on” (and the like) mean “to and including”;

 

(3)    Indications of time of day will be based on the time applicable to the location of the principal headquarters of the Company;

(4)    The words “include,” “includes” and “including” (and the like) mean “include, without limitation,” “includes, without limitation” and “including, without limitation” (and the like), respectively;

(5)    All references to articles and sections are to articles and sections in the Plan;

(6)    All words used will be construed to be of such gender or number as the circumstances and context require;

(7)    The captions and headings of articles and sections have been inserted solely for convenience of reference and will not be considered a part of the Plan, nor will any of them affect the meaning or interpretation of the Plan;

(8)    Any reference to an agreement, plan, policy, form, document or set of documents, and the rights and obligations of the parties under any such agreement, plan, policy, form, document or set of documents, will mean such agreement, plan, policy, form, document or set of documents as amended from time to time, and any and all modifications, extensions, renewals, substitutions or replacements thereof; and

(9)    All accounting terms not specifically defined will be construed in accordance with GAAP.

15.15.    Language. If the Plan or any other document related to thereto is translated into a language other than English, and if the translated version is different from the English version, the English language version will take precedence. By acceptance of the Award, the Grantee confirms having read and understood the documents relating to the Plan including, without limitation, the Plan, the Award Agreement and the RSU Terms attached to the Award Agreement, which were provided in English, and waives any requirement for the Company or its Subsidiaries to provide these documents in any other language.

 

[FORM AGREEMENT FOR ARGENTINIAN TAXPAYERS]

EMPLOYEE RSU AWARD AGREEMENT

NU HOLDINGS LTD. 2020 OMNIBUS INCENTIVE PLAN

Nu Holdings Ltd. (the “Company”) grants to the Participant named below (“you”) the number of restricted stock units (“RSUs”) set forth below (the “Award”).

 

Plan:		Nu Holdings Ltd. 2020 Omnibus Incentive Plan
Defined Terms:		As set forth in the Plan, unless otherwise defined in this Agreement.
Participant:		[Name]
Participant Tax ID/CFP:		[########]
Participant Contact Information:		[ADDRESS] [ADDRESS] [EMAIL]
Grant Date:		[Date]
Number of RSUs Granted:		[####]
Definition of RSU:		Each RSU will entitle you to receive one Share at such future dates and subject to such terms as set forth in this Agreement. The RSUs granted under this Award will entitle you at no time to receive Shares of any entity other than the Company.

 

 

Earning and Payment Schedule:1		[PERFORMANCE CYCLE AWARDS: The RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter following the Grant Date.]   [SIGN-ON AWARDS: 1/4th of the total number of RSUs will become earned and payable on [DATE OF CLIFF VESTING]. The remaining RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter thereafter.]2   For the avoidance of doubt, if the first day of a calendar quarter falls on a weekend or a bank holiday (as determined by the Company in its sole discretion), any RSUs that would otherwise become earned and payable for such calendar quarter will become earned and payable on the next following business day.
Separation from Service:		If you have a Separation from Service, any RSUs that have not become earned prior to your Separation from Service will be immediately cancelled and forfeited in their entirety, and you will not be entitled to any payment with respect to such RSUs.
Governing Law and Dispute Resolution:		The RSU will be subject to the laws of the Cayman Islands. Any dispute arising out of or in connection with the RSU will be finally settled by arbitration, administered by the Center for Arbitration and Mediation of the Câmara de Comércio Brasil-Canadá. The seat of arbitration will be São Paulo, State of São Paulo, Brazil. The Arbitral Tribunal will consist of one arbitrator. Further details are set forth in the RSU Terms.

By signing below, you agree that the Award is granted under and governed by the terms of the Plan and this RSU Award Agreement (including the attached RSU Terms) (“Agreement”), as of the Grant Date.

 

PARTICIPANT				NU HOLDINGS LTD.
Sign Name:				Sign Name:
Print Name:				Print Name:
				Title:

 

 

1	The Company could also provide that the RSUs become payable only upon certain events, such as if the employee is continuously employed through a Change in Control or IPO or following termination of employment if the employee is a good leaver.
2	Sample language provides for quarterly vesting over a 3-year period. Other vesting schedules are also permissible.

 

RSU TERMS

 

1.	Grant of RSUs.

(a)    The Award is subject to the terms of the Plan. A copy of the Plan is attached to this Agreement as Exhibit A, and the terms of the Plan are incorporated into and form a part of this Agreement.

(b)    You must accept the terms of this Agreement by returning a signed copy to the Company within 60 days after the Agreement is presented to you for review. The Company or its delegate may unilaterally cancel and forfeit the Award in its entirety if you do not accept the terms of this Agreement.

 

2.	Restrictions.

(a)    You will have no rights or privileges of a Shareholder as to the RSUs before settlement under Section 5 below (“Settlement”), including no right to vote or receive dividends or other distributions; in addition, the following provisions will apply:

(i)    you will not be entitled to delivery of any Share certificates for the RSUs until Settlement (if at all), and upon the satisfaction of all other terms;

(ii)    for the avoidance of doubt, RSUs are not transferrable; you cannot and you may not sell, transfer (other than by will or the laws of descent and distribution), assign, pledge, or otherwise encumber or dispose of the RSUs before Settlement; and

(iii)    you will forfeit all of the RSUs and all of your rights under the RSUs will terminate in their entirety on the terms set forth in Section 4 below.

(b)    No certificates will be issued by the Company to you with respect to the RSUs.

(c)    Any attempt to dispose of RSUs or any interest in the RSUs in a manner contrary to the restrictions set forth in this Agreement will be void and of no effect.

3.    Restricted Period and Payment. The “Restricted Period” is the period beginning on the Grant Date and ending on the date the RSUs, or such applicable portion of the RSUs, are deemed earned and payable under the terms set forth in table at the beginning of this Agreement.

4.    Forfeiture. If, during the Restricted Period, (i) you incur a Separation from Service or (ii) you materially breach this Agreement or (iii) you fail to meet any tax or other payment obligation under your responsibility (when applicable), as described in Section 7, all of your rights to the RSUs that have not previously been paid will terminate immediately and be forfeited in their entirety.

5.    Settlement of RSUs. Delivery of Shares or other amounts under this Agreement will be subject to the following:

(a)    The Company will deliver to you one Share for each RSU that has become earned and payable and not otherwise been forfeited within 30 days after the end of the applicable Restricted Period.

 

(b)    Any issuance of Shares under the Award may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the applicable rules of any securities exchange or similar entity.

(c)    If a certificate for Shares is delivered to you under the Award, the certificate may bear the following or a similar legend as determined by the Company:

AT THE DISCRETION OF THE COMPANY, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS AFTER THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER’S PRINCIPAL OFFICE. SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.

If the Shares are not certificated, the language above may be inserted on the pages of the register of members of the Company in which the Shares are registered. In addition, any certificates for Shares will be subject to any stop-transfer orders and other restrictions as the Company may deem advisable under the rules, regulations and other requirements of the SEC, any stock exchange on which the Shares are then listed and any applicable federal or state securities law of any jurisdiction, and the Company may cause legends to be placed on any certificates to make appropriate reference to these restrictions.

In this respect, please be aware that this Agreement has not been and will not be registered with the Comisión Nacional de Valores of Argentina (“CNV”), and neither the Company nor any Affiliate nor the RSUs are registered with the CNV. Consequently, no public offering related to this Agreement or the RSUs is authorized in Argentina under the Argentine Capital Markets Law. No. 26,831, as amended by Decree No. 1023/2013 and relating rules issued by the CNV.

 

6.	Obligation to Sell and Transfer Restrictions.

(a)    If you propose to transfer the Shares after they are delivered to you pursuant to Section 5, you must promptly give the Company written notice of your intention to make the transfer (the “Transfer Notice”). The Transfer Notice must include (i) a description of the Shares to be transferred (“Offered Shares”), (ii) the names and addresses of the prospective transferees, (iii) the consideration and (iv) the material terms and conditions on which the proposed transfer is to be made. The Transfer Notice will certify that you have received a firm offer from the prospective transferees and in good faith believe a binding agreement for the transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice must also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. For the purpose of this Agreement, a “Transfer” will mean any direct or indirect transfer of the Shares to a third party as a consequence of any transaction, including, without limitation, an exchange of assets, a corporate reorganization or any other mechanism.

(b)    The Company will have an option for a period of 20 days from delivery of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Company may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying you in writing before expiration of such 20-day period as to the number of such shares that it wishes to purchase. If the Company gives you notice that it desires to purchase such shares, then payment for the Offered Shares will be by check or wire transfer, against delivery of an executed instrument of transfer at a place agreed on between the parties and at the time of the scheduled closing therefor, which will be no later than 30 days after delivery to the Company of the Transfer Notice.

 

(c)    For a period of 30 days following your Separation from Service, the Company will have the right, but not the obligation, to repurchase all or a portion of the Shares that you retain following your Separation from Service (determined in accordance with the Award) at their then-current Fair Market Value. The Company may freely assign the Company’s right to buy such Shares, in whole or in part.

(d)    Subject to the Company’s right to repurchase the Shares pursuant to Section 6(c), you will be entitled to exercise the right to sell Shares alongside a holder of the majority of the Ordinary Shares issued and outstanding as of the date of adoption of the Plan (a “Majority Shareholder”), to a third party interested in acquiring control of the Company in a transaction that constitutes a liquidation event as defined in the Company’s Memorandum and Articles of Association (a “Tag-Along Right”).

You must communicate your intention to exercise your Tag Along Right to the Company and the Majority Shareholder within 10 days of receiving notice of an offer submitted by a third party interested in acquiring control of the Company. If you exercise your Tag Along Right, the offer to acquire all or part of the shares of the Majority Shareholder will be extended in the same proportion to your Shares, at the same price per share and the same conditions of the offer submitted by the third party. If the third party only agrees to purchase the originally intended amount of shares subject to the proposed acquisition of control, the Majority Shareholder and all other Participants exercising a tag along right with respect to Shares granted under the Plan, including you, may sell to the third party an amount of Shares calculated pro-rata based on the percentage of the total share capital of the Company held by each Majority Shareholder, other Participants and you.

(e)    If the Majority Shareholder and all the preferred shareholders receive a good-faith binding offer with respect to a Transfer of all of their respective shares in the Company to a third party, which the Majority Shareholder and all the preferred shareholders are willing to accept and such offer is approved in accordance with the Company’s Memorandum and Articles of Association, then the Majority Shareholder will have the right to require that you, and you will be obliged to, sell all of your Shares to the third party on the same terms and conditions offered to the Majority Shareholder (a “Drag-Along Offer”). The Majority Shareholder will provide you, each investor and the Company with written notice (the “Drag-Along Notice”) not more than 60 days nor less than 10 days prior to the proposed closing date of the Drag-Along Offer. The Drag-Along Notice will be accompanied with the same information and documents as the Transfer Notice. For the avoidance of doubt, you acknowledge that the right of first refusal provided under Section 6(a), on one hand, and the Tag-Along Right, on the other hand, will not apply in the case of the exercise of the drag-along rights under this Section 6(e) by the Majority Shareholder or preferred shareholders.

 

7.	Withholding.

(a) Regardless of any action the Company may take that is related to any or all corporate and personal income tax, payroll tax, social security tax, social wages or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items owed by you is and will remain your responsibility. The Company (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items under the Award and (ii) does not commit to structure the terms of the Award to reduce or eliminate your liability for Tax-Related Items.

 

(b)    You will be required to meet any applicable tax withholding obligation in accordance with the tax withholding provisions of Section 15.3 of the Plan (or any successor provision thereto). In the event of the Shares being retained so the Company or the applicable Affiliate may fulfill Tax-Related Items obligations on your behalf, the Company may, at its sole discretion, allow you to buy Shares of the Company for the same price based on which they are granted at the vesting of the RSUs.

You acknowledge that the foregoing is not, and is not intended to purport tax advice and that you may be subject to additional tax obligations all of which are your responsibility. You should consult your own tax advisor regarding the particular tax consequences of entering into the Agreement and the Award under this Agreement and exercising any rights related hereto.

8.    Adjustment. Upon any event described in Section 13 of the Plan (or any successor provision) occurring after the Grant Date, the adjustment provisions of that section will apply to the Award.

9.    Bound by Plan and Company Decisions. By accepting the Award, you acknowledge that you have received a copy of the Plan, have had an opportunity to review the Plan, and agree to be bound by all of the terms of the Plan. If there is any conflict between this Agreement and the Plan, the Plan will control. The authority to manage and control the operation and administration of this Agreement and the Plan is vested in the Company and its delegate. The Company and its delegate has all powers under this Agreement that it has under the Plan. Any interpretation of this Agreement or the Plan by the Company or its delegate and any decision made by the Company or its delegate related to the Agreement or the Plan will be final and binding on all persons.

10.    Your Representations. You represent to the Company that you have read and fully understand this Agreement and the Plan and that your decision to participate in the Plan is completely voluntary. You also acknowledge that you are relying solely on your own advisors regarding the tax consequences of the Award.

11.    Regulatory and Other Limitations. Notwithstanding anything else in this Agreement, the Company or its delegate may impose conditions, restrictions, and limitations on the issuance of Shares under the Award unless and until the Company or its delegate determines that the issuance complies with (a) all registration requirements under the Securities Act, (b) all listing requirements of any stock exchange on which the Shares are listed, (c) all Company policies and administrative rules and (d) all applicable laws.

 

12.	Miscellaneous.

(a)    Notices. Any notice that may be required or permitted under this Agreement must be in writing and may be delivered personally, by intraoffice mail or by electronic mail or via a postal service (postage prepaid) to the electronic mail or postal address and directed to the person as the receiving party may designate in writing from time to time.

(b)    Waiver. The waiver by any party to this Agreement of a breach of any provision of the Agreement will not operate or be construed as a waiver of any other or subsequent breach.

 

(c)    Entire Agreement. This Agreement and the Plan constitute the entire agreement between you and the Company related to the Award. Any prior agreements, commitments or negotiations concerning the Award are superseded.

(d)    Binding Effect and Successors. The obligations and rights of the Company under this Agreement will be binding on and inure to the benefit of the Company and any successor corporation or organization resulting from the merger, consolidation, sale or other reorganization of the Company, or on any successor corporation or organization succeeding to substantially all of the assets and business of the Company. Your obligations and rights under this Agreement will be binding on and inure to your benefit and the benefit of your beneficiaries, executors, administrators, heirs and successors.

(e)    Governing Law, Arbitration. This Agreement will be construed and interpreted in accordance with the internal laws of the Cayman Islands without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the Cayman Islands. For purposes of resolving any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Agreement, the parties hereto submit to a final and binding arbitration process, under the terms established in Law no. 9,307/1996, instead of through any court. You and the Company agree that, to the maximum extent under applicable law, an arbitral award, once issued, is final, not subject to appeal, and binding on all parties involved in the arbitration (“Arbitration Parties”) who automatically commit into observing the arbitral award. The dispute or claim brought to an arbitration under the terms of this Section 12(e), will be submitted to the Câmara de Comércio Brasil-Canadá (“Arbitral Institution”), as per its Arbitration Rules in force at the time of the commencement of the arbitration except as they may be modified herein or by mutual agreement of you and the Company. The arbitration will be held at the city of São Paulo, State of São Paulo, Brazil, where the arbitral award will be deemed rendered. The Arbitrator may designate other locations where specific acts may be held to assist the conducting of the arbitration. The arbitration will be conducted in Portuguese and the rules and principles of Laws of the Brazilian Federative Republic will be applied. The Arbitrator will not act as amiable compositeurs or decide the merits of the dispute ex aequo et bono. The Arbitrator will allocate the payment of the Expenses involved on the arbitration among the Arbitration Parties, observing the criteria of burden of defeat, reasonability and proportionality. For the purposes of this Section 12(e), “Expenses” are: (i) fees and other amounts owed, paid or reimbursed to the Arbitrator; (ii) the fees and other amounts owed, paid or reimbursed to the experts, translators, interpreters and other assistants that are eventually designated by the Arbitrator; and (iii) the loss of suit expenses established by the Arbitrator. The Arbitrator will not sentence any of the Arbitration Parties to pay or reimburse (i) contractual fees or any other amount owed, paid or reimbursed by the contrary party to its’ attorneys, technical assistants, translators, interpreters and other assistants; and (ii) any other amount owed, paid or reimbursed by the adverse party in connection with the arbitration, such as expenses with copies, authentications, notarizations, travels and others. The arbitration will be conducted by a sole arbitrator (“Arbitrator”). The Arbitration Parties will, by agreement, nominate the Arbitrator. If the Arbitration Parties fail to nominate the Arbitrator within 15 days from the date when the claimant’s request for arbitration has been received by respondent, the Arbitrator will be appointed by the Arbitral Institution. The choice of the Arbitrator is not limited to the Arbitral Institution’s list of arbitrators. Any and all controversies related to the nomination of the Arbitrator by the parties will be settled by the Arbitral Institution Injunctive relief. Either one of the Arbitration Parties has the right to seek injunctive relief to the competent judicial court for protecting the rights to be discussed before the confirmation of the Arbitrator’s appointment, without this being considered as a waiver of the arbitration. Any requests or injunctions granted by the judicial authority must be immediately notified to the Arbitral Institution, which will inform the Arbitrator. The Arbitrator may review, provide, keep or revoke an injunction. After the commencement of the proceeding, all urgent requests and injunctions must be submitted to the Arbitrator. For (i) the request of injunctive reliefs before the confirmation of the Arbitrator’s appointment; (ii) the enforcement of a decision rendered by the Arbitrator; or (iii) other matters permitted under applicable law, the parties hereby elect the competent court of the City of São Paulo, State of São Paulo. Nothing in this Section 12(e) will preclude the ability of either party to seek enforcement of the Arbitral Award in any jurisdiction or court, in Brazil or abroad, and consent to the exclusive jurisdiction of the competent court of the City of São Paulo, State of São Paulo.

 

(f)    Headings. The headings in this Agreement are for convenience of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.

(g)    Amendment. This Agreement may be amended at any time by the Company, except that no amendment may, without your consent, materially impair your rights under the Award.

(h)    Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of the Agreement, and each other provision will be severable and enforceable to the extent permitted by law.

(i)    No Rights to Service. Nothing in this Agreement will be construed as giving you any right to be retained in any position with the Company or its Affiliates. Nothing in this Agreement will interfere with or restrict the rights of the Company or its Affiliates—which are expressly reserved—to remove, terminate or discharge you at any time for any reason whatsoever or for no reason, subject to the Company’s certificate of incorporation, bylaws and other similar governing documents and applicable law.

(j)    Further Assurances. You must, upon request of the Company or its delegate, do all acts and execute, deliver and perform all additional documents, instruments and agreements that may be reasonably required by the Company or the Committee to implement the provisions and purposes of this Agreement.

(k)    Clawback. All awards, amounts or benefits received or outstanding under the Plan will be subject to clawback, cancellation, recoupment, rescission, payback, reduction or other similar action in accordance with the terms of any Company clawback or similar policy or any applicable law related to such actions, as may be in effect from time to time. You acknowledge and consent to the Company’s application, implementation and enforcement of any applicable Company clawback or similar policy that may apply to you, whether adopted before or after the Grant Date, and any provision of applicable law relating to clawback, cancellation, recoupment, rescission, payback or reduction of compensation, and the Company may take such actions as may be necessary to effectuate any such policy or applicable law, without further consideration or action.

(l)    Electronic Delivery and Acceptance. The Company may deliver any documents related to current or future participation in the Plan by electronic means. You consent to receive those documents by electronic delivery and to participate in the Plan through any on-line or electronic system established and maintained by the Company or a third party designated by the Company.

 

[FORM AGREEMENT FOR BRAZILIAN TAXPAYERS]

EMPLOYEE RSU AWARD AGREEMENT

NU HOLDINGS LTD. 2020 OMNIBUS INCENTIVE PLAN

Nu Holdings Ltd. (the “Company grants to the Participant named below (“you”) the number of restricted stock units (“RSUs”) set forth below (the “Award”).

 

Plan:		Nu Holdings Ltd. 2020 Omnibus Incentive Plan
Defined Terms:		As set forth in the Plan, unless otherwise defined in this Agreement.
Participant:		[Name]
Participant Tax ID/CFP:		[########]
Participant Contact Information:		[ADDRESS] [ADDRESS] [EMAIL]
Grant Date:		[Date]
Number of RSUs Granted:		[####]
Definition of RSU:		Each RSU will entitle you to receive one Share at such future dates and subject to such terms as set forth in this Agreement.

 

 

Earning and Payment Schedule:1		[PERFORMANCE CYCLE AWARDS: The RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter following the Grant Date.]   [SIGN-ON AWARDS: 1/4th of the total number of RSUs will become earned and payable on [DATE OF CLIFF VESTING]. The remaining RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter thereafter.]2   For the avoidance of doubt, if the first day of a calendar quarter falls on a weekend or a bank holiday (as determined by the Company in its sole discretion), any RSUs that would otherwise become earned and payable for such calendar quarter will become earned and payable on the next following business day.
Separation from Service:		If you have a Separation from Service, any RSUs that have not become earned prior to your Separation from Service will be immediately cancelled and forfeited in their entirety, and you will not be entitled to any payment with respect to such RSUs.
Governing Law and Dispute Resolution:		The RSU will be subject to the laws of the Cayman Islands. Any dispute arising out of or in connection with the RSU will be finally settled by arbitration, administered by the Center for Arbitration and Mediation of the Câmara de Comércio Brasil-Canadá. The seat of arbitration will be São Paulo, State of São Paulo, Brazil. The Arbitral Tribunal will consist of one arbitrator. Further details are set forth in the RSU Terms.

By signing below, you agree that the Award is granted under and governed by the terms of the Plan and this RSU Award Agreement (including the attached RSU Terms) (“Agreement”), as of the Grant Date.

 

PARTICIPANT						NU HOLDINGS LTD.
Sign Name:						Sign Name:
Print Name:						Print Name:
						Title:

 

1	The Company could also provide that the RSUs become payable only upon certain events, such as if the employee is continuously employed through a Change in Control or IPO or following termination of employment if the employee is a good leaver.
2	Sample language provides for quarterly vesting over a 3-year period. Other vesting schedules are also permissible.

 

RSU TERMS

 

1.	Grant of RSUs.

(a)    The Award is subject to the terms of the Plan. A copy of the Plan is attached to this Agreement as Exhibit A, and the terms of the Plan are incorporated into and form a part of this Agreement.

(b)    You must accept the terms of this Agreement by returning a signed copy to the Company within 60 days after the Agreement is presented to you for review. The Company or their delegate may unilaterally cancel and forfeit the Award in its entirety if you do not accept the terms of this Agreement.

 

2.	Restrictions.

(a)    You will have no rights or privileges of a Shareholder as to the RSUs before settlement under Section 5 below (“Settlement”), including no right to vote or receive dividends or other distributions; in addition, the following provisions will apply:

(i)    you will not be entitled to delivery of any Share certificates for the RSUs until Settlement (if at all), and upon the satisfaction of all other terms;

(ii)    for the avoidance of doubt, RSUs are not transferrable; you cannot and you may not sell, transfer (other than by will or the laws of descent and distribution), assign, pledge, or otherwise encumber or dispose of the RSUs before Settlement; and

(iii)    you will forfeit all of the RSUs and all of your rights under the RSUs will terminate in their entirety on the terms set forth in Section 4 below.

(b)    No certificates will be issued by the Company to you with respect to the RSUs.

(c)    Any attempt to dispose of RSUs or any interest in the RSUs in a manner contrary to the restrictions set forth in this Agreement will be void and of no effect.

3.    Restricted Period and Payment. The “Restricted Period” is the period beginning on the Grant Date and ending on the date the RSUs, or such applicable portion of the RSUs, are deemed earned and payable under the terms set forth in table at the beginning of this Agreement.

4.    Forfeiture. If, during the Restricted Period, (i) you incur a Separation from Service or (ii) you materially breach this Agreement or (iii) you fail to meet any tax obligation under your responsibility (when applicable), as described in Section 7, all of your rights to the RSUs that have not previously been paid will terminate immediately and be forfeited in their entirety.

5.    Settlement of RSUs. Delivery of Shares or other amounts under this Agreement will be subject to the following:

(a)    You will receive one Share of the Company for each RSU that has become earned and payable and not otherwise been forfeited within 30 days after the end of the applicable Restricted Period.

 

(b)    Any issuance of Shares under the Award may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the applicable rules of any securities exchange or similar entity.

(c)    If a certificate for Shares is delivered to you under the Award, the certificate may bear the following or a similar legend as determined by the Company:

AT THE DISCRETION OF THE COMPANY, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS AFTER THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER’S PRINCIPAL OFFICE. SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.

If the Shares are not certificated, the language above may be inserted on the pages of the register of members of the Company in which the Shares are registered. In addition, any certificates for Shares will be subject to any stop-transfer orders and other restrictions as the Company may deem advisable under the rules, regulations and other requirements of the SEC, any stock exchange on which the Shares are then listed and any applicable federal or state securities law, and the Company may cause legends to be placed on any certificates to make appropriate reference to these restrictions.

 

6.	Obligation to Sell and Transfer Restrictions.

(a)    If you propose to transfer the Shares after they are delivered to you pursuant to Section 5, you must promptly give the Company written notice of your intention to make the transfer (the “Transfer Notice”). The Transfer Notice must include (i) a description of the Shares to be transferred (“Offered Shares”), (ii) the names and addresses of the prospective transferees, (iii) the consideration and (iv) the material terms and conditions on which the proposed transfer is to be made. The Transfer Notice will certify that you have received a firm offer from the prospective transferees and in good faith believe a binding agreement for the transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice must also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. For the purpose of this Agreement, a “Transfer” will mean any direct or indirect transfer of the Shares to a third party as a consequence of any transaction, including, without limitation, an exchange of assets, a corporate reorganization or any other mechanism.

(b)    The Company will have an option for a period of 20 days from delivery of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Company may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying you in writing before expiration of such 20-day period as to the number of such shares that it wishes to purchase. If the Company gives you notice that it desires to purchase such shares, then payment for the Offered Shares will be by check or wire transfer, against delivery of an executed instrument of transfer at a place agreed on between the parties and at the time of the scheduled closing therefor, which will be no later than 30 days after delivery to the Company of the Transfer Notice.

 

(c)    For a period of 30 days following your Separation from Service, the Company will have the right, but not the obligation, to repurchase all or a portion of the Shares that you retain following your Separation from Service (determined in accordance with the Award) at their then-current Fair Market Value. The Company may freely assign the Company’s right to buy such Shares, in whole or in part.

(d)    Subject to the Company’s right to repurchase the Shares pursuant to Section 6(c), you will be entitled to exercise the right to sell Shares alongside a holder of the majority of the Ordinary Shares issued and outstanding as of the date of adoption of the Plan (a “Majority Shareholder”), to a third party interested in acquiring control of the Company in a transaction that constitutes a liquidation event as defined in the Company’s Memorandum and Articles of Association (a “Tag-Along Right”).

You must communicate your intention to exercise your Tag Along Right to the Company and the Majority Shareholder within 10 days of receiving notice of an offer submitted by a third party interested in acquiring control of the Company. If you exercise your Tag Along Right, the offer to acquire all or part of the shares of the Majority Shareholder will be extended in the same proportion to your Shares, at the same price per share and the same conditions of the offer submitted by the third party. If the third party only agrees to purchase the originally intended amount of shares subject to the proposed acquisition of control, the Majority Shareholder and all other Participants exercising a tag along right with respect to Shares granted under the Plan, including you, may sell to the third party an amount of Shares calculated pro-rata based on the percentage of the total share capital of the Company held by each Majority Shareholder, other Participants and you.

(e)    If the Majority Shareholder and all the preferred shareholders receive a good-faith binding offer with respect to a Transfer of all of their respective shares in the Company to a third party, which the Majority Shareholder and all the preferred shareholders are willing to accept and such offer is approved in accordance with the Company’s Memorandum and Articles of Association, then the Majority Shareholder will have the right to require that you, and you will be obliged to, sell all of your Shares to the third party on the same terms and conditions offered to the Majority Shareholder (a “Drag-Along Offer”). The Majority Shareholder will provide you, each investor and the Company with written notice (the “Drag-Along Notice”) not more than 60 days nor less than 10 days prior to the proposed closing date of the Drag-Along Offer. The Drag-Along Notice will be accompanied with the same information and documents as the Transfer Notice. For the avoidance of doubt, you acknowledge that the right of first refusal provided under Section 6(a), on one hand, and the Tag-Along Right, on the other hand, will not apply in the case of the exercise of the drag-along rights under this Section 6(e) by the Majority Shareholder or preferred shareholders.

 

7.	Withholding.

(a)    Regardless of any action the Company may take that is related to any or all corporate and personal income tax, payroll tax, social security tax, social wages or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items owed by you is and will remain your responsibility. The Company (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items under the Award and (ii) does not commit to structure the terms of the Award to reduce or eliminate your liability for Tax-Related Items.

(b)    In spite of the above, the Company will have the option, but not the obligation, to the extent permitted by applicable law, to pay on your behalf any of the Tax-Related Items in connection with the Award, the case in which you hereby authorize the Company to withhold and retain a certain number of RSUs, which will be equivalent in value to the corresponding cash needed by the Company to meet the tax obligations performed on your behalf. The value ascribed to the share retained will be similar to the value used to calculate the Tax-Related Items. Any fractions of RSUs withheld and retained by the Company in excess to the exact amounts it used to pay on your behalf any of the Tax-Related Items in connection with the Award (e.g.: in light of rounding), will be returned to you in cash or in cash-equivalent additional fractions of RSUs upon the following grant under the Plan. In the event of the Shares being retained so the Company may fulfill Tax-Related Items obligations on your behalf, the Company may, at their sole discretion, allow you to buy Shares of the Company for the same price based on which they are granted at the vesting of the RSUs.

 

(c)    Alternatively and at the discretion of the Company, you may be requested to submit, in cash, the amount corresponding to the Tax-Related Items due in connection with the Award, to the Company so they may pay the Tax-Related Items on your behalf. If that is the case, you will receive the full amount of the RSUs in Shares. Any amount submitted in excess to the Company in excess for the payment of taxes on your behalf shall be returned to you in cash in the same month.

You acknowledge that the foregoing is not, and is not intended to purport tax advice and that you may be subject to additional tax obligations all of which are your responsibility. You should consult your own tax advisor regarding the particular tax consequences of entering into the Agreement and the Award under this Agreement and exercising any rights related hereto.

8.    Adjustment. Upon any event described in Section 13 of the Plan (or any successor provision) occurring after the Grant Date, the adjustment provisions of that section will apply to the Award.

9.    Bound by Plan and Company Decisions. By accepting the Award, you acknowledge that you have received a copy of the Plan, have had an opportunity to review the Plan, and agree to be bound by all of the terms of the Plan. If there is any conflict between this Agreement and the Plan, the Plan will control. The authority to manage and control the operation and administration of this Agreement and the Plan is vested in the Company and its delegate. The Company and its delegate has all powers under this Agreement that it has under the Plan. Any interpretation of this Agreement or the Plan by the Company or its delegate and any decision made by the Company or its delegate related to the Agreement or the Plan will be final and binding on all persons.

10.    Your Representations. You represent to the Company that you have read and fully understand this Agreement and the Plan and that your decision to participate in the Plan is completely voluntary. You also acknowledge that you are relying solely on your own advisors regarding the tax consequences of the Award.

11.    Regulatory and Other Limitations. Notwithstanding anything else in this Agreement, the Company or its delegate may impose conditions, restrictions, and limitations on the issuance of Shares under the Award unless and until the Company or its delegate determines that the issuance complies with (a) all registration requirements under the Securities Act, (b) all listing requirements of any stock exchange on which the Shares are listed, (c) all Company policies and administrative rules and (d) all applicable laws.

 

12.	Miscellaneous.

(a)    Notices. Any notice that may be required or permitted under this Agreement must be in writing and may be delivered personally, by intraoffice mail or by electronic mail or via a postal service (postage prepaid) to the electronic mail or postal address and directed to the person as the receiving party may designate in writing from time to time.

 

(b)    Waiver. The waiver by any party to this Agreement of a breach of any provision of the Agreement will not operate or be construed as a waiver of any other or subsequent breach.

(c)    Entire Agreement. This Agreement and the Plan constitute the entire agreement between you and the Company related to the Award. Any prior agreements, commitments or negotiations concerning the Award are superseded.

(d)    Binding Effect and Successors. The obligations and rights of the Company under this Agreement will be binding on and inure to the benefit of the Company and any successor corporation or organization resulting from the merger, consolidation, sale or other reorganization of the Company, or on any successor corporation or organization succeeding to substantially all of the assets and business of the Company. Your obligations and rights under this Agreement will be binding on and inure to your benefit and the benefit of your beneficiaries, executors, administrators, heirs and successors.

(e)    Governing Law, Arbitration. This Agreement will be construed and interpreted in accordance with the internal laws of the Cayman Islands without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the Cayman Islands. For purposes of resolving any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Agreement, the parties hereto submit to a final and binding arbitration process, under the terms established in Law no. 9,307/1996, instead of through any court. You and the Company agree that, to the maximum extent under applicable law, an arbitral award, once issued, is final, not subject to appeal, and binding on all parties involved in the arbitration (“Arbitration Parties”) who automatically commit into observing the arbitral award. The dispute or claim brought to an arbitration under the terms of this Section 12(e), will be submitted to the Câmara de Comércio Brasil-Canadá (“Arbitral Institution”), as per its Arbitration Rules in force at the time of the commencement of the arbitration except as they may be modified herein or by mutual agreement of you and the Company. The arbitration will be held at the city of São Paulo, State of São Paulo, Brazil, where the arbitral award will be deemed rendered. The Arbitrator may designate other locations where specific acts may be held to assist the conducting of the arbitration. The arbitration will be conducted in Portuguese and the rules and principles of Laws of the Brazilian Federative Republic will be applied. The Arbitrator will not act as amiable compositeurs or decide the merits of the dispute ex aequo et bono. The Arbitrator will allocate the payment of the Expenses involved on the arbitration among the Arbitration Parties, observing the criteria of burden of defeat, reasonability and proportionality. For the purposes of this Section 12(e), “Expenses” are: (i) fees and other amounts owed, paid or reimbursed to the Arbitrator; (ii) the fees and other amounts owed, paid or reimbursed to the experts, translators, interpreters and other assistants that are eventually designated by the Arbitrator; and (iii) the loss of suit expenses established by the Arbitrator. The Arbitrator will not sentence any of the Arbitration Parties to pay or reimburse (i) contractual fees or any other amount owed, paid or reimbursed by the contrary party to its’ attorneys, technical assistants, translators, interpreters and other assistants; and (ii) any other amount owed, paid or reimbursed by the adverse party in connection with the arbitration, such as expenses with copies, authentications, notarizations, travels and others. The arbitration will be conducted by a sole arbitrator (“Arbitrator”). The Arbitration Parties will, by agreement, nominate the Arbitrator. If the Arbitration Parties fail to nominate the Arbitrator within 15 days from the date when the claimant’s request for arbitration has been received by respondent, the Arbitrator will be appointed by the Arbitral Institution. The choice of the Arbitrator is not limited to the Arbitral Institution’s list of arbitrators. Any and all controversies related to the nomination of the Arbitrator by the parties will be settled by the Arbitral Institution Injunctive relief. Either one of the Arbitration Parties has the right to seek injunctive relief to the competent judicial court for protecting the rights to be discussed before the confirmation of the Arbitrator’s appointment, without this being considered as a waiver of the arbitration. Any requests or injunctions granted by the judicial authority must be immediately notified to the Arbitral Institution, which will inform the Arbitrator. The Arbitrator may review, provide, keep or revoke an injunction. After the commencement of the proceeding, all urgent requests and injunctions must be submitted to the Arbitrator. For (i) the request of injunctive reliefs before the confirmation of the Arbitrator’s appointment; (ii) the enforcement of a decision rendered by the Arbitrator; or (iii) other matters permitted under applicable law, the parties hereby elect the competent court of the City of São Paulo, State of São Paulo. Nothing in this Section 12(e) will preclude the ability of either party to seek enforcement of the Arbitral Award in any jurisdiction or court, in Brazil or abroad, and consent to the exclusive jurisdiction of the competent court of the City of São Paulo, State of São Paulo.

 

(f)    Headings. The headings in this Agreement are for convenience of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.

(g)    Amendment. This Agreement may be amended at any time by the Company, except that no amendment may, without your consent, materially impair your rights under the Award.

(h)    Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of the Agreement, and each other provision will be severable and enforceable to the extent permitted by law.

(i)    No Rights to Service. Nothing in this Agreement will be construed as giving you any right to be retained in any position with the Company or its Affiliates. Nothing in this Agreement will interfere with or restrict the rights of the Company or its Affiliates—which are expressly reserved—to remove, terminate or discharge you at any time for any reason whatsoever or for no reason, subject to the Company’s certificate of incorporation, bylaws and other similar governing documents and applicable law.

(j)    Further Assurances. You must, upon request of the Company or their delegate, do all acts and execute, deliver and perform all additional documents, instruments and agreements that may be reasonably required by the Company, the Affiliates or the Committee to implement the provisions and purposes of this Agreement.

(k)    Clawback. All awards, amounts or benefits received or outstanding under the Plan will be subject to clawback, cancellation, recoupment, rescission, payback, reduction or other similar action in accordance with the terms of any Company clawback or similar policy or any applicable law related to such actions, as may be in effect from time to time. You acknowledge and consent to the Company’s application, implementation and enforcement of any applicable Company clawback or similar policy that may apply to you, whether adopted before or after the Grant Date, and any provision of applicable law relating to clawback, cancellation, recoupment, rescission, payback or reduction of compensation, and the Company may take such actions as may be necessary to effectuate any such policy or applicable law, without further consideration or action.

(l)    Electronic Delivery and Acceptance. The Company may deliver any documents related to current or future participation in the Plan by electronic means. You consent to receive those documents by electronic delivery and to participate in the Plan through any on-line or electronic system established and maintained by the Company or a third party designated by the Company.

 

[FORM AGREEMENT FOR COLOMBIAN TAXPAYERS]

EMPLOYEE RSU AWARD AGREEMENT

NU HOLDINGS LTD. 2020 OMNIBUS INCENTIVE PLAN

Nu Holdings Ltd. (the “Company”) grants to the Participant named below (“you”) the number of restricted stock units (“RSUs”) set forth below (the “Award”).

 

Plan:		Nu Holdings Ltd. 2020 Omnibus Incentive Plan
Defined Terms:		As set forth in the Plan, unless otherwise defined in this Agreement.
Participant:		[Name]
Participant Tax ID/CFP:		[########]
Participant Contact Information:		[ADDRESS] [ADDRESS] [EMAIL]
Grant Date:		[Date]
Number of RSUs Granted:		[####]
Definition of RSU:		Each RSU will entitle you to receive one Share at such future dates and subject to such terms as set forth in this Agreement. The RSUs granted under this Award will entitle you at no time to receive Shares of any entity other than the Company.

 

 

Earning and Payment Schedule:1		[PERFORMANCE CYCLE AWARDS: The RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter following the Grant Date.]   [SIGN-ON AWARDS: 1/4th of the total number of RSUs will become earned and payable on [DATE OF CLIFF VESTING]. The remaining RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter thereafter.]2   For the avoidance of doubt, if the first day of a calendar quarter falls on a weekend or a bank holiday (as determined by the Company in its sole discretion), any RSUs that would otherwise become earned and payable for such calendar quarter will become earned and payable on the next following business day.
Separation from Service:		If you have a Separation from Service, any RSUs that have not become earned prior to your Separation from Service will be immediately cancelled and forfeited in their entirety, and you will not be entitled to any payment with respect to such RSUs.
Nature of the RSU		The possibility to participate in the Nu Holdings Ltd. 2020 Omnibus Incentive Plan and the recognition of the RSU’s will constitute an extralegal benefit of non-salary nature for all legal purpose. Neither the amount of the RSU nor any economic benefit, payment or recognition made in virtue of this Agreement will be deemed as a payment of salary nature made to you by the Company or by Nu Colombia S.A., and, therefore, will not be included in the basis for any payment or benefit that you may be entitled to in your condition of employment by Nu Colombia S.A.
Governing Law and Dispute Resolution:		The RSU will be subject to the laws of the Cayman Islands. Any dispute arising out of or in connection with the RSU will be finally settled by arbitration, administered by the Center for Arbitration and Mediation of the Câmara de Comércio Brasil-Canadá. The seat of arbitration will be São Paulo, State of São Paulo, Brazil. The Arbitral Tribunal will consist of one arbitrator. Further details are set forth in the RSU Terms.

 

 

1	The Company could also provide that the RSUs become payable only upon certain events, such as if the employee is continuously employed through a Change in Control or IPO or following termination of employment if the employee is a good leaver.
2	Sample language provides for quarterly vesting over a 3-year period. Other vesting schedules are also permissible.

 

By signing below, you agree that the Award is granted under and governed by the terms of the Plan and this RSU Award Agreement (including the attached RSU Terms) (“Agreement”), as of the Grant Date.

 

PARTICIPANT				NU HOLDINGS LTD.
Sign Name:				Sign Name:
Print Name:				Print Name:
				Title:

 

RSU TERMS

 

1.	Grant of RSUs.

(a)    The Award is subject to the terms of the Plan. A copy of the Plan is attached to this Agreement as Exhibit A, and the terms of the Plan are incorporated into and form a part of this Agreement.

(b)    You must accept the terms of this Agreement by returning a signed copy to the Company within 60 days after the Agreement is presented to you for review. The Company or its delegate may unilaterally cancel and forfeit the Award in its entirety if you do not accept the terms of this Agreement.

 

2.	Restrictions.

(a)    You will have no rights or privileges of a Shareholder as to the RSUs before settlement under Section 5 below (“Settlement”), including no right to vote or receive dividends or other distributions; in addition, the following provisions will apply:

(i)    you will not be entitled to delivery of any Share certificates for the RSUs until Settlement (if at all), and upon the satisfaction of all other terms;

(ii)    for the avoidance of doubt, RSUs are not transferrable; you cannot and you may not sell, transfer (other than by will or the laws of descent and distribution), assign, pledge, or otherwise encumber or dispose of the RSUs before Settlement; and

(iii)    you will forfeit all of the RSUs and all of your rights under the RSUs will terminate in their entirety on the terms set forth in Section 4 below.

(b)    No certificates will be issued by the Company to you with respect to the RSUs.

(c)    Any attempt to dispose of RSUs or any interest in the RSUs in a manner contrary to the restrictions set forth in this Agreement will be void and of no effect.

3.    Restricted Period and Payment. The “Restricted Period” is the period beginning on the Grant Date and ending on the date the RSUs, or such applicable portion of the RSUs, are deemed earned and payable under the terms set forth in table at the beginning of this Agreement.

4.    Forfeiture. If, during the Restricted Period, (i) you incur a Separation from Service or (ii) you materially breach this Agreement or (iii) you fail to meet any tax obligation under your responsibility (when applicable), as described in Section 7, all of your rights to the RSUs that have not previously been paid will terminate immediately and be forfeited in their entirety.

5.    Settlement of RSUs. Delivery of Shares or other amounts under this Agreement will be subject to the following:

(a) The Company will deliver to you one Share for each RSU that has become earned and payable and not otherwise been forfeited within 30 days after the end of the applicable Restricted Period.

 

(b)    Any issuance of Shares under the Award may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the applicable rules of any securities exchange or similar entity.

(c)    If a certificate for Shares is delivered to you under the Award, the certificate may bear the following or a similar legend as determined by the Company:

AT THE DISCRETION OF THE COMPANY, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS AFTER THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER’S PRINCIPAL OFFICE. SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.

If the Shares are not certificated, the language above may be inserted on the pages of the register of members of the Company in which the Shares are registered. In addition, any certificates for Shares will be subject to any stop-transfer orders and other restrictions as the Company may deem advisable under the rules, regulations and other requirements of the SEC, any stock exchange on which the Shares are then listed and any applicable federal or state securities law, and the Company may cause legends to be placed on any certificates to make appropriate reference to these restrictions.

 

6.	Obligation to Sell and Transfer Restrictions.

(a)    If you propose to transfer the Shares after they are delivered to you pursuant to Section 5, you must promptly give the Company written notice of your intention to make the transfer (the “Transfer Notice”). The Transfer Notice must include (i) a description of the Shares to be transferred (“Offered Shares”), (ii) the names and addresses of the prospective transferees, (iii) the consideration and (iv) the material terms and conditions on which the proposed transfer is to be made. The Transfer Notice will certify that you have received a firm offer from the prospective transferees and in good faith believe a binding agreement for the transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice must also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. For the purpose of this Agreement, a “Transfer” will mean any direct or indirect transfer of the Shares to a third party as a consequence of any transaction, including, without limitation, an exchange of assets, a corporate reorganization or any other mechanism.

(b)    The Company will have an option for a period of 20 days from delivery of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Company may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying you in writing before expiration of such 20-day period as to the number of such shares that it wishes to purchase. If the Company gives you notice that it desires to purchase such shares, then payment for the Offered Shares will be by check or wire transfer, against delivery of an executed instrument of transfer at a place agreed on between the parties and at the time of the scheduled closing therefor, which will be no later than 30 days after delivery to the Company of the Transfer Notice.

 

(c)    For a period of 30 days following your Separation from Service, the Company will have the right, but not the obligation, to repurchase all or a portion of the Shares that you retain following your Separation from Service (determined in accordance with the Award) at their then-current Fair Market Value. The Company may freely assign the Company’s right to buy such Shares, in whole or in part.

(d)    Subject to the Company’s right to repurchase the Shares pursuant to Section 6(c), you will be entitled to exercise the right to sell Shares alongside a holder of the majority of the Ordinary Shares issued and outstanding as of the date of adoption of the Plan (a “Majority Shareholder”), to a third party interested in acquiring control of the Company in a transaction that constitutes a liquidation event as defined in the Company’s Memorandum and Articles of Association (a “Tag-Along Right”).

You must communicate your intention to exercise your Tag Along Right to the Company and the Majority Shareholder within 10 days of receiving notice of an offer submitted by a third party interested in acquiring control of the Company. If you exercise your Tag Along Right, the offer to acquire all or part of the shares of the Majority Shareholder will be extended in the same proportion to your Shares, at the same price per share and the same conditions of the offer submitted by the third party. If the third party only agrees to purchase the originally intended amount of shares subject to the proposed acquisition of control, the Majority Shareholder and all other Participants exercising a tag along right with respect to Shares granted under the Plan, including you, may sell to the third party an amount of Shares calculated pro-rata based on the percentage of the total share capital of the Company held by each Majority Shareholder, other Participants and you.

(e)    If the Majority Shareholder and all the preferred shareholders receive a good-faith binding offer with respect to a Transfer of all of their respective shares in the Company to a third party, which the Majority Shareholder and all the preferred shareholders are willing to accept and such offer is approved in accordance with the Company’s Memorandum and Articles of Association, then the Majority Shareholder will have the right to require that you, and you will be obliged to, sell all of your Shares to the third party on the same terms and conditions offered to the Majority Shareholder (a “Drag-Along Offer”). The Majority Shareholder will provide you, each investor and the Company with written notice (the “Drag-Along Notice”) not more than 60 days nor less than 10 days prior to the proposed closing date of the Drag-Along Offer. The Drag-Along Notice will be accompanied with the same information and documents as the Transfer Notice. For the avoidance of doubt, you acknowledge that the right of first refusal provided under Section 6(a), on one hand, and the Tag-Along Right, on the other hand, will not apply in the case of the exercise of the drag-along rights under this Section 6(e) by the Majority Shareholder or preferred shareholders.

 

7.	Withholding.

(a)    Regardless of any action the Company may take that is related to any or all corporate and personal income tax, payroll tax, social security tax, social wages or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items owed by you is and will remain your responsibility. Additionally, you will be responsible for the contribution to the social security systems as an investor according to the Colombian social security applicable regulations. The Company (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items under the Award and (ii) does not commit to structure the terms of the Award to reduce or eliminate your liability for Tax-Related Items.

 

(b)    You will be required to meet any applicable tax withholding obligation in accordance with the tax withholding provisions of Section 15.3 of the Plan (or any successor provision thereto). In the event of the Shares being retained so the Company may fulfill Tax-Related Items obligations on your behalf, the Company may, at its sole discretion, allow you to buy Shares of the Company for the same price based on which they are granted at the vesting of the RSUs.

You acknowledge that the foregoing is not, and is not intended to purport tax advice and that you may be subject to additional tax obligations all of which are your responsibility. You should consult your own tax advisor regarding the particular tax consequences of entering into the Agreement and the Award under this Agreement and exercising any rights related hereto.

8.    Adjustment. Upon any event described in Section 13 of the Plan (or any successor provision) occurring after the Grant Date, the adjustment provisions of that section will apply to the Award.

9.    Bound by Plan and Company Decisions. By accepting the Award, you acknowledge that you have received a copy of the Plan, have had an opportunity to review the Plan, and agree to be bound by all of the terms of the Plan. If there is any conflict between this Agreement and the Plan, the Plan will control. The authority to manage and control the operation and administration of this Agreement and the Plan is vested in the Company and its delegate. The Company and its delegate has all powers under this Agreement that it has under the Plan. Any interpretation of this Agreement or the Plan by the Company or its delegate and any decision made by the Company or its delegate related to the Agreement or the Plan will be final and binding on all persons.

10.    Your Representations. You represent to the Company that you have read and fully understand this Agreement and the Plan and that your decision to participate in the Plan is completely voluntary. You also acknowledge that you are relying solely on your own advisors regarding the tax consequences of the Award.

11.    Regulatory and Other Limitations. Notwithstanding anything else in this Agreement, the Company or its delegate may impose conditions, restrictions, and limitations on the issuance of Shares under the Award unless and until the Company or its delegate determines that the issuance complies with (a) all registration requirements under the Securities Act, (b) all listing requirements of any stock exchange on which the Shares are listed, (c) all Company policies and administrative rules and (d) all applicable laws.

 

12.	Miscellaneous.

(a)    Notices. Any notice that may be required or permitted under this Agreement must be in writing and may be delivered personally, by intraoffice mail or by electronic mail or via a postal service (postage prepaid) to the electronic mail or postal address and directed to the person as the receiving party may designate in writing from time to time.

(b)    Waiver. The waiver by any party to this Agreement of a breach of any provision of the Agreement will not operate or be construed as a waiver of any other or subsequent breach.

(c)    Entire Agreement. This Agreement and the Plan constitute the entire agreement between you and the Company related to the Award. Any prior agreements, commitments or negotiations concerning the Award are superseded.

 

(d)    Binding Effect and Successors. The obligations and rights of the Company under this Agreement will be binding on and inure to the benefit of the Company and any successor corporation or organization resulting from the merger, consolidation, sale or other reorganization of the Company, or on any successor corporation or organization succeeding to substantially all of the assets and business of the Company. Your obligations and rights under this Agreement will be binding on and inure to your benefit and the benefit of your beneficiaries, executors, administrators, heirs and successors.

(e)    Governing Law, Arbitration. This Agreement will be construed and interpreted in accordance with the internal laws of the Cayman Islands without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the Cayman Islands. For purposes of resolving any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Agreement, the parties hereto submit to a final and binding arbitration process, under the terms established in Law no. 9,307/1996, instead of through any court. You and the Company agree that, to the maximum extent under applicable law, an arbitral award, once issued, is final, not subject to appeal, and binding on all parties involved in the arbitration (“Arbitration Parties”) who automatically commit into observing the arbitral award. The dispute or claim brought to an arbitration under the terms of this Section 12(e), will be submitted to the Câmara de Comércio Brasil-Canadá (“Arbitral Institution”), as per its Arbitration Rules in force at the time of the commencement of the arbitration except as they may be modified herein or by mutual agreement of you and the Company. The arbitration will be held at the city of São Paulo, State of São Paulo, Brazil, where the arbitral award will be deemed rendered. The Arbitrator may designate other locations where specific acts may be held to assist the conducting of the arbitration. The arbitration will be conducted in Portuguese and the rules and principles of Laws of the Brazilian Federative Republic will be applied. The Arbitrator will not act as amiable compositeurs or decide the merits of the dispute ex aequo et bono. The Arbitrator will allocate the payment of the Expenses involved on the arbitration among the Arbitration Parties, observing the criteria of burden of defeat, reasonability and proportionality. For the purposes of this Section 12(e), “Expenses” are: (i) fees and other amounts owed, paid or reimbursed to the Arbitrator; (ii) the fees and other amounts owed, paid or reimbursed to the experts, translators, interpreters and other assistants that are eventually designated by the Arbitrator; and (iii) the loss of suit expenses established by the Arbitrator. The Arbitrator will not sentence any of the Arbitration Parties to pay or reimburse (i) contractual fees or any other amount owed, paid or reimbursed by the contrary party to its’ attorneys, technical assistants, translators, interpreters and other assistants; and (ii) any other amount owed, paid or reimbursed by the adverse party in connection with the arbitration, such as expenses with copies, authentications, notarizations, travels and others. The arbitration will be conducted by a sole arbitrator (“Arbitrator”). The Arbitration Parties will, by agreement, nominate the Arbitrator. If the Arbitration Parties fail to nominate the Arbitrator within 15 days from the date when the claimant’s request for arbitration has been received by respondent, the Arbitrator will be appointed by the Arbitral Institution. The choice of the Arbitrator is not limited to the Arbitral Institution’s list of arbitrators. Any and all controversies related to the nomination of the Arbitrator by the parties will be settled by the Arbitral Institution Injunctive relief. Either one of the Arbitration Parties has the right to seek injunctive relief to the competent judicial court for protecting the rights to be discussed before the confirmation of the Arbitrator’s appointment, without this being considered as a waiver of the arbitration. Any requests or injunctions granted by the judicial authority must be immediately notified to the Arbitral Institution, which will inform the Arbitrator. The Arbitrator may review, provide, keep or revoke an injunction. After the commencement of the proceeding, all urgent requests and injunctions must be submitted to the Arbitrator. For (i) the request of injunctive reliefs before the confirmation of the Arbitrator’s appointment; (ii) the enforcement of a decision rendered by the Arbitrator; or (iii) other matters permitted under applicable law, the parties hereby elect the competent court of the City of São Paulo, State of São Paulo. Nothing in this Section 12(e) will preclude the ability of either party to seek enforcement of the Arbitral Award in any jurisdiction or court, in Brazil or abroad, and consent to the exclusive jurisdiction of the competent court of the City of São Paulo, State of São Paulo.

 

(f)    Headings. The headings in this Agreement are for convenience of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.

(g)    Amendment. This Agreement may be amended at any time by the Company, except that no amendment may, without your consent, materially impair your rights under the Award.

(h)    Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of the Agreement, and each other provision will be severable and enforceable to the extent permitted by law.

(i)    No Rights to Service. Nothing in this Agreement will be construed as giving you any right to be retained in any position with the Company or its Affiliates. Nothing in this Agreement will interfere with or restrict the rights of the Company or its Affiliates—which are expressly reserved—to remove, terminate or discharge you at any time for any reason whatsoever or for no reason, subject to the Company’s certificate of incorporation, bylaws and other similar governing documents and applicable law.

(j)    Further Assurances. You must, upon request of the Company or its delegate, do all acts and execute, deliver and perform all additional documents, instruments and agreements that may be reasonably required by the Company or the Committee to implement the provisions and purposes of this Agreement.

(k)    Clawback. All awards, amounts or benefits received or outstanding under the Plan will be subject to clawback, cancellation, recoupment, rescission, payback, reduction or other similar action in accordance with the terms of any Company clawback or similar policy or any applicable law related to such actions, as may be in effect from time to time. You acknowledge and consent to the Company’s application, implementation and enforcement of any applicable Company clawback or similar policy that may apply to you, whether adopted before or after the Grant Date, and any provision of applicable law relating to clawback, cancellation, recoupment, rescission, payback or reduction of compensation, and the Company may take such actions as may be necessary to effectuate any such policy or applicable law, without further consideration or action.

(l)    Electronic Delivery and Acceptance. The Company may deliver any documents related to current or future participation in the Plan by electronic means. You consent to receive those documents by electronic delivery and to participate in the Plan through any on-line or electronic system established and maintained by the Company or a third party designated by the Company.

 

[FORM AGREEMENT FOR GERMAN TAXPAYERS]

EMPLOYEE RSU AWARD AGREEMENT

NU HOLDINGS LTD. 2020 OMNIBUS INCENTIVE PLAN

Nu Holdings Ltd. (the “Company”) grants to the Participant named below (“you”) the number of restricted stock units (“RSUs”) set forth below (the “Award”).

 

Plan:		Nu Holdings Ltd. 2020 Omnibus Incentive Plan
Defined Terms:		As set forth in the Plan, unless otherwise defined in this Agreement.
Participant:		[Name]
Participant Tax ID/CFP:		[########]
Participant Contact Information:		[ADDRESS] [ADDRESS] [EMAIL]
Grant Date:		[Date]
Number of RSUs Granted:		[####]
Definition of RSU:		Each RSU will entitle you to receive one Share at such future dates and subject to such terms as set forth in this Agreement. The RSUs granted under this Award will entitle you at no time to receive Shares of any entity other than the Company.

 

 

Earning and Payment Schedule:1		[PERFORMANCE CYCLE AWARDS: The RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter following the Grant Date.]   [SIGN-ON AWARDS: 1/4th of the total number of RSUs will become earned and payable on [DATE OF CLIFF VESTING]. The remaining RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter thereafter.]2   For the avoidance of doubt, if the first day of a calendar quarter falls on a weekend or a bank holiday (as determined by the Company in its sole discretion), any RSUs that would otherwise become earned and payable for such calendar quarter will become earned and payable on the next following business day.
Separation from Service:		If you have a Separation from Service, any RSUs that have not become earned prior to your Separation from Service will be immediately cancelled and forfeited in their entirety, and you will not be entitled to any payment with respect to such RSUs.   Section 15.7 of the Plan will not apply for this Award. Rather, the effective termination date will be the relevant date for determining the Separation of Service unless you are irrevocably released from your obligation to work up until the effective termination date in which case the beginning of the release period will be the relevant date for determining the Separation of Service.
Governing Law and Dispute Resolution:		The RSU will be subject to the laws of the Cayman Islands. Any dispute arising out of or in connection with the RSU will be finally settled by arbitration, administered by the Center for Arbitration and Mediation of the Câmara de Comércio Brasil-Canadá. The seat of arbitration will be São Paulo, State of São Paulo, Brazil. The Arbitral Tribunal will consist of one arbitrator. Further details are set forth in the RSU Terms.

 

1	The Company could also provide that the RSUs become payable only upon certain events, such as if the employee is continuously employed through a Change in Control or IPO or following termination of employment if the employee is a good leaver.
2	Sample language provides for quarterly vesting over a 3-year period. Other vesting schedules are also permissible.

 

By signing below, you agree that the Award is granted under and governed by the terms of the Plan and this RSU Award Agreement (including the attached RSU Terms) (“Agreement”), as of the Grant Date.

 

PARTICIPANT				NU HOLDINGS LTD.
Sign Name:				Sign Name:
Print Name:				Print Name:
				Title:

 

RSU TERMS

 

1.	Grant of RSUs.

(a)    The Award is subject to the terms of the Plan. A copy of the Plan is attached to this Agreement as Exhibit A, and the terms of the Plan are incorporated into and form a part of this Agreement.

(b)    You must accept the terms of this Agreement by returning a signed copy to the Company within 60 days after the Agreement is presented to you for review. The Company or its delegate may unilaterally cancel and forfeit the Award in its entirety if you do not accept the terms of this Agreement.

 

2.	Restrictions.

(a)    You will have no rights or privileges of a Shareholder as to the RSUs before settlement under Section 5 below (“Settlement”), including no right to vote or receive dividends or other distributions; in addition, the following provisions will apply:

(i)    you will not be entitled to delivery of any Share certificates for the RSUs until Settlement (if at all), and upon the satisfaction of all other terms;

(ii)    for the avoidance of doubt, RSUs are not transferrable; you cannot and you may not sell, transfer (other than by will or the laws of descent and distribution), assign, pledge, or otherwise encumber or dispose of the RSUs before Settlement; and

(iii)    you will forfeit all of the RSUs and all of your rights under the RSUs will terminate in their entirety on the terms set forth in Section 4 below.

(b)    No certificates will be issued by the Company to you with respect to the RSUs.

(c)     Any attempt to dispose of RSUs or any interest in the RSUs in a manner contrary to the restrictions set forth in this Agreement will be void and of no effect.

3.    Restricted Period and Payment. The “Restricted Period” is the period beginning on the Grant Date and ending on the date the RSUs, or such applicable portion of the RSUs, are deemed earned and payable under the terms set forth in table at the beginning of this Agreement.

4.    Forfeiture. If, during the Restricted Period, (i) you incur a Separation from Service or (ii) you materially breach this Agreement or (iii) you fail to meet any tax obligation under your responsibility (when applicable), as described in Section 7, all of your rights to the RSUs that have not previously been earned will terminate immediately and be forfeited in their entirety.

5.    Settlement of RSUs. Delivery of Shares or other amounts under this Agreement will be subject to the following:

(a)    The Company will deliver to you one Share for each RSU that has become earned and payable and not otherwise been forfeited within 30 days after the end of the applicable Restricted Period.

 

(b)    Any issuance of Shares under the Award may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the applicable rules of any securities exchange or similar entity.

(c)    If a certificate for Shares is delivered to you under the Award, the certificate may bear the following or a similar legend as determined by the Company:

AT THE DISCRETION OF THE COMPANY, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS AFTER THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER’S PRINCIPAL OFFICE. SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.

If the Shares are not certificated, the language above may be inserted on the pages of the register of members of the Company in which the Shares are registered. In addition, any certificates for Shares will be subject to any stop-transfer orders and other restrictions as the Company may deem advisable under the rules, regulations and other requirements of the SEC, any stock exchange on which the Shares are then listed and any applicable federal or state securities law, and the Company may cause legends to be placed on any certificates to make appropriate reference to these restrictions.

 

6.	Obligation to Sell and Transfer Restrictions.

(a)    If you propose to transfer the Shares after they are delivered to you pursuant to Section 5, you must promptly give the Company written notice of your intention to make the transfer (the “Transfer Notice”). The Transfer Notice must include (i) a description of the Shares to be transferred (“Offered Shares”), (ii) the names and addresses of the prospective transferees, (iii) the consideration and (iv) the material terms and conditions on which the proposed transfer is to be made. The Transfer Notice will certify that you have received a firm offer from the prospective transferees and in good faith believe a binding agreement for the transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice must also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. For the purpose of this Agreement, a “Transfer” will mean any direct or indirect transfer of the Shares to a third party as a consequence of any transaction, including, without limitation, an exchange of assets, a corporate reorganization or any other mechanism.

(b)    The Company will have an option for a period of 20 days from delivery of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Company may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying you in writing before expiration of such 20-day period as to the number of such shares that it wishes to purchase. If the Company gives you notice that it desires to purchase such shares, then payment for the Offered Shares will be by check or wire transfer, against delivery of an executed instrument of transfer at a place agreed on between the parties and at the time of the scheduled closing therefor, which will be no later than 30 days after delivery to the Company of the Transfer Notice.

 

(c)    For a period of 30 days following your Separation from Service, the Company will have the right, but not the obligation, to repurchase all or a portion of the Shares that you retain following your Separation from Service (determined in accordance with the Award) at their then-current Fair Market Value. The Company may freely assign the Company’s right to buy such Shares, in whole or in part.

(d)    Subject to the Company’s right to repurchase the Shares pursuant to Section 6(c), you will be entitled to exercise the right to sell Shares alongside a holder of the majority of the Ordinary Shares issued and outstanding as of the date of adoption of the Plan (a “Majority Shareholder”), to a third party interested in acquiring control of the Company in a transaction that constitutes a liquidation event as defined in the Company’s Memorandum and Articles of Association (a “Tag-Along Right”).

You must communicate your intention to exercise your Tag Along Right to the Company and the Majority Shareholder within 10 days of receiving notice of an offer submitted by a third party interested in acquiring control of the Company. If you exercise your Tag Along Right, the offer to acquire all or part of the shares of the Majority Shareholder will be extended in the same proportion to your Shares, at the same price per share and the same conditions of the offer submitted by the third party. If the third party only agrees to purchase the originally intended amount of shares subject to the proposed acquisition of control, the Majority Shareholder and all other Participants exercising a tag along right with respect to Shares granted under the Plan, including you, may sell to the third party an amount of Shares calculated pro-rata based on the percentage of the total share capital of the Company held by each Majority Shareholder, other Participants and you.

(e)    If the Majority Shareholder and all the preferred shareholders receive a good-faith binding offer with respect to a Transfer of all of their respective shares in the Company to a third party, which the Majority Shareholder and all the preferred shareholders are willing to accept and such offer is approved in accordance with the Company’s Memorandum and Articles of Association, then the Majority Shareholder will have the right to require that you, and you will be obliged to, sell all of your Shares to the third party on the same terms and conditions offered to the Majority Shareholder (a “Drag-Along Offer”). The Majority Shareholder will provide you, each investor and the Company with written notice (the “Drag-Along Notice”) not more than 60 days nor less than 10 days prior to the proposed closing date of the Drag-Along Offer. The Drag-Along Notice will be accompanied with the same information and documents as the Transfer Notice. For the avoidance of doubt, you acknowledge that the right of first refusal provided under Section 6(a), on one hand, and the Tag-Along Right, on the other hand, will not apply in the case of the exercise of the drag-along rights under this Section 6(e) by the Majority Shareholder or preferred shareholders.

 

7.	Withholding.

(a)    Regardless of any action the Company may take that is related to any or all corporate and personal income tax, payroll tax, social security tax, social wages or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items owed by you is and will remain your responsibility. The Company (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items under the Award and (ii) does not commit to structure the terms of the Award to reduce or eliminate your liability for Tax-Related Items.

(b)    You acknowledge and declare to comply with the provisions set forth in Section 15.3 of the Plan (or any successor provision thereto). Thereby, you will be required to meet any applicable tax withholding obligation in accordance with the tax withholding provisions of Section 15.3 of the Plan (or any successor provision thereto) and any applicable local law. In the event of the Shares being retained so the Company or a Subsidiary may fulfill Tax-Related Items obligations on your behalf, the Company may, at its sole discretion, allow you to buy Shares of the Company for the same price based on which they are granted upon the end of the Restricted Period.

 

(c)    Alternatively and at the discretion of the Company or a Subsidiary, as the case may be, you may be requested to submit, in cash, the amount corresponding to the Tax-Related Items due in connection with the Award, to the Company or a Subsidiary, as the case may be, so it may pay the Tax-Related Items on your behalf. If that is the case and in the event that you deliver such amount, you will receive the full amount of the RSUs in Shares. Any amount submitted in excess to the Company in excess for the payment of taxes on your behalf will be returned to you in cash in the same month.

(d)    You hereby acknowledge that the Company or a Subsidiary, as the case may be, will have the right to notify the competent tax office in the event that you do not comply with the aforementioned requirements and the provisions set forth in Section 15.3 of the Plan (or any successor provision thereto).

You acknowledge that the foregoing is not, and is not intended to purport tax advice and that you may be subject to additional tax obligations all of which are your responsibility. You should consult your own tax advisor regarding the particular tax consequences of entering into the Agreement and the Award under this Agreement and exercising any rights related hereto.

8.    Adjustment. Upon any event described in Section 13 of the Plan (or any successor provision) occurring after the Grant Date, the adjustment provisions of that section will apply to the Award.

9.    Bound by Plan and Company Decisions. By accepting the Award, you acknowledge that you have received a copy of the Plan, have had an opportunity to review the Plan, and agree to be bound by all of the terms of the Plan. If there is any conflict between this Agreement and the Plan, the Plan will control. The authority to manage and control the operation and administration of this Agreement and the Plan is vested in the Company and its delegate. The Company and its delegate has all powers under this Agreement that it has under the Plan. Any interpretation of this Agreement or the Plan by the Company or its delegate and any decision made by the Company or its delegate related to the Agreement or the Plan will be final and binding on all persons.

10.    Your Representations. You represent to the Company that you have read and fully understand this Agreement and the Plan and that your decision to participate in the Plan is completely voluntary. You also acknowledge that you are relying solely on your own advisors regarding the tax consequences of the Award.

11.    Regulatory and Other Limitations. Notwithstanding anything else in this Agreement, the Company or its delegate may impose conditions, restrictions, and limitations on the issuance of Shares under the Award unless and until the Company or its delegate determines that the issuance complies with (a) all registration requirements under the Securities Act, (b) all listing requirements of any stock exchange on which the Shares are listed, (c) all Company policies and administrative rules and (d) all applicable laws.

 

 

12.	Miscellaneous.

(a)    Notices. Any notice that may be required or permitted under this Agreement must be in writing and may be delivered personally, by intraoffice mail or by electronic mail or via a postal service (postage prepaid) to the electronic mail or postal address and directed to the person as the receiving party may designate in writing from time to time.

(b)    Waiver. The waiver by any party to this Agreement of a breach of any provision of the Agreement will not operate or be construed as a waiver of any other or subsequent breach.

(c)    Entire Agreement. This Agreement and the Plan constitute the entire agreement between you and the Company related to the Award. Any prior agreements, commitments or negotiations concerning the Award are superseded.

(d)    Binding Effect and Successors. The obligations and rights of the Company under this Agreement will be binding on and inure to the benefit of the Company and any successor corporation or organization resulting from the merger, consolidation, sale or other reorganization of the Company, or on any successor corporation or organization succeeding to substantially all of the assets and business of the Company. Your obligations and rights under this Agreement will be binding on and inure to your benefit and the benefit of your beneficiaries, executors, administrators, heirs and successors.

 

(e)    Governing Law, Arbitration. This Agreement will be construed and interpreted in accordance with the internal laws of the Cayman Islands without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the Cayman Islands. For purposes of resolving any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Agreement, the parties hereto submit to a final and binding arbitration process, under the terms established in Law no. 9,307/1996, instead of through any court. You and the Company agree that, to the maximum extent under applicable law, an arbitral award, once issued, is final, not subject to appeal, and binding on all parties involved in the arbitration (“Arbitration Parties”) who automatically commit into observing the arbitral award. The dispute or claim brought to an arbitration under the terms of this Section 12(e), will be submitted to the Câmara de Comércio Brasil-Canadá (“Arbitral Institution”), as per its Arbitration Rules in force at the time of the commencement of the arbitration except as they may be modified herein or by mutual agreement of you and the Company. The arbitration will be held at the city of São Paulo, State of São Paulo, Brazil, where the arbitral award will be deemed rendered. The Arbitrator may designate other locations where specific acts may be held to assist the conducting of the arbitration. The arbitration will be conducted in Portuguese and the rules and principles of Laws of the Brazilian Federative Republic will be applied. The Arbitrator will not act as amiable compositeurs or decide the merits of the dispute ex aequo et bono. The Arbitrator will allocate the payment of the Expenses involved on the arbitration among the Arbitration Parties, observing the criteria of burden of defeat, reasonability and proportionality. For the purposes of this Section 12(e), “Expenses” are: (i) fees and other amounts owed, paid or reimbursed to the Arbitrator; (ii) the fees and other amounts owed, paid or reimbursed to the experts, translators, interpreters and other assistants that are eventually designated by the Arbitrator; and (iii) the loss of suit expenses established by the Arbitrator. The Arbitrator will not sentence any of the Arbitration Parties to pay or reimburse (i) contractual fees or any other amount owed, paid or reimbursed by the contrary party to its’ attorneys, technical assistants, translators, interpreters and other assistants; and (ii) any other amount owed, paid or reimbursed by the adverse party in connection with the arbitration, such as expenses with copies, authentications, notarizations, travels and others. The arbitration will be conducted by a sole arbitrator (“Arbitrator”). The Arbitration Parties will, by agreement, nominate the Arbitrator. If the Arbitration Parties fail to nominate the Arbitrator within 15 days from the date when the claimant’s request for arbitration has been received by respondent, the Arbitrator will be appointed by the Arbitral Institution. The choice of the Arbitrator is not limited to the Arbitral Institution’s list of arbitrators. Any and all controversies related to the nomination of the Arbitrator by the parties will be settled by the Arbitral Institution Injunctive relief. Either one of the Arbitration Parties has the right to seek injunctive relief to the competent judicial court for protecting the rights to be discussed before the confirmation of the Arbitrator’s appointment, without this being considered as a waiver of the arbitration. Any requests or injunctions granted by the judicial authority must be immediately notified to the Arbitral Institution, which will inform the Arbitrator. The Arbitrator may review, provide, keep or revoke an injunction. After the commencement of the proceeding, all urgent requests and injunctions must be submitted to the Arbitrator. For (i) the request of injunctive reliefs before the confirmation of the Arbitrator’s appointment; (ii) the enforcement of a decision rendered by the Arbitrator; or (iii) other matters permitted under applicable law, the parties hereby elect the competent court of the City of São Paulo, State of São Paulo. Nothing in this Section 12(e) will preclude the ability of either party to seek enforcement of the Arbitral Award in any jurisdiction or court, in Brazil or abroad, and consent to the exclusive jurisdiction of the competent court of the City of São Paulo, State of São Paulo.

(f)    Headings. The headings in this Agreement are for convenience of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.

(g)    Amendment. This Agreement may be amended at any time by the Company, except that no amendment may, without your consent, materially impair your rights under the Award.

(h)    Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of the Agreement, and each other provision will be severable and enforceable to the extent permitted by law.

(i)    No Rights to Service. Nothing in this Agreement will be construed as giving you any right to be retained in any position with the Company or its Affiliates. Nothing in this Agreement will interfere with or restrict the rights of the Company or its Affiliates—which are expressly reserved—to remove, terminate or discharge you at any time for any reason whatsoever or for no reason, subject to the Company’s certificate of incorporation, bylaws and other similar governing documents and applicable law.

(j)    Further Assurances. You must, upon request of the Company or its delegate, do all acts and execute, deliver and perform all additional documents, instruments and agreements that may be reasonably required by the Company or the Committee to implement the provisions and purposes of this Agreement.

 

(k)    Clawback. All awards, amounts or benefits received or outstanding under the Plan will be subject to clawback, cancellation, recoupment, rescission, payback, reduction or other similar action in accordance with the terms of any Company clawback or similar policy or any applicable law related to such actions, as may be in effect from time to time. You acknowledge and consent to the Company’s application, implementation and enforcement of any applicable Company clawback or similar policy that may apply to you, whether adopted before or after the Grant Date, and any provision of applicable law relating to clawback, cancellation, recoupment, rescission, payback or reduction of compensation, and the Company may take such actions as may be necessary to effectuate any such policy or applicable law, without further consideration or action.

(l)    Electronic Delivery and Acceptance. The Company may deliver any documents related to current or future participation in the Plan by electronic means. You consent to receive those documents by electronic delivery and to participate in the Plan through any on-line or electronic system established and maintained by the Company or a third party designated by the Company.

 

[FORM AGREEMENT FOR MEXICAN TAXPAYERS]

EMPLOYEE RSU AWARD AGREEMENT

NU HOLDINGS LTD. 2020 OMNIBUS INCENTIVE PLAN

Nu Holdings Ltd. (the “Company”) grants to the Participant named below (“you”) the number of restricted stock units (“RSUs”) set forth below (the “Award”).

 

Plan:		Nu Holdings Ltd. 2020 Omnibus Incentive Plan
Defined Terms:		As set forth in the Plan, unless otherwise defined in this Agreement.
Participant:		[Name]
Participant Tax ID/CFP:		[########]
Participant Contact Information:		[ADDRESS] [ADDRESS] [EMAIL]
Grant Date:		[Date]
Number of RSUs Granted:		[####]
Definition of RSU:		Each RSU will entitle you to receive one Share at such future dates and subject to such terms as set forth in this Agreement. The RSUs granted under this Award will entitle you at no time to receive Shares of any entity other than the Company.

 

 

Earning and Payment Schedule:1		[PERFORMANCE CYCLE AWARDS: The RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter following the Grant Date.]   [SIGN-ON AWARDS: 1/4th of the total number of RSUs will become earned and payable on [DATE OF CLIFF VESTING]. The remaining RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter thereafter.]2   For the avoidance of doubt, if the first day of a calendar quarter falls on a weekend or a bank holiday (as determined by the Company in its sole discretion), any RSUs that would otherwise become earned and payable for such calendar quarter will become earned and payable on the next following business day.
Separation from Service:		If you have a Separation from Service, any RSUs that have not become earned prior to your Separation from Service will be immediately cancelled and forfeited in their entirety, and you will not be entitled to any payment with respect to such RSUs.
Governing Law and Dispute Resolution:		The RSU will be subject to the laws of the Cayman Islands. Any dispute arising out of or in connection with the RSU will be finally settled by arbitration, administered by the Center for Arbitration and Mediation of the Câmara de Comércio Brasil-Canadá. The seat of arbitration will be São Paulo, State of São Paulo, Brazil. The Arbitral Tribunal will consist of one arbitrator. Further details are set forth in the RSU Terms.

 

1	The Company could also provide that the RSUs become payable only upon certain events, such as if the employee is continuously employed, through a Change in Control or IPO or following termination of employment if the employee is a good leaver.
2	Sample language provides for quarterly vesting over a 3-year period. Other vesting schedules are also permissible.

 

By signing below, you agree that the Award is granted under and governed by the terms of the Plan and this RSU Award Agreement (including the attached RSU Terms) (“Agreement”), as of the Grant Date.

 

PARTICIPANT				NU HOLDINGS LTD.
Sign Name:				Sign Name:
Print Name:				Print Name:
				Title:

 

RSU TERMS

 

1.	Grant of RSUs.

(a)    The Award is subject to the terms of the Plan. A copy of the Plan is attached to this Agreement as Exhibit A, and the terms of the Plan are incorporated into and form a part of this Agreement.

(b)    You must accept the terms of this Agreement by returning a signed copy to the Company within 60 days after the Agreement is presented to you for review. The Company or its delegate may unilaterally cancel and forfeit the Award in its entirety if you do not accept the terms of this Agreement.

 

2.	Restrictions.

(a)    You will have no rights or privileges of a Shareholder as to the RSUs before settlement under Section 5 below (“Settlement”), including no right to vote or receive dividends or other distributions; in addition, the following provisions will apply:

(i)    you will not be entitled to delivery of any Share certificates for the RSUs until Settlement (if at all), and upon the satisfaction of all other terms;

(ii)    for the avoidance of doubt, RSUs are not transferrable; you cannot and you may not sell, transfer (other than by will or the laws of descent and distribution), assign, pledge, or otherwise encumber or dispose of the RSUs before Settlement; and

(iii)    you will forfeit all of the RSUs and all of your rights under the RSUs will terminate in their entirety on the terms set forth in Section 4 below.

(b)    No certificates will be issued by the Company to you with respect to the RSUs.

(c)    Any attempt to dispose of RSUs or any interest in the RSUs in a manner contrary to the restrictions set forth in this Agreement will be void and of no effect.

3.    Restricted Period and Payment. The “Restricted Period” is the period beginning on the Grant Date and ending on the date the RSUs, or such applicable portion of the RSUs, are deemed earned and payable under the terms set forth in table at the beginning of this Agreement.

4.    Forfeiture. If, during the Restricted Period, (i) you incur a Separation from Service, (ii) you materially breach this Agreement or (iii) you fail to meet any tax obligation under your responsibility (when applicable), as described in Section 7, all of your rights to the RSUs that have not previously been paid will terminate immediately and be forfeited in their entirety.

5.    Settlement of RSUs. Delivery of Shares or other amounts under this Agreement will be subject to the following:

(a)    The Company will deliver to you one Share for each RSU that has become earned and payable and not otherwise been forfeited within 30 days after the end of the applicable Restricted Period.

 

(b)    Any issuance of Shares under the Award may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the applicable rules of any securities exchange or similar entity.

(c)    If a certificate for Shares is delivered to you under the Award, the certificate may bear the following or a similar legend as determined by the Company:

AT THE DISCRETION OF THE COMPANY, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS AFTER THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER’S PRINCIPAL OFFICE. SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.

If the Shares are not certificated, the language above may be inserted on the pages of the register of members of the Company in which the Shares are registered. In addition, any certificates for Shares will be subject to any stop-transfer orders and other restrictions as the Company may deem advisable under the rules, regulations and other requirements of the SEC, any stock exchange on which the Shares are then listed and any applicable federal or state securities law, and the Company may cause legends to be placed on any certificates to make appropriate reference to these restrictions.

 

6.	Obligation to Sell and Transfer Restrictions.

(a)    If you propose to transfer the Shares after they are delivered to you pursuant to Section 5, you must promptly give the Company written notice of your intention to make the transfer (the “Transfer Notice”). The Transfer Notice must include (i) a description of the Shares to be transferred (“Offered Shares”), (ii) the names and addresses of the prospective transferees, (iii) the consideration and (iv) the material terms and conditions on which the proposed transfer is to be made. The Transfer Notice will certify that you have received a firm offer from the prospective transferees and in good faith believe a binding agreement for the transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice must also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. For the purpose of this Agreement, a “Transfer” will mean any direct or indirect transfer of the Shares to a third party as a consequence of any transaction, including, without limitation, an exchange of assets, a corporate reorganization or any other mechanism.

(b)    The Company will have an option for a period of 20 days from delivery of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Company may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying you in writing before expiration of such 20-day period as to the number of such shares that it wishes to purchase. If the Company gives you notice that it desires to purchase such shares, then payment for the Offered Shares will be by check or wire transfer, against delivery of an executed instrument of transfer at a place agreed on between the parties and at the time of the scheduled closing therefor, which will be no later than 30 days after delivery to the Company of the Transfer Notice.

 

(c)    For a period of 30 days following your Separation from Service, the Company will have the right, but not the obligation, to repurchase all or a portion of the Shares that you retain following your Separation from Service (determined in accordance with the Award) at their then-current Fair Market Value. The Company may freely assign the Company’s right to buy such Shares, in whole or in part.

(d)    Subject to the Company’s right to repurchase the Shares pursuant to Section 6(c), you will be entitled to exercise the right to sell Shares alongside a holder of the majority of the Ordinary Shares issued and outstanding as of the date of adoption of the Plan (a “Majority Shareholder”), to a third party interested in acquiring control of the Company in a transaction that constitutes a liquidation event as defined in the Company’s Memorandum and Articles of Association (a “Tag-Along Right”).

You must communicate your intention to exercise your Tag Along Right to the Company and the Majority Shareholder within 10 days of receiving notice of an offer submitted by a third party interested in acquiring control of the Company. If you exercise your Tag Along Right, the offer to acquire all or part of the shares of the Majority Shareholder will be extended in the same proportion to your Shares, at the same price per share and the same conditions of the offer submitted by the third party. If the third party only agrees to purchase the originally intended amount of shares subject to the proposed acquisition of control, the Majority Shareholder and all other Participants exercising a tag along right with respect to Shares granted under the Plan, including you, may sell to the third party an amount of Shares calculated pro-rata based on the percentage of the total share capital of the Company held by each Majority Shareholder, other Participants and you.

(e)    If the Majority Shareholder and all the preferred shareholders receive a good-faith binding offer with respect to a Transfer of all of their respective shares in the Company to a third party, which the Majority Shareholder and all the preferred shareholders are willing to accept and such offer is approved in accordance with the Company’s Memorandum and Articles of Association, then the Majority Shareholder will have the right to require that you, and you will be obliged to, sell all of your Shares to the third party on the same terms and conditions offered to the Majority Shareholder (a “Drag-Along Offer”). The Majority Shareholder will provide you, each investor and the Company with written notice (the “Drag-Along Notice”) not more than 60 days nor less than 10 days prior to the proposed closing date of the Drag-Along Offer. The Drag-Along Notice will be accompanied with the same information and documents as the Transfer Notice. For the avoidance of doubt, you acknowledge that the right of first refusal provided under Section 6(a), on one hand, and the Tag-Along Right, on the other hand, will not apply in the case of the exercise of the drag-along rights under this Section 6(e) by the Majority Shareholder or preferred shareholders.

 

7.	Withholding.

(a)    Regardless of any action the Company may take that is related to any or all income tax, payroll tax or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items owed by you is and will remain your responsibility. The Company (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items under the Award and (ii) does not commit to structure the terms of the Award to reduce or eliminate your liability for Tax-Related Items.

 

(b)    You will be required to meet any applicable tax withholding obligation in accordance with the tax withholding provisions of Section 15.3 of the Plan (or any successor provision thereto). In the event of the Shares being retained so the Company may fulfill Tax-Related Items obligations on your behalf, the Company may, at its sole discretion, allow you to buy Shares of the Company for the same price based on which they are granted at the vesting of the RSUs. You acknowledge that the foregoing is not, and is not intended to purport tax advice and that you may be subject to additional tax obligations all of which are your responsibility. You should consult your own tax advisor regarding the particular tax consequences of entering into the Agreement and the Award under this Agreement and exercising any rights related hereto.

8.    Adjustment. Upon any event described in Section 13 of the Plan (or any successor provision) occurring after the Grant Date, the adjustment provisions of that section will apply to the Award.

9.    Bound by Plan and Company Decisions. By accepting the Award, you acknowledge that you have received a copy of the Plan, have had an opportunity to review the Plan, and agree to be bound by all of the terms of the Plan. If there is any conflict between this Agreement and the Plan, the Plan will control. The authority to manage and control the operation and administration of this Agreement and the Plan is vested in the Company and its delegate. The Company and its delegate has all powers under this Agreement that it has under the Plan. Any interpretation of this Agreement or the Plan by the Company or its delegate and any decision made by the Company or its delegate related to the Agreement or the Plan will be final and binding on all persons.

10.    Your Representations. You represent to the Company that you have read and fully understand this Agreement and the Plan and that your decision to participate in the Plan is completely voluntary. You also acknowledge that you are relying solely on your own advisors regarding the tax consequences of the Award.

11.    Regulatory and Other Limitations. Notwithstanding anything else in this Agreement, the Company or its delegate may impose conditions, restrictions, and limitations on the issuance of Shares under the Award unless and until the Company or its delegate determines that the issuance complies with (a) all registration requirements under the Securities Act, (b) all listing requirements of any stock exchange on which the Shares are listed, (c) all Company policies and administrative rules and (d) all applicable laws.

 

12.	Miscellaneous.

(a)    Notices. Any notice that may be required or permitted under this Agreement must be in writing and may be delivered personally, by intraoffice mail or by electronic mail or via a postal service (postage prepaid) to the electronic mail or postal address and directed to the person as the receiving party may designate in writing from time to time.

(b)    Waiver. The waiver by any party to this Agreement of a breach of any provision of the Agreement will not operate or be construed as a waiver of any other or subsequent breach.

(c)    Entire Agreement. This Agreement and the Plan constitute the entire agreement between you and the Company related to the Award. Any prior agreements, commitments or negotiations concerning the Award are superseded.

 

(d)    Binding Effect and Successors. The obligations and rights of the Company under this Agreement will be binding on and inure to the benefit of the Company and any successor corporation or organization resulting from the merger, consolidation, sale or other reorganization of the Company, or on any successor corporation or organization succeeding to substantially all of the assets and business of the Company. Your obligations and rights under this Agreement will be binding on and inure to your benefit and the benefit of your beneficiaries, executors, administrators, heirs and successors.

(e)    Governing Law, Arbitration. This Agreement will be construed and interpreted in accordance with the internal laws of the Cayman Islands without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the Cayman Islands. For purposes of resolving any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Agreement, the parties hereto submit to a final and binding arbitration process, under the terms established in Law no. 9,307/1996, instead of through any court. You and the Company agree that, to the maximum extent under applicable law, an arbitral award, once issued, is final, not subject to appeal, and binding on all parties involved in the arbitration (“Arbitration Parties”) who automatically commit into observing the arbitral award. The dispute or claim brought to an arbitration under the terms of this Section 12(e), will be submitted to the Câmara de Comércio Brasil-Canadá (“Arbitral Institution”), as per its Arbitration Rules in force at the time of the commencement of the arbitration except as they may be modified herein or by mutual agreement of you and the Company. The arbitration will be held at the city of São Paulo, State of São Paulo, Brazil, where the arbitral award will be deemed rendered. The Arbitrator may designate other locations where specific acts may be held to assist the conducting of the arbitration. The arbitration will be conducted in Portuguese and the rules and principles of Laws of the Brazilian Federative Republic will be applied. The Arbitrator will not act as amiable compositeurs or decide the merits of the dispute ex aequo et bono. The Arbitrator will allocate the payment of the Expenses involved on the arbitration among the Arbitration Parties, observing the criteria of burden of defeat, reasonability and proportionality. For the purposes of this Section 12(e), “Expenses” are: (i) fees and other amounts owed, paid or reimbursed to the Arbitrator; (ii) the fees and other amounts owed, paid or reimbursed to the experts, translators, interpreters and other assistants that are eventually designated by the Arbitrator; and (iii) the loss of suit expenses established by the Arbitrator. The Arbitrator will not sentence any of the Arbitration Parties to pay or reimburse (i) contractual fees or any other amount owed, paid or reimbursed by the contrary party to its’ attorneys, technical assistants, translators, interpreters and other assistants; and (ii) any other amount owed, paid or reimbursed by the adverse party in connection with the arbitration, such as expenses with copies, authentications, notarizations, travels and others. The arbitration will be conducted by a sole arbitrator (“Arbitrator”). The Arbitration Parties will, by agreement, nominate the Arbitrator. If the Arbitration Parties fail to nominate the Arbitrator within 15 days from the date when the claimant’s request for arbitration has been received by respondent, the Arbitrator will be appointed by the Arbitral Institution. The choice of the Arbitrator is not limited to the Arbitral Institution’s list of arbitrators. Any and all controversies related to the nomination of the Arbitrator by the parties will be settled by the Arbitral Institution Injunctive relief. Either one of the Arbitration Parties has the right to seek injunctive relief to the competent judicial court for protecting the rights to be discussed before the confirmation of the Arbitrator’s appointment, without this being considered as a waiver of the arbitration. Any requests or injunctions granted by the judicial authority must be immediately notified to the Arbitral Institution, which will inform the Arbitrator. The Arbitrator may review, provide, keep or revoke an injunction. After the commencement of the proceeding, all urgent requests and injunctions must be submitted to the Arbitrator. For (i) the request of injunctive reliefs before the confirmation of the Arbitrator’s appointment; (ii) the enforcement of a decision rendered by the Arbitrator; or (iii) other matters permitted under applicable law, the parties hereby elect the competent court of the City of São Paulo, State of São Paulo. Nothing in this Section 12(e) will preclude the ability of either party to seek enforcement of the Arbitral Award in any jurisdiction or court, in Brazil or abroad, and consent to the exclusive jurisdiction of the competent court of the City of São Paulo, State of São Paulo.

 

(f)    Headings. The headings in this Agreement are for convenience of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.

(g)    Amendment. This Agreement may be amended at any time by the Company, except that no amendment may, without your consent, materially impair your rights under the Award.

(h)    Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of the Agreement, and each other provision will be severable and enforceable to the extent permitted by law.

(i)    No Rights to Service. Nothing in this Agreement will be construed as giving you any right to be retained in any position with the Company or its Affiliates. Nothing in this Agreement will interfere with or restrict the rights of the Company or its Affiliates—which are expressly reserved—to remove, terminate or discharge you at any time for any reason whatsoever or for no reason, subject to the Company’s certificate of incorporation, bylaws and other similar governing documents and applicable law.

(j)    Further Assurances. You must, upon request of the Company or its delegate, do all acts and execute, deliver and perform all additional documents, instruments and agreements that may be reasonably required by the Company or the Committee to implement the provisions and purposes of this Agreement.

(k)    Clawback. All awards, amounts or benefits received or outstanding under the Plan will be subject to clawback, cancellation, recoupment, rescission, payback, reduction or other similar action in accordance with the terms of any Company clawback or similar policy or any applicable law related to such actions, as may be in effect from time to time. You acknowledge and consent to the Company’s application, implementation and enforcement of any applicable Company clawback or similar policy that may apply to you, whether adopted before or after the Grant Date, and any provision of applicable law relating to clawback, cancellation, recoupment, rescission, payback or reduction of compensation, and the Company may take such actions as may be necessary to effectuate any such policy or applicable law, without further consideration or action.

(l)    Electronic Delivery and Acceptance. The Company may deliver any documents related to current or future participation in the Plan by electronic means. You consent to receive those documents by electronic delivery and to participate in the Plan through any on-line or electronic system established and maintained by the Company or a third party designated by the Company.

(m)    Not Part of Compensation. The value of the Award is an extraordinary item of compensation that is outside of the scope any employment, consultancy or directorship contract or relationship. The Award is not part of normal or expected compensation or salary for purposes of calculating severance, end of service payments, bonuses, pension or retirement benefits or similar payments.

 

[FORM AGREEMENT FOR US TAXPAYERS]

EMPLOYEE RSU AWARD AGREEMENT

NU HOLDINGS LTD. 2020 OMNIBUS INCENTIVE PLAN

Nu Holdings Ltd. (the “Company”) grants to the Participant named below (“you”) the number of restricted stock units (“RSUs”) set forth below (the “Award”).

 

Plan:		Nu Holdings Ltd. 2020 Omnibus Incentive Plan
Defined Terms:		As set forth in the Plan, unless otherwise defined in this Agreement.
Participant:		[Name]
Participant Tax ID/CFP:		[########]
Participant Contact Information:		[ADDRESS] [ADDRESS] [EMAIL]
Grant Date:		[Date]
Number of RSUs Granted:		[####]

 

 

Definition of RSU:		Each RSU will entitle you to receive one Share at such future dates and subject to such terms as set forth in this Agreement. The RSUs granted under this Award will entitle you at no time to receive Shares of any entity other than the Company.
Earning and Payment Schedule:1		[PERFORMANCE CYCLE AWARDS: The RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter following the Grant Date.]   [SIGN-ON AWARDS: 1/4th of the total number of RSUs will become earned and payable on [DATE OF CLIFF VESTING]. The remaining RSUs will become earned and payable in installments equal to 1/12th of the total number of RSUs on the first business day of each calendar quarter thereafter.]2   For the avoidance of doubt, if the first day of a calendar quarter falls on a weekend or a bank holiday (as determined by the Company in its sole discretion), any RSUs that would otherwise become earned and payable for such calendar quarter will become earned and payable on the next following business day.
Separation from Service:		If you have a Separation from Service, any RSUs that have not become earned prior to your Separation from Service will be immediately cancelled and forfeited in their entirety, and you will not be entitled to any payment with respect to such RSUs.

By signing below, you agree that the Award is granted under and governed by the terms of the Plan and this RSU Award Agreement (including the attached RSU Terms) (“Agreement”), as of the Grant Date.

 

PARTICIPANT						NU HOLDINGS LTD.
Sign Name:						Sign Name:
Print Name:						Print Name:
						Title:

 

1	The Company could also provide that the RSUs become payable only upon certain events, such as if the employee is continuously employed through a Change in Control or IPO or following termination of employment if the employee is a good leaver.
2	Sample language provides for quarterly vesting over a 3-year period. Other vesting schedules are also permissible.

 

RSU TERMS

 

1.	Grant of RSUs.

(a)    The Award is subject to the terms of the Plan. A copy of the Plan is attached to this Agreement as Exhibit A, and the terms of the Plan are incorporated into and form a part of this Agreement.

(b)    You must accept the terms of this Agreement by returning a signed copy to the Company within 60 days after the Agreement is presented to you for review. The Company or its delegate may unilaterally cancel and forfeit the Award in its entirety if you do not accept the terms of this Agreement.

 

2.	Restrictions.

(a)    You will have no rights or privileges of a Shareholder as to the RSUs before settlement under Section 5 below (“Settlement”), including no right to vote or receive dividends or other distributions; in addition, the following provisions will apply:

(i)    you will not be entitled to delivery of any Share certificates for the RSUs until Settlement (if at all), and upon the satisfaction of all other terms;

(ii)    for the avoidance of doubt, RSUs are not transferrable; you cannot and you may not sell, transfer (other than by will or the laws of descent and distribution), assign, pledge, or otherwise encumber or dispose of the RSUs before Settlement; and

(iii)    you will forfeit all of the RSUs and all of your rights under the RSUs will terminate in their entirety on the terms set forth in Section 4 below.

(b)    No certificates will be issued by the Company to you with respect to the RSUs.

(c)    Any attempt to dispose of RSUs or any interest in the RSUs in a manner contrary to the restrictions set forth in this Agreement will be void and of no effect.

3.    Restricted Period and Payment. The “Restricted Period” is the period beginning on the Grant Date and ending on the date the RSUs, or such applicable portion of the RSUs, are deemed earned and payable under the terms set forth in table at the beginning of this Agreement.

4.    Forfeiture. If, during the Restricted Period, (i) you incur a Separation from Service, (ii) you materially breach this Agreement or (iii) you fail to meet the tax withholding obligations described in Section 7, all of your rights to the RSUs that have not previously been paid will terminate immediately and be forfeited in their entirety.

5.    Settlement of RSUs. Delivery of Shares or other amounts under this Agreement will be subject to the following:

(a)    The Company will deliver to you one Share for each RSU that has become earned and payable and not otherwise been forfeited within 30 days after the end of the applicable Restricted Period.

 

(b)    Any issuance of Shares under the Award may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the applicable rules of any securities exchange or similar entity.

(c)    If a certificate for Shares is delivered to you under the Award, the certificate may bear the following or a similar legend as determined by the Company:

AT THE DISCRETION OF THE COMPANY, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO A LOCK-UP PERIOD OF UP TO 180 DAYS AFTER THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER’S PRINCIPAL OFFICE. SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.

If the Shares are not certificated, the language above may be inserted on the pages of the register of members of the Company in which the Shares are registered. In addition, any certificates for Shares will be subject to any stop-transfer orders and other restrictions as the Company may deem advisable under the rules, regulations and other requirements of the SEC, any stock exchange on which the Shares are then listed and any applicable federal or state securities law, and the Company may cause legends to be placed on any certificates to make appropriate reference to these restrictions.

 

6.	Obligation to Sell and Transfer Restrictions.

(a)    If you propose to transfer the Shares after they are delivered to you pursuant to Section 5, you must promptly give the Company written notice of your intention to make the transfer (the “Transfer Notice”). The Transfer Notice must include (i) a description of the Shares to be transferred (“Offered Shares”), (ii) the names and addresses of the prospective transferees, (iii) the consideration and (iv) the material terms and conditions on which the proposed transfer is to be made. The Transfer Notice will certify that you have received a firm offer from the prospective transferees and in good faith believe a binding agreement for the transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice must also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer. For the purpose of this Agreement, a “Transfer” will mean any direct or indirect transfer of the Shares to a third party as a consequence of any transaction, including, without limitation, an exchange of assets, a corporate reorganization or any other mechanism.

(b)    The Company will have an option for a period of 20 days from delivery of the Transfer Notice to elect to purchase the Offered Shares at the same price and subject to the same material terms and conditions as described in the Transfer Notice. The Company may exercise such purchase option and purchase all or any portion of the Offered Shares by notifying you in writing before expiration of such 20-day period as to the number of such shares that it wishes to purchase. If the Company gives you notice that it desires to purchase such shares, then payment for the Offered Shares will be by check or wire transfer, against delivery of an executed instrument of transfer at a place agreed on between the parties and at the time of the scheduled closing therefor, which will be no later than 30 days after delivery to the Company of the Transfer Notice.

 

(c)    For a period of 30 days following your Separation from Service, the Company will have the right, but not the obligation, to repurchase all or a portion of the Shares that you retain following your Separation from Service (determined in accordance with the Award) at their then-current Fair Market Value. The Company may freely assign the Company’s right to buy such Shares, in whole or in part.

(d)    Subject to the Company’s right to repurchase the Shares pursuant to Section 6(c), you will be entitled to exercise the right to sell Shares alongside a holder of the majority of the Ordinary Shares issued and outstanding as of the date of adoption of the Plan (a “Majority Shareholder”), to a third party interested in acquiring control of the Company in a transaction that constitutes a liquidation event as defined in the Company’s Memorandum and Articles of Association (a “Tag-Along Right”).

You must communicate your intention to exercise your Tag Along Right to the Company and the Majority Shareholder within 10 days of receiving notice of an offer submitted by a third party interested in acquiring control of the Company. If you exercise your Tag Along Right, the offer to acquire all or part of the shares of the Majority Shareholder will be extended in the same proportion to your Shares, at the same price per share and the same conditions of the offer submitted by the third party. If the third party only agrees to purchase the originally intended amount of shares subject to the proposed acquisition of control, the Majority Shareholder and all other Participants exercising a tag along right with respect to Shares granted under the Plan, including you, may sell to the third party an amount of Shares calculated pro-rata based on the percentage of the total share capital of the Company held by each Majority Shareholder, other Participants and you.

(e)    If the Majority Shareholder and all the preferred shareholders receive a good-faith binding offer with respect to a Transfer of all of their respective shares in the Company to a third party, which the Majority Shareholder and all the preferred shareholders are willing to accept and such offer is approved in accordance with the Company’s Memorandum and Articles of Association, then the Majority Shareholder will have the right to require that you, and you will be obliged to, sell all of your Shares to the third party on the same terms and conditions offered to the Majority Shareholder (a “Drag-Along Offer”). The Majority Shareholder will provide you, each investor and the Company with written notice (the “Drag-Along Notice”) not more than 60 days nor less than 10 days prior to the proposed closing date of the Drag-Along Offer. The Drag-Along Notice will be accompanied with the same information and documents as the Transfer Notice. For the avoidance of doubt, you acknowledge that the right of first refusal provided under Section 6(a), on one hand, and the Tag-Along Right, on the other hand, will not apply in the case of the exercise of the drag-along rights under this Section 6(e) by the Majority Shareholder or preferred shareholders.

 

7.	Withholding.

(a)    Regardless of any action the Company may take that is related to any or all income tax, payroll tax or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items owed by you is and will remain your responsibility. The Company (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items under the Award and (ii) does not commit to structure the terms of the Award to reduce or eliminate your liability for Tax-Related Items.

 

(b)    You will be required to meet any applicable tax withholding obligation in accordance with the tax withholding provisions of Section 15.3 of the Plan (or any successor provision thereto). You acknowledge that the foregoing is not, and is not intended to purport tax advice and that you may be subject to additional tax obligations all of which are your responsibility. You should consult your own tax advisor regarding the particular tax consequences of entering into the Agreement and the Award under this Agreement and exercising any rights related hereto.

8.    Adjustment. Upon any event described in Section 13 of the Plan (or any successor provision) occurring after the Grant Date, the adjustment provisions of that section will apply to the Award.

9.    Bound by Plan and Company Decisions. By accepting the Award, you acknowledge that you have received a copy of the Plan, have had an opportunity to review the Plan, and agree to be bound by all of the terms of the Plan. If there is any conflict between this Agreement and the Plan, the Plan will control. The authority to manage and control the operation and administration of this Agreement and the Plan is vested in the Company and its delegate. The Company and its delegate has all powers under this Agreement that it has under the Plan. Any interpretation of this Agreement or the Plan by the Company or its delegate and any decision made by the Company or its delegate related to the Agreement or the Plan will be final and binding on all persons.

10.    Your Representations. You represent to the Company that you have read and fully understand this Agreement and the Plan and that your decision to participate in the Plan is completely voluntary. You also acknowledge that you are relying solely on your own advisors regarding the tax consequences of the Award.

11.    Regulatory and Other Limitations. Notwithstanding anything else in this Agreement, the Company or its delegate may impose conditions, restrictions, and limitations on the issuance of Shares under the Award unless and until the Company or its delegate determines that the issuance complies with (a) all registration requirements under the Securities Act, (b) all listing requirements of any stock exchange on which the Shares are listed, (c) all Company policies and administrative rules and (d) all applicable laws.

 

12.	Miscellaneous.

(a)    Notices. Any notice that may be required or permitted under this Agreement must be in writing and may be delivered personally, by intraoffice mail or by electronic mail or via a postal service (postage prepaid) to the electronic mail or postal address and directed to the person as the receiving party may designate in writing from time to time.

(b)    Waiver. The waiver by any party to this Agreement of a breach of any provision of the Agreement will not operate or be construed as a waiver of any other or subsequent breach.

(c)    Entire Agreement. This Agreement and the Plan constitute the entire agreement between you and the Company related to the Award. Any prior agreements, commitments or negotiations concerning the Award are superseded.

(d)    Binding Effect and Successors. The obligations and rights of the Company under this Agreement will be binding on and inure to the benefit of the Company and any successor corporation or organization resulting from the merger, consolidation, sale or other reorganization of the Company, or on any successor corporation or organization succeeding to substantially all of the assets and business of the Company. Your obligations and rights under this Agreement will be binding on and inure to your benefit and the benefit of your beneficiaries, executors, administrators, heirs and successors.

 

(e)    Governing Law, Consent to Jurisdiction and Venue and Service of Process3. This Agreement will be construed and interpreted in accordance with the internal laws of the Cayman Islands without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction that could cause the application of the laws of any jurisdiction other than the Cayman Islands. For purposes of resolving any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Agreement, the parties hereto submit to and consent to the exclusive jurisdiction of [STATE] and agree that any related litigation must be conducted solely in the courts of [COUNTY] or [the federal courts for the United States for the [DISTRICT]], where this Agreement is made or will be performed, and no other courts. You may be served with process in any manner permitted under [STATE] law, or by United States registered or certified mail, return receipt requested.

(f)    Headings. The headings in this Agreement are for convenience of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.

(g)    Amendment. This Agreement may be amended at any time by the Company, except that no amendment may, without your consent, materially impair your rights under the Award.

(h)    Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of the Agreement, and each other provision will be severable and enforceable to the extent permitted by law.

(i)    No Rights to Service. Nothing in this Agreement will be construed as giving you any right to be retained in any position with the Company or its Affiliates. Nothing in this Agreement will interfere with or restrict the rights of the Company or its Affiliates—which are expressly reserved—to remove, terminate or discharge you at any time for any reason whatsoever or for no reason, subject to the Company’s certificate of incorporation, bylaws and other similar governing documents and applicable law.

(j)    Further Assurances. You must, upon request of the Company or its delegate, do all acts and execute, deliver and perform all additional documents, instruments and agreements that may be reasonably required by the Company or the Committee to implement the provisions and purposes of this Agreement.

(k)    Clawback. All awards, amounts or benefits received or outstanding under the Plan will be subject to clawback, cancellation, recoupment, rescission, payback, reduction or other similar action in accordance with the terms of any Company clawback or similar policy or any applicable law related to such actions, as may be in effect from time to time. You acknowledge and consent to the Company’s application, implementation and enforcement of any applicable Company clawback or similar policy that may apply to you, whether adopted before or after the Grant Date, and any provision of applicable law relating to clawback, cancellation, recoupment, rescission, payback or reduction of compensation, and the Company may take such actions as may be necessary to effectuate any such policy or applicable law, without further consideration or action.

 

3

For employees working in the United States, this provision must be revised to reflect any requirements of state law where the employee is employed. For example, some states limit the application of other governing laws or the permissible venues. Arbitration provisions may also be included, subject to the state law where the employee is employed.

 

(l)    Electronic Delivery and Acceptance. The Company may deliver any documents related to current or future participation in the Plan by electronic means. You consent to receive those documents by electronic delivery and to participate in the Plan through any on-line or electronic system established and maintained by the Company or a third party designated by the Company.

(m)    Code § 409A. The RSUs are intended to comply with Code § 409A to the extent subject thereto, and this Agreement will be administered and interpreted consistently with that intent. For purposes of Code § 409A, each installment payment under this Agreement or the Plan, or otherwise payable to you, will be treated as a separate payment. This paragraph will not be construed as a guarantee of any particular tax effect for your benefits under this Agreement and the Company does not guarantee that any such benefits will satisfy Code § 409A or any other provision of the Code. Notwithstanding anything else in this Agreement, to the extent required to avoid accelerated taxation or tax penalties under Code § 409A, amounts that would otherwise be payable and benefits that would otherwise be provided under this Agreement during the six-month period immediately following your Separation from Service will instead be paid on the first payroll date after the six-month anniversary of your Separation from Service (or your death, if earlier) if you are a specified employee within the meaning of Code § 409A. Notwithstanding the foregoing, neither the Company nor its delegate will have any obligation to take any action to prevent the assessment of any additional tax or penalty on you under Code § 409A and neither the Company nor its delegate will have any liability to you for such tax or penalty.

 

Exhibit 10.3

 

NU HOLDINGS LTD.		NU HOLDINGS LTD.
SHARE OPTION PLAN		PLANO DE OPÇÃO DE COMPRA DE
		AÇÕES
1.      Purposes of the Plan and Investors.		1.      Objetivos do Plano e Investidores.
1.1    Purposes. The purpose of this Share Option Plan (“Plan”) is the granting of non- qualified share options (“Options”) issued by Nu Holdings Ltd. (“Company”) to encourage its key executives, professionals and other persons or legal entities performing bona fide services to the Company or any of its direct or indirect subsidiaries (“Investors”) to invest in the Company, to promote their commitment to the Company’s results and the expansion of its business in the long term, by providing Investors with the opportunity to acquire shares of the Company, subject to the terms and conditions provided herein. The formalization of the Plan shall occur upon the execution by the Company and each Investor of an Option Grant Agreement which shall specify the individual terms and conditions under which the option for subscription of shares of the Company is granted (“Option Grant Agreement” – Annex II).		1.1    Objetivos. Este Plano de Opção de Compra de Ações (“Plano”) tem por objetivo a concessão de opções de ações de emissão da Nu Holdings Ltd. (“Sociedade”), com o intuito de incentivar seus principais executivos, profissionais e demais pessoas físicas ou jurídicas prestadoras de serviços de boa-fé para a Sociedade ou quaisquer de suas subsidiárias diretas ou indiretas (“Investidores”) a investirem na Sociedade, promovendo seu compromisso com os resultados da Sociedade e a expansão de suas atividades ao longo prazo, concedendo aos Investidores a oportunidade de adquirirem ações da Sociedade, sujeito aos termos e às condições estabelecidos no presente Plano. O Plano será formalizado através da celebração pela Sociedade e por cada Investidor de um Termo de Outorga de Opção, o qual deverá especificar os termos e as condições individuais aplicáveis à concessão de sua opção para a subscrição de ações da Sociedade (“Termo de Outorga de Opção” – Anexo II).
1.2    Nature. The Plan has a mercantile nature, is optional, onerous, does not assure future gains, and shall not be interpreted as compensation or salary.		1.2    Natureza. O Plano possui natureza mercantil, opcional, onerosa, bem como não garante ganhos futuros, e não deve ser interpretado como remuneração ou salário.
2.      Management of the Plan.		2.      Administração do Plano.
2.1    Management. The Plan shall be managed by the Board of Directors of the Company; provided, however, that the Company’s Chief Executive Officer (the “CEO”) shall have the authority to manage grants to an Investor for Option Shares (as defined below) constituting one percent (1%) or less of the Company’s then outstanding fully diluted capital stock (i.e., assuming full conversion and/or exercise of all Preferred Shares, as well as any shares held at Company’s treasury, if applicable).		2.1    Administração. O Plano será administrado pelo Conselho de Administração da Sociedade; estabelecido, no entanto, que o Diretor Presidente da Sociedade (o “Diretor Presidente”) terá autoridade para administrar as outorgas de Ações da Opção (conforme definição a seguir) a um Investidor que represente 1% (um por cento) ou menos do capital social da Sociedade totalmente diluído à época em circulação (ou seja, assumindo a integral conversão e/ou exercício de todas as Ações Preferenciais, bem como quaisquer ações mantidas na tesouraria da Sociedade, se aplicável).

 

 

2.2    Authority. Subject to the terms and conditions of the Plan the directors (or the CEO, as applicable) shall have full authority to take all necessary and adequate measures for the management of the Plan.		2.2    Autoridade. Sujeito aos termos e as condições do Plano, os conselheiros (ou o Diretor Presidente, conforme aplicável) terão plena autoridade para adotar todas as medidas necessárias e adequadas à administração do Plano.
3.      Shares Subject to the Plan.		3.      Ações Objeto do Plano.
3.1    Limit of Share Options Granted. The options to subscribe for shares granted herein refer to the rights for the subscription of an aggregate number of Class A Ordinary Shares of the Company, as defined in the Company’s Memorandum and Articles of Association, as amended from time to time (“Ordinary Shares”) equal to the aggregate number of Ordinary Shares of the Company that are authorized to be awarded under the Company’s 2020 Omnibus Incentive Plan. The Company shall, during the term of the Plan, at all times reserve and keep available sufficient Ordinary Shares to satisfy the requirements of the Plan. Ordinary Shares offered under the Plan may be authorized but unissued Ordinary Shares.		3.1    Limite às Opções de Ações Concedidas. As opções de subscrição de ações aqui concedidas referem-se aos direitos de subscrição de um número total de Ações Ordinárias de Classe A da Sociedade, conforme definido no Memorando e Contrato Social da Sociedade, conforme alterado de tempos em tempos (“Ações Ordinárias”) igual ao número total de Ações Ordinárias da Sociedade que estão autorizadas a serem outorgadas sob o Plano de Incentivo Omnibus 2020 da Sociedade. A Sociedade deverá, durante a vigência do Plano, reservar e manter sempre disponíveis Ações Ordinárias suficientes para satisfazer as exigências do Plano. As Ações Ordinárias oferecidas sob o Plano podem ser Ações Ordinárias autorizadas mas não emitidas.
3.2    Additional Shares. In the event that an outstanding Option for any reason expires or is canceled, the Ordinary Shares allocable to the unexercised portion of such Option shall be added to the number of Ordinary Shares then available for issuance under the Plan. For the avoidance of doubt, the following will not again become available for issuance under the Plan: (i) any Ordinary Shares withheld in respect of taxes relating to any Option and (ii) any Ordinary Shares tendered or withheld to pay the exercise price of Options.		3.2    Ações Adicionais. Caso as Ações Ordinárias anteriormente emitidas sob este Plano sejam readquiridas pela Sociedade, tais Ações Ordinárias serão acrescentadas ao número de Ações Ordinárias então disponível para emissão sob este Plano. Caso uma Opção em circulação expire ou seja cancelada por qualquer motivo, as Ações Ordinárias alocáveis para a parte não exercida de tal Opção serão incluídas ao número de Ações Ordinárias disponíveis para emissão sob este Plano.
3.3    Rights of the Shares. The Option Shares subscribed for and paid up by the Investors upon the exercise of each Option shall bear all rights and obligations of the Ordinary Shares of the Company, pursuant to the Company’s Memorandum and Articles of Association.		3.3    Direitos das Ações. As Ações da Opção subscritas e integralizadas pelos Investidores quando do exercício de cada Opção terão todos os direitos e obrigações inerentes às Ações Ordinárias da Sociedade, de acordo com o estatuto social da Sociedade.

 

 

4.      Options.		4.      Opções.
4.1    Options. The Company may grant to each of the Investors Options to subscribe for a certain number of Ordinary Shares of the Company, as set forth on the respective Option Grant Agreement to be executed by the Company and an Investor (the “Option Shares”). The maximum number of Ordinary Shares which may be issued under this Plan shall be equal to the aggregate number of Ordinary Shares of the Company that are authorized to be awarded under the Company’s 2020 Omnibus Incentive Plan		4.1    Opções. A Sociedade poderá oferecer a cada Investidor a opção (cada, uma “Opção”) de subscrever certa determinada quantidade de Ações Ordinárias da Sociedade, conforme descrito no respectivo Termo de Outorga de Opção a ser celebrado pela Sociedade e por um Investidor (as “Ações da Opção”). A quantidade máxima de Ações Ordinárias que poderá ser emitidas sob este Plano será igual ao número total de Ações Ordinárias da Sociedade que estão autorizadas a serem outorgadas sob o Plano de Incentivo Omnibus 2020 da Sociedade.
4.2    Unless otherwise set forth on the applicable Option Grant Agreement executed by the Company and an Investor, the Option Shares shall have a vesting period of five (5) years (the “Vesting Period”) commencing on the date of execution of the respective Option Grant Agreement or in any other day provided therein, as follows: (a) the right to exercise 20% of the Option Shares shall vest after the completion of a period of twelve (12) months of continued Service by the applicable Investor; and (b) the right to exercise Options related to the remaining 80% of the Option Shares shall vest in equal monthly proportional installments over the following forty-eight (48) months of continued Service thereafter. “Service” shall mean the rendering of bona fide services to the Company or to a subsidiary of the Company as an officer, employee, consultant, advisor, third party legal entity rendering services to the Company or to a subsidiary of the Company.		4.2    Salvo se de outra forma estabelecido no Termo de Outorga de Opção aplicável celebrado pela Sociedade e por um Investidor, as Ações da Opção estarão sujeitas ao prazo de investidura de 5 (cinco) anos (o “Prazo de Investidura”), a se iniciar na data de celebração do respectivo Termo de Outorga de Opção ou em qualquer outra data nele referida, como segue: (a) o direito de exercer 20% das Ações da Opção poderá ser exercido após a conclusão de um período de 12 (doze) meses de Serviços continuados pelo Investidor aplicável; e (b) o direito de exercer os 80% remanescentes das Ações da Opção poderá ser exercido em parcelas proporcionais iguais e mensais durante os 48 (quarenta e oito) meses seguintes de prestação de Serviços continuados. “Serviço” significa os serviços de boa-fé para a Sociedade ou para uma subsidiária da Sociedade, na qualidade de diretor, empregado, consultor ou assessor, terceiro entidade jurídica que preste serviços à Sociedade ou a uma subsidiária da Sociedade.
4.2.1    In specific cases, as determined by the CEO, the Option Shares shall have a vesting period of four (4) years (the “Extraordinary Vesting Period”), commencing on the date of execution of the respective Option Grant Agreement or in any other day provided therein, as follows: (a) the right to exercise 25% of the Option Shares shall vest after the completion of a period of twelve (12) months of continued Service by the applicable Investor; and (b) the right to exercise Options related to the remaining 75% of the Option Shares shall vest in equal monthly proportional installments over the following thirty-six (36) months of continued Service thereafter.		4.2.1    Em casos específicos, conforme determinado pelo Diretor Presidente, as Ações da Opção estarão sujeitas ao prazo de investidura de 4 (quatro) anos (o “Prazo Extraordinário de Investidura”), a se iniciar na data de celebração do respectivo Termo de Outorga de Opção ou em qualquer outra data nele referida, como segue: (a) o direito de exercer 25% das Ações da Opção poderá ser exercido após a conclusão de um período de 12 (doze) meses de Serviços continuados pelo Investidor aplicável; e (b) o direito de exercer os 75% remanescentes das Ações da Opção poderá ser exercido em parcelas proporcionais iguais e mensais durante os 36 (trinta e seis) meses seguintes de prestação de Serviços continuados.

 

 

4.3    Notwithstanding the foregoing, the Board (or the CEO, as applicable) may agree with certain Investors, as set forth on the applicable Option Grant Agreement, that if the Company undergoes a Change of Control (as defined below), all of the Ordinary Shares subject to the Option that remain unvested will automatically become vested. For purposes hereof “Change of Control” shall mean (a) any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, other than any such consolidation, merger or reorganization in which the stockholders of the Company immediately prior to such consolidation, merger or reorganization, continue to hold at least a majority of the voting power of the surviving entity in substantially the same proportions (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization; (b) any transaction or series of related transactions to which the Company is a party in which in excess of fifty percent (50%) of the Company’s voting power is transferred; provided that a Change of Control shall not include any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company or any successor or indebtedness of the Company is cancelled or converted or a combination thereof; or (c) a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Company.		4.3    Não obstante o que se segue, o Conselho de Administração (ou o CEO, conforme o caso) podem acordar com determinados Investidores, conforme estabelecido no Termo de Outorga de Opção aplicável, que se a empresa passar por uma Mudança de Controle (conforme definido abaixo), a totalidade das Ações Ordinárias objeto da Opção que restarem não exercidas se tornarão automaticamente exercíveis. Para fins deste contrato “Mudança de Controle” significa (a) qualquer fusão ou incorporação da Sociedade, de ou por qualquer outra companhia ou entidade ou pessoa, ou qualquer outra forma de reorganização societária, que não sejam de consolidação, fusão ou reorganização nas quais os acionistas da Sociedade imediatamente antes de tal incorporação, fusão ou reorganização, continuem a deter pelo menos a maioria do capital votante da entidade sobrevivente, substancialmente nas mesmas proporções (ou, se a entidade sobrevivente for uma subsidiária integral de sua controladora) imediatamente após a incorporação, fusão ou reorganização; (b) qualquer operação ou série de operações relacionadas das qual(is) a Sociedade for parte, em que mais de 50% (cinquenta por cento) do capital votante da Sociedade seja transferido; desde que a Mudança de Controle não inclua qualquer operação ou série de operações, principalmente para fins de financiamento de capital, de boa-fé, em que fundos sejam recebidos pela Sociedade ou qualquer sucessor ou endividamento da Sociedade seja cancelado ou convertido ou uma combinação destes; ou (c) a venda, arrendamento, licença exclusiva ou outra forma de alienação de todos ou substancialmente todos os ativos da Sociedade.

 

 

4.4    Exercise of the Option. Subject to the vesting provisions set forth in Section 4.2 above, in the event that any Investor decides to exercise part or the totality of his/her Option, he/she shall send a notification to the Company (the “Option Exercise Notice” – Annex III) informing his/her intention to exercise such Option and the number of Option Shares he/she wishes to subscribe upon the exercise of such Option. The Options may be exercised within ten (10) years after the date of execution of the respective Offer of Options or after such other date as may be set forth in such Offer of Options (the “Option Exercise Period”), unless earlier terminated pursuant to Section 4.3 or Section 5 of this Plan.   4.5    Option Shares Price. For U.S. taxpayers, the price per share to be paid in cash by the Investors for the subscription for the Option Shares (the “Option Shares Price”) shall be at least the fair market value of a share on the date of grant. For non-U.S. taxpayers, the Option Shares Price of each Option will be determined by the Board of Directors in its reasonable discretion. Such Option Shares Price will be set forth on the applicable Option Grant Agreement executed by the Company and such Investors.   4.6    Subscription of the Option Shares. The Investor who sent the Option Exercise Notice shall, within fifteen (15) business days of delivery thereof, pay the applicable aggregate Option Shares Price to the Company through a wire transfer to a bank account provided by the Company to such Investor within five (5) business days of receipt of the Option Exercise Notice, and such Investor shall execute the share purchase agreement for the subscription for the Option Shares subscribed by such Investor. The Company may, in its discretion, require that Investors exercising their options make payment to a subsidiary of the Company. In such circumstances, the subsidiary will purchase such number of Option Shares as are set out in the Option Exercise Notice from the Company and shall thereupon sell such number of Option Shares to the Investor for the aggregate Option Share Price.		4.4    Exercício da Opção. Sujeito às disposições de investidura estabelecidas na Cláusula 4.2 acima, se um Investidor decidir exercer sua Opção, total ou parcialmente, o Investidor deverá notificar a Sociedade (a “Notificação de Exercício da Opção” – Anexo III), informando sua intenção de exercer a referida Opção e a quantidade de Ações da Opção que o Investidor deseja subscrever com o exercício da referida Opção. As Opções poderão ser exercidas no prazo de 10 (dez) anos contados da data de celebração da respectiva Oferta de Opções ou contados da data que poderá ser prevista na respectiva Oferta de Opções (o “Prazo de Exercício da Opção”), exceto se terminado antecipadamente nos termos da Cláusula 4.3 ou Cláusula 5 deste Plano.   4.5    Preço das Ações da Opção. O preço por ação a ser integralizado em espécie pelos Investidores para a subscrição das Ações da Opção (o “Preço das Ações da Opção”) corresponderá ao preço determinado pelo Conselho de Administração da Sociedade (ou pelo Diretor Presidente, conforme aplicável de acordo com a Cláusula 2.1), e esse Preço das Ações da Opção será estabelecido no Termo de Outorga de Opção aplicável celebrado pela Sociedade e pelos Investidores.   4.6    Subscrição das Ações da Opção. O Investidor que tenha enviado a Notificação de Exercício da Opção, no prazo de 15 (quinze) dias úteis contados do seu envio, deverá pagar o valor total do respectivo Preço das Ações da Opção para a Sociedade, através de transferência eletrônica para a conta corrente indicada pela Sociedade ao referido Investidor no prazo de 5 (cinco) dias úteis contados do recebimento da Notificação de Exercício da Opção e o Investidor deverá assinar o contrato de compra para a subscrição das Ações da Opção subscritas pelo referido Investidor. A Sociedade poderá, a seu critério, requerer que os Investidores que exercerão suas opções façam o pagamento para uma subsidiária da Sociedade. Nessa circunstância, a subsidiária irá adquirir a quantidade de Ações da Opção descritas na Notificação de Exercício da Opção da Sociedade e deverá então vender tal quantidade de Ações da Opção ao Investidor pelo total do Preço das Ações da Opção.

 

 

4.7   Lock-Up. In connection with any underwritten public offering by the Company of its equity securities, including, without limitation, any such offering pursuant to (i) an effective registration statement filed under the United States Securities Act of 1933, as amended (the “Securities Act”) and (ii) an effective registration statement filed or any other measure as provided by Brazilian law or the laws of any jurisdiction under which such offering is carried out, as applicable, and including the Company’s initial public offering, no Investor or transferee thereof shall, directly or indirectly, sell, make any short sale of, loan, hypothecate, pledge, offer, grant or sell any option or other contract for the purchase of, purchase any option or other contract for the sale of, or otherwise dispose of or transfer, or agree to engage in any of the foregoing transactions with respect to, any Option Shares acquired pursuant to the Plan without the prior written consent of the Company’s managing underwriter. Such restriction (the “Market Stand-Off”) shall be in effect for such period of time following the date of the final prospectus for the offering as may be requested by the Company or such underwriter. In no event, however, shall such period exceed 180 days plus such additional period as may reasonably be requested by the Company or such underwriter to accommodate regulatory restrictions on (i) the publication or other distribution of research reports or (ii) analyst recommendations and opinions, including without limitation the restrictions set forth in Rule 2711(f)(4) of the National Association of Securities Dealers and Rule 472(f)(4) of the New York Stock Exchange, as amended, or any similar successor rules. The Market Stand-Off shall in any event terminate two (2) years after the date of the Company’s initial public offering. In the event of the declaration of a share dividend, a spin off, a share split, an adjustment in conversion ratio, a recapitalization or a similar transaction affecting the Company’s outstanding securities without receipt of consideration, any new, substituted or additional securities which are by reason of such transaction distributed with respect to any Option Shares subject to the Market Stand-Off, or into which such Option Shares thereby become convertible, shall immediately be subject to the Market Stand- Off. In order to enforce the Market Stand-Off, the Company may impose stop-transfer instructions with respect to the Option Shares acquired under the Plan until the end of the applicable stand-off period. The Company’s underwriters shall be beneficiaries of the agreeme\nt set forth in this Section 4.6. This Section 4.6 shall not apply to any Option Shares registered in the public offering under the Securities Act.		4.7    Restrições à Negociação das Ações – Lock-Up. No que diz respeito a qualquer oferta pública pela Sociedade de seus títulos e valores mobiliários representativos de capital, incluindo, sem limitação, qualquer oferta de acordo com (i) uma declaração de registro eficaz apresentada nos termos da Lei de Valores Mobiliários dos Estados Unidos de 1933 e alterações posteriores (o “Securities Act”); e (ii) providenciar comprovante de registro devidamente arquivado ou qualquer outra medida prevista pela legislação brasileira ou pelas leis de qualquer jurisdição onde tal oferta ocorrer, conforme o caso, e incluindo a oferta pública inicial da Sociedade, nenhum Investidor nem seus cessionários poderão, direta ou indiretamente, vender, efetuar qualquer posição lançadora, emprestar, empenhar, caucionar, oferecer, conceder ou vender qualquer opção ou outro contrato para a compra, adquirir qualquer opção ou outro contrato para a venda, ou de outra forma alienar ou transferir ou concordar em praticar quaisquer das operações acima mencionadas com relação a quaisquer Ações da Opção adquiridas de acordo com o Plano, sem o consentimento prévio e por escrito do managing underwriter da Sociedade. Essa restrição (a “Restrição de Mercado”) irá vigorar pelo prazo contado da data do prospecto definitivo da oferta que venha a ser solicitado pela Sociedade ou pelo referido underwriter. Entretanto, em nenhuma hipótese esse prazo será superior a 180 dias acrescido de qualquer prazo adicional que possa ser razoavelmente solicitado pela Sociedade ou pelo referido underwriter para a acomodação das restrições regulatórias (i) na publicação ou outra forma de distribuição dos relatórios de pesquisa ou (ii) nas recomendações e pareceres de analistas, incluindo, sem limitação, as restrições previstas na Regra 2711(f)(4) da Associação Nacional de Corretoras (National Association of Securities Dealers) e na Regra 472(f)(4) da Bolsa de Valores de Nova York, e alterações posteriores, ou quaisquer regras similares que as sucedam. Em qualquer hipótese, a Restrição de Mercado irá se encerrar 2 (dois) anos após a data da oferta pública inicial da Sociedade. Na hipótese de declaração de dividendos em ações, cisão, desdobramento de ações, ajuste de cociente de conversão, recapitalização ou de uma operação similar que afete os títulos e valores mobiliários em circulação da Sociedade sem o recebimento de uma contraprestação, quaisquer títulos e valores mobiliários novos, substitutos ou adicionais que, em virtude da referida operação, sejam distribuídos com relação a quaisquer Ações da Opção objeto da Restrição de Mercado ou nos quais essas Ações da Opção se tornem dessa forma conversíveis estarão imediatamente sujeitos à Restrição de Mercado. Para a execução da Restrição de Mercado, a Sociedade poderá impor instruções de vedação de transferência com relação às Ações da Opção adquiridas nos termos do Plano até o término do prazo da restrição aplicável. Os underwriters da Sociedade serão os beneficiários do acordo com o estabelecido nesta Cláusula 4.6. Esta Cláusula 4.6 não será aplicável a nenhuma Ação da Opção registrada na oferta pública nos termos do Securities Act.

 

 

An annotation substantially as follows shall be placed on all certificates (if any) representing all Option Shares of each Investor or, if the Option Shares are not certificated, the following annotation will be inserted on the pages of the register of members of the Company in which the Option Shares are registered:		Uma anotação substancialmente conforme descrita abaixo deverá ser incluída em todos os certificados (se houver) representando todas as Ações da Opção de cada Investidor ou, se as Ações da Opção não tiverem certificados, a anotação descrita abaixo será incluída nas páginas do registro de ações da Sociedade em que as Ações da Opção forem registradas:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK- UP PERIOD OF UP TO 180 DAYS AFTER THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER’S PRINCIPAL OFFICE. SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.		OS TÍTULOS E VALORES MOBILIÁRIOS REPRESENTADOS POR ESTE CERTIFICADO ESTÃO SUJEITOS A RESTRIÇÃO À NEGOCIAÇÃO (LOCK-UP) PELO PERÍODO DE ATÉ 180 DIAS APÓS A DATA EFETIVA DO REGISTRO DA DECLARAÇÃO DO EMISSOR FEITA CONFORME O SECURITIES ACT, CONFORME ESTABELECIDO EM UM CONTRATO ENTRE A SOCIEDADE E O DETENTOR DESSES TÍTULOS E VALORES MOBILIÁRIOS, SENDO QUE UMA CÓPIA DE TAL CONTRATO PODERÁ SER OBTIDA NA SEDE DO EMISSOR. TAL PERÍODO DE RESTRIÇÃO À NEGOCIAÇÃO (LOCK-UP) É VINCULANTE AOS CESSINÁRIOS DE TAIS AÇÕES.

 

 

4.8    Rights as a Shareholder. An Investor shall have no rights as a Shareholder with respect to any Ordinary Shares covered by the Investor’s Option until such person becomes entitled to receive such Ordinary Shares by sending an Option Exercise Notice, by paying the Option Shares Price pursuant to the terms of such Option and by being entered on the register of members of the Company as a shareholder.		4.8    Direitos como um Acionista. Um Investidor não terá direitos como um Acionista em relação às Ações Ordinárias cobertas pela Opção do Investidor até que tal pessoa tenha direito a receber tais Ações Ordinárias mediante o envio da Notificação de Exercício da Opção, mediante o pagamento do Preço das Ações da Opção de acordo com os termos de tal Opção e mediante o registro do seu nome como um acionista no registro de ações da Sociedade.
4.9    Securities Act Requirements. Ordinary Shares shall not be issued under the Plan unless, in the opinion of counsel acceptable to the Board of Directors, the issuance and delivery of such Ordinary Shares comply with (or are exempt from) all applicable requirements of law, and the Company has obtained any approval or favorable ruling from a governmental agency which the Company determines is necessary or advisable.		4.9    Requisitos do Securities Act. As Ações Ordinárias não serão emitidas sob este Plano se, na opinião de um advogado aceitável pelo Conselho de Administração, a emissão e a entrega de tais Ações Ordinárias cumpram com (e são isentas de) todas os requisitos legais, bem como a Sociedade tenha obtido qualquer aprovação ou decisão favorável de um órgão governamental que seja determinado pela Sociedade como necessário ou recomendável.
4.10    Change of Control. In the event of a Change of Control, all Ordinary Shares acquired under the Plan and all Options outstanding on the effective date of the transaction shall be treated in the manner described in the definitive transaction agreement (or, if there is no definitive transaction agreement with the Company, in the manner determined by the Board of Directors). Such determination does not need to treat all Options (or all portions of an Option) in an identical manner. The treatment specified in the transaction agreement may include, without limitation, one or more of the following with respect to each outstanding Option:		4.10    Mudança de Controle. Caso ocorra uma Mudança de Controle, todas as Ações Ordinárias adquiridas sob este Plano e todas as Opções em circulação na data efetiva da operação serão tratadas na forma descrita nos documentos definitivos da operação (ou, caso não haja qualquer documento definitivo da operação com a Sociedade, serão tratadas na forma determinada pelo Conselho de Administração). Tal determinação não precisa tratar todas as Opções (ou todas as partes de uma Opção) de forma idêntica. O tratamento especificado no documento da operação poderá incluir, sem limitação, um ou mais do quanto segue em relação a cada Opção em circulação:
(i)    Continuation of the Option by the Company (if the Company is the surviving company)		(i)    Continuação da Opção pela Sociedade (se a Sociedade for a entidade sobrevivente);
(ii)    Assumption of the Option by the surviving company or its parent;		(ii)    Assunção da Opção pela entidade sobrevivente ou sua controladora;
(iii)    Substitution by the surviving company or its parent of a new option;		(iii)    Substituição, pela entidade sobrevivente ou sua controladora, por uma nova opção;
(iv)      Cancellation of the Option and a payment to the Investor of the intrinsic value, if any, of the vested portion of the Option, as determined by the Board of Directors, in cash, cash equivalents or equity, subject to any escrow, holdback, earn-out or similar provisions in the transaction agreement;		(iv)    Cancelamento da Opção e pagamento ao Investidor do valor intrínseco, se houver, da parte exercível da Opção, conforme determinado pelo Conselho de Administração, em dinheiro, outras disponibilidades ou títulos e valores mobiliários representativos de capital, sujeitos a qualquer depósito em garantia, retenção, earn-out ou disposições similares no contrato da operação;

 

 

(v)      Suspension of the Investor’s right to exercise the Option during a limited period of time preceding the closing of the transaction if such suspension is administratively necessary to permit the closing of the transaction.		(v)      Suspensão dos direitos do Investidor de exercício da Opção durante um período limitado antes do fechamento da operação caso tal suspensão seja administrativamente necessária para permitir o fechamento da operação.
For the avoidance of doubt, the Board of Directors has discretion to accelerate, in whole or part, the vesting and exercisability of an Option in connection with a corporate transaction covered by this Section 4.10, regardless of whether or not such acceleration is contemplated in the Option Grant Agreement corresponding to such Option.		Para fins de clareza, o Conselho de Administração tem discricionariedade para antecipar, no todo ou em parte, a investidura e o exercício de um Opção em conexão com a operação societária prevista nesta Cláusula 4.10, independentemente se tal antecipação estiver contemplada no Termo de Outorga de Opção relativo a tal Opção.
5.       Termination of the Options.		5.       Rescisão das Opções.
5.1      Termination of the Options. Any of the Options shall be automatically terminated within the time period set forth below, without further action on the part of the Company or the applicable Investor and regardless of any formality:		5.1      Rescisão das Opções. Quaisquer Opções serão automaticamente rescindidas no prazo estabelecido abaixo, sem nenhum ato adicional por parte da Sociedade ou do Investidor aplicável e independentemente de qualquer formalidade:
(a)      immediately if, before the end of the Option Exercise Period, the Investor notifies the Company in writing of his/her intention not to exercise his/her Option; or		(a)      imediatamente, se, antes do vencimento do Prazo do Exercício da Opção, o Investidor notificar a Sociedade, por escrito, de sua intenção de não exercer sua Opção; ou
(b)      immediately if the Investor does not exercise his/her Option prior to the end of the Option Exercise Period, under the terms and conditions established herein; or		(b)      imediatamente, se o Investidor não exercer sua Opção antes do vencimento do Prazo do Exercício da Opção, observados os termos e as condições estabelecidos neste Plano; ou
(c)      if the Investor ceases to provide Service for any reason, then the date one month after the Investor ceases to provide Service (provided that, for the purposes hereof, Service shall be deemed to continue while the Investor is on a bona fide leave of absence, if such leave was approved by the Company in writing and if continued crediting of Service for this purpose is expressly required by the terms of such leave or by applicable law, as determined by the Company); or		(c)      se o Investidor deixar de prestar Serviços por qualquer motivo, então um mês após a cessação dos Serviços pelo Investidor (observado que, para estes efeitos, Serviço será considerado como em continuação enquanto o Investidor estiver em uma licença de boa fé, se tal licença tiver sido aprovada pela Sociedade por escrito e se remuneração contínua de Serviço para este fim for expressamente exigida pelos termos de tal licença ou pela legislação aplicável, conforme determinado pela Sociedade); ou
(d)    if the Investor dies or is declared incapable, unless the Investor’s estate executors decide to exercise the Option (i) within six (6) months as of the date when the Investor deceases, or (ii) within twelve (12) months as of the date when the Investor is declared Incapable.		(d)      se o Investidor falecer ou for declarado incapaz, salvo se o representante do espólio do Investidor ou curador do Investidor decidir exercer a Opção, (i) no prazo de 6 (seis) meses contados da data do falecimento do Investidor ou (ii) no prazo de 12 (doze) meses contados da data de declaração de incapacidade do Investidor.

 

 

5.2    The termination of any of the Investors’ Options shall not affect the Options granted to the other Investors. In this event, the Options granted to the other Investors shall remain in full force and effect.		5.2    A rescisão de qualquer Opção dos Investidores não afetará as Opções concedidas a outros Investidores. Nessa hipótese, as Opções concedidas a outros Investidores permanecerão em pleno vigor e efeito.
6.      Tax Matters.   The Investors hereby acknowledge and agree that they are solely responsible for any and all tax obligations arising from the subscription for the Option Shares, or from the receipt of any payment upon the sale of shares pursuant to Section 6, such as any municipal, state or federal income, employment and capital gains taxes and withholding obligations. In the event that any Investor or the Company determines that it is required to withhold any tax as a result of the Investors’ subscription for shares or payment of shares pursuant to Section 6, the Investors hereby agree to any withholding arrangements satisfactory to the Company to enable it to satisfy all withholding requirements.		6.      Questões Fiscais.   Pelo presente instrumento, os Investidores reconhecem e concordam que são exclusivamente responsáveis por todas e quaisquer obrigações fiscais decorrentes da subscrição das Ações da Opção ou do recebimento de qualquer pagamento em razão da venda das ações de acordo com a Cláusula 6, como, por exemplo, imposto de renda, tributos trabalhistas e sobre ganhos de capital e obrigações de recolhimento, da esfera municipal, estadual ou federal. Se um Investidor ou a Sociedade determinar que estão sujeitos a qualquer obrigação de recolhimento de tributos em decorrência da subscrição das ações ou integralização das ações pelo Investidor de acordo com a Cláusula 6, os Investidores neste ato concordam com quaisquer providências de recolhimento satisfatórias à Sociedade para permitir o cumprimento pela Sociedade de todas as suas obrigações de recolhimento de tributos.
7.       Term.   The Plan shall be in force for the period of twenty (20) years as of the date of its approval.		7.      Prazo de Vigência.   O Plano permanecerá em vigor pelo prazo de 20 (vinte) anos contados da data de sua aprovação.

 

 

8.    General Provisions.		8.      Disposições Gerais.
8.1    Filing. This Plan shall be kept with the corporate records of the Company at the registered office of the Company.		8.1    Averbação. O presente Plano será mantido junto aos registros societários da Sociedade em sua sede.
8.2    Non Commitment. This Plan constitutes a remunerated business transaction with an exclusively civil nature and does not entail any labor or social security obligation between the Company and the Investors, be them officers, employees or service providers. Nothing in the Plan or in any right or Option granted under the Plan shall confer upon the Investor any right to continue in Service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company (or any parent or subsidiary employing or retaining the Investor) or of the Investor, which rights are hereby expressly reserved by each, to terminate his or her Service at any time and for any reason, with or without cause.		8.2    Inexistência de Compromisso. Este Plano constitui uma operação comercial a título oneroso, exclusivamente de natureza civil, não acarretando nenhuma obrigação trabalhista ou previdenciária entre a Sociedade e os Investidores, sejam eles diretores, empregados ou prestadores de serviços. Nada no Plano ou em qualquer direito ou Opção outorgada nos termos do Plano conferirá ao Investidor o direito de continuar a prestar Serviço por um período de duração específica ou interferirá ou de outra forma restringirá, de qualquer maneira, os direitos da Sociedade (ou qualquer controladora ou subsidiária que contratar o Investidor) ou do Investidor, cujos direitos são expressamente reservados por cada um, para terminar o seu Serviço a qualquer momento e por qualquer motivo, com ou sem justa causa.
8.3    Notices. All notices and other communications given or made pursuant hereto shall be in writing or by electronic mail and shall be deemed effectively given: (i) upon sending if sent by electronic mail, (ii) upon personal delivery to the party to be notified, or (iii) on the delivery date acknowledged by the post office or courier, if sent by registered or certified mail, return receipt requested, postage prepaid. The occurrence of the events set forth in subsections (i), (ii) and (iii) above shall constitute “delivery” of notice. All communications shall be sent to the respective parties at the addresses set forth in the respective Option Grant Agreement executed by the Company and an Investor.		8.3    Notificações. Todas as notificações e demais comunicações enviadas ou efetuadas de acordo com este Plano deverão ser realizadas por escrito ou por correio eletrônico, e serão consideradas como tendo sido efetivamente entregues: (i) no momento do envio se enviadas por correio eletrônico; (ii) quando entregues pessoalmente à parte a ser notificada, ou (iii) na data de entrega confirmada pelo escritório postal ou serviço de entrega expressa (courier), se enviadas por correio registrado ou certificado, com aviso de recebimento e tarifa paga. A ocorrência dos eventos estabelecidos nos itens (i), (ii) e (iii) acima constituirá “entrega” da notificação. Todas as comunicações deverão ser encaminhadas às respectivas partes nos endereços previstos no respectivo Termo de Outorga de Opção celebrado pela Sociedade e por um Investidor.
8.4    Assignment. This Plan and the rights and obligations hereunder may not be assigned or transferred, in whole or in part, at any time, by the Investors, except upon prior written approval of the Company. No Option granted under the Plan or the rights and privileges conferred thereby may be sold, pledged or otherwise transferred (whether by operation of law or otherwise) and shall not be subject to sale under execution, attachment, levy or similar process.		8.4    Cessão. Este Plano e os direitos e obrigações aqui previstos não poderão ser cedidos ou transferidos, total ou parcialmente, em nenhum momento, pelos Investidores, exceto com a aprovação prévia e por escrito da Sociedade. Nenhuma Opção concedida nos termos do Plano nem os direitos e prerrogativas por ela conferidos poderão ser vendidos, empenhados ou de outra forma transferidos (em virtude de lei ou de outra forma), não estando sujeitos a venda em razão de processo de execução, penhora, cobrança ou processo similar.

 

 

8.5    Waiver. Neither the failure of any party to exercise any right provided under this Plan nor to insist upon compliance by any other parties with its obligations hereunder, shall constitute a novation of its terms or as a waiver by such party of its right to exercise any such right, or to demand such compliance.		8.5    Renúncia. A falha por uma das partes em exercer qualquer direito previsto nos termos deste Plano ou em insistir no cumprimento pela outra parte de suas obrigações aqui previstas não constituirá novação dos seus termos nem renúncia pela parte em questão ao seu direito de exercer esse direito ou de demandar o seu cumprimento.
8.6     Successors. This Plan and all of the provisions hereof, shall be binding upon and inure to the benefit of the parties and their respective heirs and successors for all legal purposes.		8.6    Sucessores. Este Plano e todas as suas disposições vincularão e reverterão em benefício das partes e de seus respectivos herdeiros e sucessores para todos os fins legais.
8.7    Omissions. The Board of Directors shall have the power to decide in case of any omission relating to this Plan and shall be entitled to waive any provision of this Plan.		8.7    Omissões. O Conselho de Administração terá autoridade para resolver qualquer omissão pertinente a este Plano e terá o direito de renunciar a qualquer previsão deste Plano.
8.8    Amendments. Any amendment to this Plan is subject to the approval of the Company’s Board which may amend the Plan at any time and for any reason.		8.8    Alterações. Qualquer alteração a este Plano está sujeita à aprovação do Conselho de Administração da Sociedade, que poderão alterar o Plano a qualquer momento e por qualquer motivo.
8.9    Governing Language. This Plan is written in English and in Portuguese. In the event of any inconsistency, the English language version shall govern.		8.9    Idioma Aplicável. Este Plano é redigido em inglês e português. Em caso de qualquer inconsistência, e versão em inglês prevalecerá.
8.10     Governing Law. This Plan shall be governed by and construed in accordance with the laws of the Cayman Islands.		8.10    Lei Aplicável. Este Plano será regido e interpretado de acordo com as leis das Ilhas Cayman.
8.11    Jurisdiction. The parties elect the courts of the Cayman Islands, to resolve any controversy, dispute or claim arising hereunder or otherwise relating to this Plan, with the express waiver of any other court.		8.11    Foro. As partes elegem o foro das Ilhas Cayman para dirimir qualquer controvérsia, litígio ou reivindicação decorrente ou de outra forma pertinente ao presente Plano, com a expressa renúncia a qualquer outro foro.

***

 

 

ANNEX I		ANEXO I
OFFER OF OPTIONS		OFERTA DE OPÇÕES
Dear [insert name of beneficiary]		Prezado [inserir nome do Beneficiário]
Nu Holdings Ltd. is pleased to invite you to participate in its Share Option Plan subject to the terms set forth in the attached documents.   Subject to the terms and conditions of the Share Option Plan, the number of Class A Ordinary Shares issuable by the Company in the amount, terms, timing and pricing options at which you are entitled are described below:		Nu Holdings Ltd. tem a satisfação de onvidá-lo a participar de seu Plano de Opção e Ações sujeito aos termos dispostos nos documentos anexos.   Sujeito aos termos e às condições do Plano de Opção de Ações, o número de Ações Ordinárias Classe A de emissão da Sociedade na quantidade, termos, prazos e preços que V.Sa. terá direito estão descritos abaixo:
Date of Award: [—]		Data de Outorga: [—]
Vesting Start Date: [—]		Data de Início da Investidura: [—]
Number of Class A Ordinary Shares: [—]		Número de Ações Ordinárias Classe A: [—]
Vesting Schedule: [—] years and [—] year cliff		Prazo de Maturação: [—] anos e [—] ano cliff
Exercise Price: R$ [—]		Preço de Exercício: R$ [—]
Option Exercise Period expires ten (10) years		Prazo de Exercício da Opção expira 10 (dez)
after: [—]		anos a contar de: [—]
We ask for your attention to read carefully the Share Option Plan, as well as all accompanying documentation.		Pedimos a sua atenção para ler atentamente o Plano de Opção de Ações, bem como toda a documentação anexa.
By signing the attached Option Grant Agreement, you will be contractually bound by the terms and conditions of the Share Option Pan.		Ao assinar o Termo de Outorga de Opção anexo, você estará contratualmente vinculado aos termos e às condições do Plano de Opção de Ações.
The terms and expressions used herein capitalized but not defined herein shall have the meaning assigned to them in the Share Option Plan.		Os termos e expressões ora utilizados em letra maiúscula, mas aqui não definidos, terão o significado a eles atribuídos no Plano de Opção de Ações.
Best regards,		Atenciosamente,

Date / Data:                                                

 

Nu Holdings Ltd.

ANNEX II		ANEXO II
OPTION GRANT AGREEMENT		TERMO DE OUTORGA DE OPÇÃO
[Name of Beneficiary], [citizenship], [marital status], bearer of identity card No. [—], enrolled with the CPF under No. [—], e-mail [—], agrees to have read and fully understood the Share Option Plan of Nu Holdings Ltd. (“Share Option Plan”).		[Nome do Beneficiário], [nacionalidade], [estado civil], portador do documento de identidade nº [—], inscrito no CPF sob o nº [—], e-mail [—], declara ter lido e entendido integralmente o Plano de Opção de Ações da Nu Holdings Ltd. (“Plano de Opção de Ações”).
Hereby declares that have also received a copy of the following documents:		Declara também ter recebido cópia dos seguintes documentos:
(a)    Offer of Options (“Offer”);		(a)    Oferta de Opções (“Oferta”);
(b)    Notice of Exercise of Options (“Notice”), and		(b)    Notificação de Exercício de Opções (“Notificação”); e
(c)    Share Option Plan.		(c)    Plano de Opção de Ações.
Having examined the documents, the signatory irrevocably states that he/she:		Tendo examinado os referidos documentos, o signatário declara, de forma irrevogável e irretratável:
1.    Is aware and agrees with the terms and conditions and all documents above, especially the Share Option Plan. This agreement thus binds his/her heirs and successors, in any capacity whatsoever;		1.    Estar ciente e de acordo com os termos e as condições e todos os documentos acima, especialmente o Plano de Opção de Ações, concordância essa que obriga aos seus herdeiros e sucessores, seja a que título for;
2.    Adheres through this act to the Share Option Plan and the other referred documents;		2.    Aderir neste ato ao Plano de Opção de Ações e aos demais documentos;
3.    Is aware that this does not mean adherence to subscription for shares subject to the option itself, which will be effective only under the Share Option Plan and subject to the conditions precedent set forth in the Share Option Plan; and		3.    Estar ciente de que a presente adesão não significa a subscrição de ações objeto da opção propriamente dita, a qual, só será efetiva nos termos do Plano de Opção de Ações e sujeito às condições precedentes estabelecidas no Plano de Opção de Ações; e
4.    Is aware of the confidentiality of all documents, being hereby bound to the confidentiality of its contents (refraining to reproduce or copy all or part of the documents relating to the Share Option Plan) and the number of shares the option that it was intended, under penalty of cancellation /revocation of the options, except for information that the beneficiary must disclose under applicable law.		4.    Estar ciente do caráter confidencial de todos os documentos, e obrigar-se neste ato a manter confidencialidade sobre o seu conteúdo (abstendo-se de reproduzir ou copiar total ou parcialmente os documentos relativos ao Plano de Opções de Ações) e a quantidade de ações objeto da opção de cancelamento/revogação das opções, exceto pelas informações que o beneficiário deve divulgar nos termos da legislação aplicável.

 

 

		Date / Data:
		Name /Nome:
		Signature /Assinatura:

 

 

ANNEX III NOTICE OF EXERCISE OF OPTIONS		ANEXO III NOTIFICAÇÃO DE EXERCÍCIO DE OPÇÕES
The signatory of this Notice of Exercise of Options, as Beneficiary of the Share Option Plan of Nu Holdings Ltd. (the “Company”), hereby exercises respective options to subscribe of shares under the Share Option Plan and Option Grant Agreement, signed between the undersigned and Nu Holdings Ltd. on [date], quantity and price set forth below:		O signatário da presente Notificação de Exercício de Opções, na qualidade de Beneficiários Plano de Opção de Ações da Nu Holdings Ltd. (“Sociedade”), vem, neste ato, exercer suas opções de subscrição de ações, nos termos do Plano de Opção e Termo de Outorga de Opção, firmado entre o signatário e a Nu Holdings Ltd. em [data], na quantidade e preço abaixo estabelecidos:
Number of Class A Ordinary Shares: [—] Exercise Price per Share: R$ [—] Total Exercise Price: R$ [—]		Número de Ações Ordinárias Classe A: [—] Preço de Exercício por Ação: R$ [—] Preço de Exercício Total: R$ [—]
The undersigned undertakes to make within fifteen (15) business days after the date hereof the payment of the full exercise price above reported in respect of the Class A Ordinary Shares purchased hereunder (the “Purchased Shares”) and is fully aware and agrees that in case of non performance of such obligation within the term set forth herein then this notice of exercise of Options loses its effect for all purposes.		O signatário se compromete a efetuar, em 15 (quinze) dias úteis a contar desta data, o pagamento de exercício total no valor acima informado com relação à Ações Ordinárias Classe A adquiridas nos termos desta notificação (“Ações Adquiridas”), e tem pleno conhecimento e concorda que em não o fazendo neste prazo a presente notificação de exercício de Opções perde seu efeito para todos os fins.
The undersigned further declares that he/she/it agrees to sign the instrument of share transfers, compensation payments and/or other documents that may be necessary to effect the purchase of the shares.		O signatário declara, ainda, que se compromete a assinar os termos de transferências de ações, autorizações de compensação de pagamento e/ou outros documentos que se fizerem necessários à efetivação da compra das ações.
The undersigned further acknowledges that the shares to be purchased will be subject to the terms and conditions of the Share Option Plan of Nu Holdings Ltd. (the “Plan”).		Ademais, o signatário reconhece que as ações a serem adquiridas estarão sujeitas aos termos e às condições constantes do Plano de Opção de Ações da Nu Holdings Ltd. (o “Plano”).
The undersigned hereby represents and warrants:		O signatário, neste ato, declara e garante:
1.    I am acquiring and will hold the Purchased Shares for investment purposes and for an indefinite period, and not to sell or distribute them.		1.    Estou adquirindo e irei deter as Ações Compradas para fins de investimento e por um período indeterminado, e não para alienar ou distribuir tais Ações Compradas.

 

 

2.    I understand that the Purchased Shares have not been registered under any securities laws of any jurisdiction, and that the transfer of the Purchased Shares must be registered under applicable securities laws, or I must obtain an opinion of counsel (satisfactory to the Company) that registration is not required. I acknowledge that the conditions for resale under any applicable securities laws have not been satisfied, that the Company is not required to satisfy such conditions, and that the Company does not have to register the Purchased Shares or any sale or transfer thereof.		2.    Eu entendo que as Ações Adquiridas não foram registradas sob quaisquer leis de títulos e valores mobiliários de qualquer jurisdição, e que a transferência das Ações Adquiridas deve ser registrada sob as leis aplicáveis de títulos e valores mobiliários, ou eu devo obter um parecer de um advogado (satisfatório para a Sociedade) de que o registo não é obrigatório. Eu reconheço que as condições para revenda sob quaisquer leis aplicáveis de títulos e valores mobiliários não foram satisfeitas, que a Sociedade não é obrigada a satisfazer tais condições, e que a Sociedade não tem que registrar as Ações Compradas ou qualquer venda ou transferência das Ações Compradas.
3.    I have received all information necessary or appropriate for deciding whether to invest in the Purchased Shares. I had an opportunity to have all questions answered by the Company. I am able, without impairing my financial condition, to hold the Purchased Shares for an indefinite period and to suffer a complete loss of my investment. I have such knowledge and experience as to be capable of evaluating the merits and risks of my investment.		3.    Eu recebi todas as informações necessárias ou apropriadas para decidir se investir nas Ações Adquiridas. Eu tive a oportunidade de ter todas as perguntas respondidas pelas Sociedade. Eu sou capaz, sem prejudicar a minha condição financeira, de deter Ações Adquiridas por um período indeterminado e de sofrer uma perda total do meu investimento. Eu tenho conhecimento e experiência para ser capaz de avaliar os méritos e riscos do meu investimento.
4.    I acknowledge that the Purchased Shares remain subject to the Company’s right of first refusal and the “lock-up” provision in the Plan.		4.    Eu reconheço que as Ações Adquiridas permanecem sujeitas ao direito de preferência da Sociedade e ao “lock-up’ (período de restrição à negociação) previsto no Plano.
5.    I agree that the Company does not have a duty to structure or administer the Plan in a manner that minimizes my tax liabilities. I will not make any claim against the Company or any of its affiliates related to such tax liabilities.		5.    Eu concordo que a Sociedade não tem a obrigação de estruturar ou administrar o Plano de uma maneira que minimize as minhas obrigações tributárias. Eu não vou fazer qualquer reclamação contra a Sociedade ou qualquer de suas coligadas relacionada a tais obrigações tributárias.
[In particular, I acknowledge that my options are exempt from Section 409A of the Internal Revenue Code only if the exercise price per share is at least equal to the fair market value per share of the Company’s Class A Ordinary Shares at the time the option was granted by the Company. There is no guarantee that the Internal Revenue Service will agree with any valuation that may have been made by the Company or its Board of Directors or any affiliate, or by an independent valuation firm.]		[Em específico, eu reconheço que as minhas opções estão isentas da Seção 409A do Código da Receita Federal dos EUA somente se o preço de exercício por ação for pelo menos igual ao valor justo de mercado por ação das Ações Ordinárias Classe A da Sociedade no momento em que a opção foi outorgada pela Sociedade. Não há nenhuma garantia de que a Receita Federal dos EUA irá concordar com qualquer avaliação que tenha sido feita pela Sociedade ou pelo Conselho de Administração ou qualquer coligada, ou por uma empresa de avaliação independente.]

 

 

[above-bracketed language only for U.S. taxpayer optionees]		[texto acima entre colchetes aplicável somente para contribuintes dos Estados Unidos da América]
6.    I agree to seek the consent of my spouse to the extent required by the Company to enforce the foregoing.		6.    Eu concordo em procurar o consentimento do meu cônjuge na medida requerida pela Sociedade para fazer cumprir com o aqui previsto.
Date:		Data:

 

[name of signatory]

[nome do signatário]

 

Exhibit 10.4

 

Peter Lampasona Vice President Franchise Development   MasterCard Worldwide Law & Franchise Integrity 2000 Purchase Street Purchase, NY 10577-2509   1-914-249-6288 [email protected] www.mastercard.com   January 29, 2014

Mr. David Velez Osorno

CEO

EO2 SOLUCOES DE PAGAMENTO SA

R California 492

Sao Paulo SP

Brasil, Postal Code 04566060

Dear Mr. Velez:

It is a pleasure to inform you that EO2 SOLUCOES DE PAGAMENTO SA.’s application for MasterCard Principal Participation and License for MasterCard has been approved, effective January 29, 2014. This approval is subject to the provisions of the brand’s governing rules, and revocable for any violation of the MasterCard License Agreement.

Enclosed is a fully executed MasterCard License Agreement and Summary of Licenses Granted which reflects the brands for which a license has been granted and the type of participation for each. Specifically the License is limited to Issuing Credit Cards only. Additionally the license does not permit the Sponsorship of Affiliates and does not allow Extensions of Area of Use out of Brasil.

The following ICA and BINs have been reserved for EO2 SOLUCOES DE PAGAMENTO SA. for testing purposes only:

 

ICA:		16570
BIN:		516220 (MCG – Gold MasterCard)
BIN: BIN:		516230 (MPL – Platinum MasterCard) 537678 (MBK – MasterCard Black)

You must contact Customer Implementation Services (CIS) to coordinate the implementation and activation of this ICA in the MasterCard production environment. CIS can proceed with the formal implementation process, pending receipt of all other required and/or optional forms. To determine which additional forms are required, and for further assistance, you may contact CIS via email:

[email protected]

 

Mr. David Velez Osorno

CEO

January 29, 2014

Page 2 of 2

EO2 SOLUCOES DE PAGAMENTO SA. Will be fully responsible for all transactions and billing affected under these assignments and obligated to activate their ICA/BINs within a year of assignment. A billing account must first be established and appropriately funded in order to initiate the activation process.

To establish a billing account, the Billing Services Notification and Summary Reports Request forms must be completed. If you have already submitted these forms, then no further action is required. If you have not completed the forms, the forms have been attached to this letter. Please complete and submit the forms to CIS within 30 days. Billing and settlement will begin as soon as the ICA has been assigned in the MasterCard systems.

To assist in your understanding of MasterCard rules, policies, products and services, please visit our website at www.mastercardconnect.com.

We look forward to working with you and wish you success with all of your MasterCard programs.

Sincerely,

/s/ Peter Lampasona                                  

Peter Lampasona

 

cc:	Vivian Baker – MasterCard (Miami)

Luisa Nunes – MasterCard (Brasil)

 

SUMMARY OF LICENSES GRANTED

 

LICENSEE:		EO2 SOLUCOES DE PAGAMENTO SA
ADDRESS:		R CALIFORNIA 492
		SAO PAULO SP BRAZIL

 

Authorized Marks		Type of License Participation		Type of activity		Geographic locations		Date after which Licensee is authorized to use this Authorized Mark
MasterCard Mark:		•  Principal		•  Issuing Credit Products Only, Activities within Brazil Only, and Not Sponsoring of Affiliates		Brazil		January 29, 2014
Cirrus Mark:		•  Principal		•  Issuing Only		Brazil		January 29, 2014

Upon being granted a license to use any one of the MasterCard, Maestro or Cirrus Marks, Applicant shall also be granted a limited license to acquire MasterCard, Maestro and Cirrus transactions at ATMs operated or sponsored by Applicant in accordance with the applicable Rules and to display the MasterCard, Maestro and Cirrus Marks at such ATMs.

DATE: January 29, 2014

 

 

LICENSE AGREEMENT

THIS LICENSE AGREEMENT is between MasterCard International Incorporated or its undersigned affiliate (“MasterCard”) and the undersigned entity (“Applicant”).

Marks. Applicant acknowledges that MasterCard owns, manages, is licensee of, or otherwise controls all rights, title and interest to the trade names, trademarks, service marks and logotypes (the “Designations”) set forth below. This License Agreement governs the use of the Designations identified below (each a “Mark”) and other trade names, trademarks, service marks and logotypes identified from time to time in the Standards (defined below) or policies of MasterCard (each, an “Other Identified Mark” and, together with each Mark, the “Marks”). “MasterCard” shall mean and include its parent, subsidiaries and affiliates. Capitalized terms used in this license agreement shall have the meanings ascribed to them in the Standards, unless defined herein.

 

•

Interlocking Circles Device. MasterCard owns all rights, title and interest to the trademark, service mark and logotype known as the Interlocking Circles Device and all variations thereof, and United States and worldwide registrations for such mark (the “Interlocking Circles Device”).

 

•

MasterCard Marks. MasterCard owns all right, title and interest in and to the trademark, trade name and service mark “MasterCard” and marks utilizing that designation, including MasterCard Electronic and MasterCard Cash, and United States and worldwide registrations for such marks (the “MasterCard Marks”).

 

•

Cirrus Marks. MasterCard owns all right, title and interest in and to the trademark, trade name and service mark “Cirrus” and marks utilizing that designation and United States and worldwide registrations for such marks (the “Cirrus Marks”), to use and sublicense the use of the Cirrus Marks.

 

•

Maestro Marks. MasterCard owns all right, title and interest in and to the trademark, trade name and service mark “Maestro” and marks utilizing that designation and United States and worldwide registrations for such marks (the “Maestro Marks”), to use and to sublicense the use of the Maestro Marks.

Ownership of the Marks. Applicant acknowledges that:

(a) MasterCard is the Exclusive Owner (defined below) of all MasterCard Marks, the Cirrus Marks the Maestro Marks and the Interlocking Circles Device; and

(b) the applicable Exclusive Owner is the owner of any Other Identified Mark.

Applicant acknowledges the validity of the Marks and agrees to never contest such ownership, or in any way dispute the validity of any of the Marks or registrations for the Marks. Applicant agrees that, if any right has accrued or may accrue to Licensee in any of the Marks by operation of law, such right, upon termination of this License Agreement, shall revert to the owner of such Mark(s) as indicated in subsections (a), or (b), above (each such owner, as applicable, an “Exclusive Owner”). Applicant further agrees to cooperate with the Exclusive Owner to perfect such Exclusive Owner’s title in any Mark(s) by written assignment of any rights which may accrue and in any other manner deemed necessary or appropriate by said Exclusive Owner. Applicant agrees that all documents, instruments, papers, letters, advertisements, and cards bearing any of the Marks shall be marked by Applicant with any notices of such Exclusive Owner’s registrations that may be provided by law to preserve the Exclusive Owner’s rights in the Mark(s) or that may be required by MasterCard from time to time. Applicant agrees not to obtain or attempt to obtain, and agrees not to aid any third party in obtaining or attempting to obtain, any right in any trademark, trade name, service mark, logotype or other device, designation, internet domain name, or intellectual property right that is confusingly similar to or employs any part of any Mark including, without limitation, the word “Master” or “Maestro” or any word containing the word “Master” or “Maestro” as a prefix or suffix, or “Master” or “Maestro” used in connection with any service offered by Applicant; and, upon request by MasterCard, Applicant agrees to assign, by instruments satisfactory in form and substance to MasterCard’s counsel and without royalty or other payment of any kind, any and all of such rights that Licensee may obtain or may have obtained. Applicant agrees to never take any action, or permit or fail to take any action, that may injure, harm or dilute the distinctiveness or goodwill in and to any of the Marks. Applicant further acknowledges that any use of any Mark inures to the benefit of the Exclusive Owner of that Mark.

 

MasterCard License Agreement		Page 1 of 3		Revised: July 2013 ©2013 MasterCard

 

Grant of License. Applicant accepts (as granted), a non-exclusive license to use the Marks identified in the Summary of Licenses Granted (attached to this License Agreement and incorporated herein) in the geographic areas set forth therein, solely in connection with the Program(s). The term “Program” is defined in the Standards applicable to each Mark referenced in the Summary of Licenses Granted that Applicant operates in a geographic area. Upon execution by MasterCard, this License Agreement is effective as of the Effective Date set forth below and shall remain in effect until terminated in accordance with the Standards. MasterCard may, from time to time, modify the Summary of Licenses Granted to add a Mark, delete a Mark, change the type(s) of license participation, or change the type(s) of activity, and geographic locations that apply to Applicant for one or more Marks. Upon being granted a license to use any one of the MasterCard, Maestro or Cirrus Marks, Applicant shall also be granted a limited license to acquire MasterCard, Maestro and Cirrus transactions at ATMs operated or sponsored by Applicant in accordance with the applicable Standards and to display the MasterCard, Maestro and Cirrus Marks at such ATMs.

Standards. At all times, Applicant shall observe the Amended and Restated Certificate of Incorporation, Bylaws, Rules, and policies, and the operating regulations and procedures of MasterCard, including but not limited to any manuals, guides or bulletins, as may be amended from time to time (the “Standards”). The Standards are incorporated herein by reference and made a part of this License Agreement. MasterCard shall have the right to inspect samples of all advertising and marketing materials bearing the Marks to insure compliance with the Standards, and Applicant shall promptly correct any deficiency.

Term. Subject to the termination provisions set forth in this License Agreement and in the Standards, this License Agreement shall have an initial term of ten (10) years, commencing upon the Effective Date set forth below, and shall be automatically renewed for successive ten (10)-year renewal terms unless (i) at least thirty (30) calendar days prior to the end of the initial term or any renewal term, MasterCard notifies Applicant in writing that this License Agreement will not be renewed or (ii) this License Agreement has otherwise been terminated pursuant to its provisions or the Standards. Subject to such other License and/or Membership termination provisions set forth in this License Agreement or in the Standards that provide for termination either without notice or upon shorter notice, MasterCard shall have the right, upon no fewer than thirty (30) calendar days advance written notice to Applicant, to terminate this License Agreement at any time without cause. Applicant shall cease using the Marks upon termination of the License Agreement.

Representations and Warranties. Applicant hereby represents and warrants that the information provided in Applicant’s application for this license is true and complete. Should circumstances change that would affect Applicant’s continued eligibility to be a licensee, as specified in the Standards, Applicant agrees to immediately notify MasterCard in writing. Applicant shall immediately notify MasterCard in writing of any changes in the completeness or accuracy of such information or of a change in circumstances that would or could affect Applicant’s continued eligibility to be a licensee in accordance with the eligibility criteria set forth in the Standards. Applicant further represents and warrants that the execution and delivery of this License Agreement and the performance by Applicant of the activities licensed hereunder will not violate any law, statute, ordinance, regulation, judgment, writ, injunction, rule, decree, order, or any other restriction or requirement applicable to Applicant. Licensee further represents and warrants that it has, and shall maintain, any and all government licenses and permits that are necessary for Applicant to be authorized to engage in the activities to be performed pursuant to this License Agreement.

Compliance with Law. For so long as this license is in effect, MasterCard and Applicant shall comply with all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements relating in any way to the privacy, confidentiality or security of personal data, including, without limitation: the EU Data Directive 95/46/EC; and the requirements of the Gramm-Leach-Bliley Act and its implementing regulations (15 U.S.C. § 6801 et seq.) (collectively, the “GLB Act”), which shall include, without limitation, the maintenance of a comprehensive information security program, that is designed to insure the security and confidentiality of non-public information about cardholders, applicants, or other customers by, among other things: (i) protecting against any anticipated threats or hazards to the security or integrity of such information; (ii) protecting against unauthorized access to or use of such information; (iii) detecting, preventing and responding to, in a prompt manner, attacks, intrusions or other system failures; (iv) ensure the proper disposal of such information; and (v) regularly testing or otherwise monitoring the effectiveness of such information safeguards.

 

 

MasterCard License Agreement		Page 2 of 3		Revised: July 2013 ©2013 MasterCard

 

Notice of infringement. As soon as Applicant acquires any knowledge of (i) any infringement of any Mark, (ii) any conflicting claim of third parties with respect to a Mark, or (iii) any failure of any other licensee to adhere to the Standards, Applicant shall so notify MasterCard in writing. Applicant agrees to give all lawful and reasonable aid requested by MasterCard or any other Exclusive Owner in connection with efforts to enforce, preserve and defend a Mark. All litigation carried on by Applicant at MasterCard’s request shall be subject to MasterCard’s control and will be at MasterCard’s expense.

Assignment and Sublicense. Applicant agrees that MasterCard may assign or sublicense this license to any MasterCard direct or indirect subsidiary or affiliate. Applicant may not sell, sublicense, assign or otherwise transfer any of its rights under this license, whether by sale, consolidation, merger, amalgamation, operation of law or otherwise, without MasterCard’s express written consent. This license shall be binding on Applicant’s successors and assigns.

Governing Law, Payment of Taxes. All questions with respect to the interpretation, effect, and validity of this License Agreement, and the rights and obligations of the parties, shall be decided under the laws of the State of New York, without regard to its choice of laws provisions. Applicant consents to personal jurisdiction in the courts of the State of New York for all disputes arising out of this License Agreement, including but not limited to enforcement of the License Agreement. Notwithstanding the foregoing, if Applicant is an entity in the Europe Region (as defined in the Standards) then this license shall be governed in all respects and construed in accordance with the laws of England and Wales without regard to conflict of law provisions. Applicant agrees to pay all taxes that might be charged by any country or other jurisdiction in which Applicant conducts activities authorized by this License Agreement against any of the amounts due under the Standards, and such payments shall be made to MasterCard by Applicant without deduction for any such taxes.

Certification. Applicant certifies that it meets all requirements to be a licensee for each Mark set forth on the attached Summary of Licenses Granted, and is fully authorized and empowered to perform all of the functions it has elected to perform, and that the application for this license has been duly authorized by appropriate corporate action.

This License Agreement is the entire agreement between Applicant and MasterCard pertaining to the subject matter hereof and supersedes any prior agreements or representations, whether oral or written.

Applicant further certifies that Applicant is chartered as CREDIT CARD AND PAYMENT INSTITUTION [type of institution] under the laws of BRAZIL [country].

 

Legal Name of Applicant:		EO2 SOLUCOES DE PAGAMENTO SA
The signing officer must be duly authorized to execute the application
Officer Name:		DAVID VELEZ OSORNO		Officer Title:		CEO
Officer Signature:		/s/ David Velez Osorno		Date:		19/DEC/2013
MasterCard Entity:		MASTERCARD INTERNATIONAL INCORPORATED
MasterCard Signature:		/s/ Ajay Banga		Effective Date:		29/JAN/2014
Title:		AJAY BANGA
		PRESIDENT & CEO

 

 

MasterCard License Agreement		Page 3 of 3		Revised: July 2013 ©2013 MasterCard

 

CONFIDENTIAL

SUPPLEMENT TO MASTERCARD LICENSE AGREEMENT

This Supplement to MasterCard License Agreement (the “Supplement”) is effective Date set forth below and is entered into by and between EO2 Soluções de Pagamento S.A. (“Licensee”) and MasterCard International Incorporated (“MasterCard”) and constitutes a supplement to the MasterCard License Agreement entered into by and between Licensee and MasterCard (the “License Agreement”) pursuant to which MasterCard granted to Licensee a license (the “License”) to use the Marks subject to the terms and conditions set forth in the License Agreement.

PRELIMINARY STATEMENTS

WHEREAS, Licensee has received the License from MasterCard authorizing Licensee to engage in the MasterCard business and use the Marks; and,

WHEREAS, such License is subject to certain additional terms and conditions as forth in this Supplement;

NOW THEREFORE, incorporating the above preliminary statements, and in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, MasterCard and Licensee further agree as follows:

1. Terms and Conditions upon License. With respect to its participation in the MasterCard business in the Federative Republic of Brazil (“Brazil”) pursuant to the License, notwithstanding anything in the License Agreement or Rules to the contrary and in addition to any other obligations Licensee may owe MasterCard under the License Agreement or Rules, Licensee hereby further acknowledges and agrees, throughout the term of the License (the “Term”), that:

 

a.

Financial Reporting. Licensee will deliver to MasterCard (i) quarterly within 45 days following the end of the first three fiscal quarters of each fiscal year of Licensee, consolidated and consolidating balance sheets, income statements and statements of cash flow of Licensee for such quarterly period and for the period from the end of the last fiscal year of Licensee, and (ii) within 90 days following the end of each fiscal year of Licensee audited comparative consolidated and unaudited comparative consolidating balance sheets, income statements and statements of cash flows, certified, in the case of consolidated annual statements by independent public accountants of recognized standing, and in the case of quarterly and consolidating annual statements, by a financial officer of Licensee for such period.

 

b.

Audits. Licensee will submit to as many audits or investigations, as MasterCard may determine, and conducted as MasterCard deems appropriate, to determine Licensee’s compliance with the provisions of this Supplement, the License Agreement and the MasterCard Bylaws and Rules (the “Rules”). Such audits or investigations may also include, without limitation, Licensee’s anti-money laundering practices and procedures, OFAC rules compliance, financial soundness, corporate governance and operating standards and controls. MasterCard may at its discretion engage the services of independent third parties to assist in the conduct of such audits or investigations. Such audit will be conducted at Licensee’s expense. Licensee will cooperate, and cause the cooperation of its independent auditors and other necessary agents and personnel, in the conduct of any such audit or investigation by MasterCard or such independent third party.

 

c.

Credit Products Only; Program Registration Requirement. Licensee acknowledges and agrees that the License authorizes Licensee to engage solely in the issuing of MasterCard Credit Products, and under no circumstances shall the Licensee issue, or attempt to issue, by direct or indirect means, any MasterCard Debit Products or MasterCard Prepaid Products without the prior written consent of MasterCard. Also, all such MasterCard Credit Product programs to be issued by Licensee, pursuant to this License, shall be pre-approved in writing by, and registered as a Special Issuer Program with, MasterCard prior to issuing such payment cards.

 

 

Page 1 of 3

 

CONFIDENTIAL

 

d.

No Sponsorship of Affiliates. Licensee shall not sponsor any other entity to be an Affiliate member or licensee of MasterCard.

 

e.

Brazil Only; No Extensions of Area of Use. Licensee shall issue MasterCard Credit Products only within the national territory of Brazil. Licensee shall not be permitted to request and shall not be entitled to receive an extension of area of use. Notwithstanding the above, the MasterCard Credit Products to be issued by Licensee pursuant to the License may have international (i.e., outside of Brazil) acceptance and other functionalities.

 

f.

Exclusivity; Agreements Respecting Competing Brands. Licensee shall refrain from entering into any agreement or arrangement that will have the effect of marketing, promoting, publicizing, issuing, acquiring, or facilitating the issuance, acquisition, or use of any payment card, or similar device, issued under, or in association with, a Competing Brand. For purposes of this subsection, the term “Competing Brand” shall include Visa, American Express, Discover, Diners Club, JCB, Carte Blanche, CarNet or any other brand that MasterCard determines to be in competition with MasterCard.

 

g.

Card Retention (Non-Conversion). Licensee shall cause all MasterCard payment cards issued by Licensee during the Term to remain MasterCard-branded payment cards and shall ensure that no such MasterCard-branded payment cards are converted to a brand other than the MasterCard® brand for the duration of the cardholders’ relationship with Licensee (the “Non-Conversion Period”). Licensee further acknowledges and agrees that if, during the Non-Conversion Period, Licensee in any way divests itself (including, without limitation, by way of sale of any MasterCard-branded payment cards, by voluntary or involuntary transfer, by operation of law or otherwise) of one or more MasterCard-branded payment cards that would have been subject to the terms of the Supplement had no such divestiture occurred, then Licensee shall guarantee to MasterCard the continued observance by the entity acquiring such MasterCard-branded payment cards of the provisions and obligations of this subsection following such divestiture with respect to the divested MasterCard-branded payment cards. The provisions of this subsection shall survive termination of this Supplement.

 

h.

Switching Exclusivity. Licensee hereby agrees that all of its MasterCard-branded payment card transactions will be routed for authorization, clearing and settlement through the Global Clearing Management System (GCMS), the centralized clearing facility owned and operated by MasterCard for the daily processing and routing of financial transactions between MasterCard and its members.

 

i.

Legal and Regulatory Compliance; Indemnification. Licensee hereby represents and warrants to MasterCard that the execution and delivery of the License Agreement (as modified by this Supplement), and the performance of the MasterCard limited issuing business in Brazil contemplated in such documents, do not violate any law, statute, ordinance, regulation, judgment, writ, injunction, rule, decree, order, or any other restriction or requirement of any kind or character applicable to Licensee. Licensee hereby further represents and warrants to MasterCard that Licensee’s activities to be performed pursuant to the License shall not constitute banking activity under applicable Brazilian law or regulation. In addition to any other indemnification obligation Licensee may owe to MasterCard under the License Agreement, Rules or otherwise, Licensee shall indemnify and hold harmless MasterCard, and its stockholders, directors, officers, employees, agents and affiliates, from and against any and all actions, proceedings, losses, costs, expenses (including, without limitation, the fees and expenses of counsel for MasterCard at both trial and all appellate and bankruptcy levels), claims and/or demands in any way arising out of the acts or omissions and/or the performance or failure to perform by Licensee in connection with the representations and/or warranties made by Licensee to MasterCard under this subsection, including, without limitation, in the event that any of such representations and/or warranties are not true.

 

Page 2 of 3

 

CONFIDENTIAL

 

2. Miscellaneous. Except as expressly supplemented or amended herein, the License Agreement shall continue in full force and effect as in effect on the date of this License Supplement. To the extent that any such terms of the License Agreement conflict with the terms of this Supplement, the terms of this Supplement shall govern. All capitalized terms not defined herein shall have the meanings given to them in the License Agreement or Rules. For purposes of this Supplement: (i) the term “MasterCard Credit Product(s)” means a MasterCard-branded credit card that has the characteristics approved by MasterCard’s Franchise Department in authorizing the issuance of such a product in accordance with the Rules; (ii) the term “MasterCard Debit Product(s)” means a MasterCard-branded debit card that has the characteristics approved by MasterCard’s Franchise Department in authorizing the issuance of such a product in accordance with the Rules; and, (iii) the term “MasterCard Prepaid Product(s)” means a MasterCard-branded prepaid card that has the characteristics approved by MasterCard’s Franchise Department in authorizing the issuance of such a product in accordance with the Rules. Nothing herein is, or shall be construed as, a waiver or release of any right or privileged held by, or obligation Licensee may owe to, MasterCard under the License Agreement or Rules. All such rights and privileges are affirmatively retained by MasterCard.

IN WITNESS WHEREOF, the parties have negotiated and agreed upon each and every one of the provisions in this Supplement for which reason this Supplement cannot under any circumstances be considered an adhesion contract and have executed this Supplement as of the date first written above.

 

MASTERCARD INTERNATIONAL INCORPORATED
By:		/s/ Ajay Banga
Name: AJAY BANGA
Title: PRESIDENT & CEO
Effective Date: 29/JAN/2014
EO2 SOLUÇÕES DE PAGAMENTO S.A.
By:		/s/ Cristina Junqueira
Name: CRISTINA JUNQUEIRA
Title: DIRECTOR
Date: 19/DEC/2013

 

Page 3 of 3

 

 

Exhibit 10.5

 

Franchise Development   Mastercard Worldwide Regional Licensing, Standards & Business Enablement Carrera 11 # 85A-09 Ed, Amadeus Of. 801 Bogotá D.C. - Colombia

(315) 492-9856

www.mastercard.com

August 24th. 2020

Juan Carlos Guillermety

Head of Strategy, Business

Development and M&A

Nu Pagamentos S.A.

Rua Capote Valente 39

Sao Paulo

Dear Mr Juan Carlos Guillermety

It is a pleasure to inform you that Mastercard International Incorporated has approved Nu Pagamentos S.A.’s request to use the Mastercard, Maestro, and Cirrus brand mark in Colombia, on a non-exclusive basis, effective immediately. Enclosed is a revised Schedule A which reflects the addition of Extension Area of Use into Colombia to the Mastercard License Agreement.

The following ICA and BIN have been assigned for Nu Pagamentos S.A.. for the Extension Area of Use into Colombia:

 

ICA:		30447 – Mastercard
BIN:		555825 (MCG – Mastercard Gold)
		555829 (MPL – Mastercard Platinum)

You must contact Customer Implementation Services (CIS) to coordinate the implementation and activation of this ICA in the Mastercard production environment. CIS can proceed with the formal implementation process, pending receipt of all other required and/or optional forms. To determine which additional forms are required, and for further assistance, you may contact CIS via email as follows:

CIS LAC [email protected]

Nu Pagamentos S.A. will be fully responsible for all transactions and billing affected under these assignments and obligated to activate their ICA/BINs within a year of assignment. A billing account must first be established and appropriately funded in order to initiate the activation process.

To establish a billing account, the Billing Services Notification and Summary Reports Request forms must be completed. If you have already submitted these forms, then no further action is required. If you have not completed the forms, the forms have been attached to this letter. Please complete and submit the forms to CIS within 30 days.

Billing and settlement will begin as soon as the ICA has been assigned in the MasterCard systems. On behalf of Mastercard, we extend our best wishes for continued success with all of your Mastercard programs! We look forward to working with you and wish you success with all of your Mastercard programs.

Sincerely,

/s/ David Fernando Martínez                              

David Fernando Martínez

Franchise Core – LAC

 

C.C.	Carlos Marin - Account Manager (Bogotá)

Bogotá File

 

SUMMARY OF LICENSES GRANTED

 

LICENSEE:		Nu Pagamentos S.A.
ADDRESS:		RUA CAPOTE VALENTE 39 – Sao Paulo, Brasil

 

Authorized Marks		Type of License Participation		Type of activity		Geographic locations		Date after which Licensee is authorized to use this Authorized Mark
MasterCard Mark:		•   Principal		•   Issuing activities Only		LAC - Colombia		08/24/2020

Upon being granted a license to use any one of the Mastercard Brand Mark, Applicant shall also be granted a limited license to acquire Mastercard at ATMs operated or sponsored by Applicant in accordance with the applicable Rules and to display the Mastercard Brand Marks at such ATMs.

DATE: 08/24/2020

 

LICENSE AGREEMENT

THIS LICENSE AGREEMENT is between Mastercard International Incorporated or its undersigned affiliate (“Mastercard”) and the undersigned entity, Nu Pagamentos S.A. (“Applicant”).

Marks. Applicant acknowledges that Mastercard owns, manages, is licensee of, or otherwise controls all rights, title and interest to the trade names, trademarks, service marks and logotypes (the “Designations”) set forth below. This License Agreement governs the use of the Designations identified below (each a “Mark”) and other trade names, trademarks, service marks and logotypes identified from time to time in the Standards (defined below) or policies of Mastercard (each, an “Other Identified Mark” and, together with each Mark, the “Marks”). “Mastercard” shall mean and include its parent, subsidiaries and affiliates. Capitalized terms used in this license agreement shall have the meanings ascribed to them in the Standards, unless defined herein.

 

•

Interlocking Circles Device. Mastercard owns all rights, title and interest to the trademark, service mark and logotype known as the Interlocking Circles Device and all variations thereof, and United States and worldwide registrations for such mark (the “Interlocking Circles Device”).

 

•

Mastercard Marks. Mastercard owns all right, title and interest in and to the trademark, trade name and service mark “Mastercard” and marks utilizing that designation, including Mastercard Electronic and Mastercard Cash, and United States and worldwide registrations for such marks (the “Mastercard Marks”).

 

•

Cirrus Marks. Mastercard owns all right, title and interest in and to the trademark, trade name and service mark “Cirrus” and marks utilizing that designation and United States and worldwide registrations for such marks (the “Cirrus Marks”), to use and sublicense the use of the Cirrus Marks.

 

•

Maestro Marks. Mastercard owns all right, title and interest in and to the trademark, trade name and service mark “Maestro” and marks utilizing that designation and United States and worldwide registrations for such marks (the “Maestro Marks”), to use and to sublicense the use of the Maestro Marks.

Ownership of the Marks. Applicant acknowledges that:

 

(a)	Mastercard is the Exclusive Owner (defined below) of all Mastercard Marks, the Cirrus Marks the Maestro Marks and the Interlocking Circles Device; and

 

(b)	the applicable Exclusive Owner is the owner of any Other Identified Mark.

Applicant acknowledges the validity of the Marks and agrees to never contest such ownership, or in any way dispute the validity of any of the Marks or registrations for the Marks. Applicant agrees that, if any right has accrued or may accrue to Licensee in any of the Marks by operation of law, such right, upon termination of this License Agreement, shall revert to the owner of such Mark(s) as indicated in subsections (a), or (b), above (each such owner, as applicable, an “Exclusive Owner”). Applicant further agrees to cooperate with the Exclusive Owner to perfect such Exclusive Owner’s title in any Mark(s) by written assignment of any rights which may accrue and in any other manner deemed necessary or appropriate by said Exclusive Owner. Applicant agrees that all documents, instruments, papers, letters, advertisements, and cards bearing any of the Marks shall be marked by Applicant with any notices of such Exclusive Owner’s registrations that may be provided by law to preserve the Exclusive Owner’s rights in the Mark(s) or that may be required by Mastercard from time to time. Applicant agrees not to obtain or attempt to obtain, and agrees not to aid any third party in obtaining or attempting to obtain, any right in any trademark, trade name, service mark, logotype or other device, designation, internet domain name, or intellectual property right that is confusingly similar to or employs any part of any Mark including, without limitation, the word “Master” or “Maestro” or any word containing the word “Master” or “Maestro” as a prefix or suffix, or “Master” or “Maestro” used in connection with any service offered by Applicant; and, upon request by Mastercard, Applicant agrees to assign, by instruments satisfactory in form and substance to Mastercard’s counsel and without royalty or other payment of any kind, any and all of such rights that Licensee may obtain or may have obtained. Applicant agrees to never take any action, or permit or fail to take any action that may injure, harm or dilute the distinctiveness or goodwill in and to any of the Marks. Applicant further acknowledges that any use of any Mark inures to the benefit of the Exclusive Owner of that Mark.

 

Mastercard License Agreement		Page 1 of 4		Revised: March 2018 ©2018 Mastercard

 

Grant of License. Applicant accepts (as granted), a non-exclusive license to use the Marks identified in the Summary of Licenses Granted (attached to this License Agreement and incorporated herein) in the geographic areas set forth therein, solely in connection with the Program(s). The term “Program” is defined in the Standards applicable to each Mark referenced in the Summary of Licenses Granted that Applicant operates in a geographic area. Upon execution by Mastercard, this License Agreement is effective as of the Effective Date set forth below and shall remain in effect until terminated in accordance with the Standards. Mastercard may, from time to time, modify the Summary of Licenses Granted to add a Mark, delete a Mark, change the type(s) of license participation, or change the type(s) of activity, and geographic locations that apply to Applicant for one or more Marks. Upon being granted a license to use any one of the Mastercard, Maestro or Cirrus Marks, Applicant shall also be granted a limited license to acquire Mastercard, Maestro and Cirrus transactions at ATMs operated or sponsored by Applicant in accordance with the applicable Standards and to display the Mastercard, Maestro and Cirrus Marks at such ATMs.

Standards. At all times, Applicant shall observe the Amended and Restated Certificate of Incorporation, Bylaws, Rules, and policies, and the operating regulations and procedures of Mastercard, including but not limited to any manual, guide and/or bulletin, as may be amended from time to time (the “Standards”). The Standards are incorporated herein by reference and made a part of this License Agreement. Mastercard shall have the right to inspect samples of all advertising and marketing materials bearing the Marks to insure compliance with the Standards, and Applicant shall promptly correct any deficiency.

Term. Subject to the termination provisions set forth in this License Agreement and in the Standards, this License Agreement shall have an initial term of ten (10) years, commencing upon the Effective Date set forth below, and shall be automatically renewed for successive ten (10)-year renewal terms unless (i) at least thirty (30) calendar days prior to the end of the initial term or any renewal term, Mastercard notifies Applicant in writing that this License Agreement will not be renewed or (ii) this License Agreement has otherwise been terminated pursuant to its provisions or the Standards. Subject to such other License and/or Membership termination provisions set forth in this License Agreement or in the Standards that provide for termination either without notice or upon shorter notice, Mastercard shall have the right, upon no fewer than thirty (30) calendar days advance written notice to Applicant, to terminate this License Agreement at any time without cause. Applicant shall cease using the Marks upon termination of the License Agreement.

Representations and Warranties. Applicant hereby represents and warrants that the information provided in Applicant’s application for this license is true and complete. Should circumstances change that would affect Applicant’s continued eligibility to be a licensee, as specified in the Standards, Applicant agrees to immediately notify Mastercard in writing. Applicant shall immediately notify Mastercard in writing of any changes in the completeness or accuracy of such information or of a change in circumstances that would or could affect Applicant’s continued eligibility to be a licensee in accordance with the eligibility criteria set forth in the Standards. Applicant further represents and warrants that the execution and delivery of this License Agreement and the performance by Applicant of the activities licensed hereunder will not violate any law, statute, ordinance, regulation, judgment, writ, injunction, rule, decree, order, or any other restriction or requirement applicable to Applicant. Licensee further represents and warrants that it has, and shall maintain, any and all government licenses and permits that are necessary for Applicant to be authorized to engage in the activities to be performed pursuant to this License Agreement.

Compliance with Law. For so long as this license is in effect, Mastercard and Applicant shall comply with all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements relating in any way to the privacy, confidentiality or security of personal data, including, without limitation: the EU/2016/679 General Data Protection Regulation; and the requirements of the Gramm-Leach-Bliley Act and its implementing regulations (15 U.S.C. § 6801 et seq.) (collectively, the “GLB Act”), which shall include, without limitation, the maintenance of a comprehensive information security program, that is designed to insure the security and confidentiality of non-public information about cardholders, applicants, or other customers by, among other things: (i) protecting against any anticipated threats or hazards to the security or integrity of such information; (ii) protecting against unauthorized access to or use of such information; (iii) detecting, preventing and responding to, in a prompt manner, attacks, intrusions or other system failures; (iv) ensure the proper disposal of such information; and (v) regularly testing or otherwise monitoring the effectiveness of such information safeguards.

 

Mastercard License Agreement		Page 2 of 4		Revised: March 2018 ©2018 Mastercard

 

Notice of infringement. As soon as Applicant acquires any knowledge of (i) any infringement of any Mark, (ii) any conflicting claim of third parties with respect to a Mark, or (iii) any failure of any other licensee to adhere to the Standards, Applicant shall so notify Mastercard in writing. Applicant agrees to give all lawful and reasonable aid requested by Mastercard or any other Exclusive Owner in connection with efforts to enforce, preserve and defend a Mark. All litigation carried on by Applicant at Mastercard’s request shall be subject to Mastercard’s control and will be at Mastercard’s expense.

Assignment and Sublicense. Applicant agrees that Mastercard may assign or sublicense this license to any Mastercard direct or indirect subsidiary or affiliate. Applicant may not sell, sublicense, assign or otherwise transfer any of its rights under this license, whether by sale, consolidation, merger, amalgamation, operation of law or otherwise, without Mastercard’s express written consent. This license shall be binding on Applicant’s successors and assigns.

Governing Law, Payment of Taxes. All questions with respect to the interpretation, effect, and validity of this License Agreement, and the rights and obligations of the parties, shall be decided under the laws of the State of New York, without regard to its choice of laws provisions. Applicant consents to personal jurisdiction in the courts of the State of New York for all disputes arising out of this License Agreement, including but not limited to enforcement of the License Agreement. Notwithstanding the foregoing, if Applicant is an entity in the Europe Region (as defined in the Standards) then this license shall be governed in all respects and construed in accordance with the laws of England and Wales without regard to conflict of law provisions. Applicant agrees to pay all taxes that might be charged by any country or other jurisdiction in which Applicant conducts activities authorized by this License Agreement against any of the amounts due under the Standards, and such payments shall be made to Mastercard by Applicant without deduction for any such taxes.

Certification. Applicant certifies that it meets all requirements to be a licensee for each Mark set forth on the attached Summary of Licenses Granted, and is fully authorized and empowered to perform all of the functions it has elected to perform, and that the application for this license has been duly authorized by appropriate corporate action.

This License Agreement is the entire agreement between Applicant and Mastercard pertaining to the subject matter hereof and supersedes any prior agreements or representations, whether oral or written, including, without limitation, the License Agreement entered into by and between Mastercard and the Applicant (then named EOS Soluções de Pagamento S.A.) on January 19, 2014.

Applicant further certifies that Applicant is chartered as a corporation under the laws of Brazil.

[Signatures follow in the next page.]

 

Mastercard License Agreement		Page 3 of 4		Revised: March 2018 ©2018 Mastercard

 

Legal Name of Applicant: Nu Pagamentos S.A.

The signing officer must be duly authorized to execute the application.

 

Officer Name: Guilherme Marcos do Lago

Officer Title: Director

Officer Signature: /s/ Guilherme Marcos do Lago

Date:

 

Mastercard Entity:		AJAY BANGA
Mastercard Signature:		/s/ Ajay Banga				Effective Date:		04/24/2020
Title:		PRESIDENT & CEO

[Signature Page of the License Agreement entered into by and between Mastercard International

Incorporated and Nu Pagamentos S.A.]

 

Mastercard License Agreement		Page 4 of 4		Revised: March 2018 ©2018 Mastercard

 

CONFIDENTIAL

 

First Amendment to

License Agreement

This amendment to the License Agreement (“Amendment”) is entered into as of the Effective Date set forth below by and between Mastercard International Incorporated or its undersigned affiliate (“Mastercard”) and the undersigned entity (“Licensee”).

PRELIMINARY STATEMENTS

A. WHEREAS, Mastercard and Licensee have entered into that certain License Agreement, dated as of January 29th, 2014 (the “License”);

B. WHEREAS, Licensee and Mastercard have decided and agreed to amend the Summary of Licenses Granted attached to the License;

C. WHEREAS, the parties seek to evidence such amendment in a mutually acceptable writing, which shall amend the License;

NOW, THEREFORE, for good and valuable consideration of the mutual promises and benefits contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Mastercard and Licensee agree to modify and amend the License as follows:

 

1.	AMENDMENTS

 

(a)

The parties hereby agree to replace the Summary of Licenses Granted attached to the License in its entirety with the Summary of Licenses Granted attached as Exhibit A to this Amendment.

 

2.

GENERAL

 

(a)

Definitions. Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the License.

 

(b)

Effect of Amendment; Effective Date. This Amendment amends and supplements certain provisions of the License. The provisions of this Amendment and the License shall be read together and viewed as a single document. To the extent that there is any inconsistency, ambiguity or conflict between this Amendment and the License, the provisions of this Amendment shall prevail. This Amendment is limited as specified and shall not constitute a modification, acceptance or waiver of any other provision of the License. Except as otherwise expressly provided in this Amendment, the provisions of the License shall remain in full force and effect. Unless a provision specifically provides otherwise, the terms and conditions of this Amendment shall be effective as of the Effective Date. Upon termination of the License, this Amendment shall also terminate and be of no further force or effect.

 

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CONFIDENTIAL

 

(c)

Binding Commitment; Execution. The provisions of this Amendment shall constitute binding commitments and agreements on the part of both Mastercard and Licensee immediately upon execution of this Amendment by both parties and shall be effective as of the Effective Date. This Amendment may be executed in counterparts, including via facsimile signatures, which as combined, shall be fully binding and effective.

[signatures on the following page]

 

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CONFIDENTIAL

 

IN WITNESS WHEREOF, Mastercard and Licensee have executed this Amendment as of the date first written above.

 

MASTERCARD INTERNATIONAL INCORPORATED
By:							/s/ Ajay Banga
Name: AJAY BANGA
Title: PRESIDENT & CEO
Effective Date: 04/24/2020
NU PAGAMENTOS S.A.
By:		/s/ Guilherme Marcos do Lago
Name: Guilherme Marcos do Lago
Title: Director
Date:

 

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CONFIDENTIAL

 

SUPPLEMENT TO MASTERCARD LICENSE AGREEMENT

This Supplement to Mastercard License Agreement (the “Supplement”) is effective as of Effective Date set below and is entered into by and between Nu Pagamentos S.A. (“Licensee”) and Mastercard International Incorporated (“Mastercard”) and constitutes a supplement to the Mastercard License Agreement entered into by and between Licensee and Mastercard (the “License Agreement”) pursuant to which Mastercard granted to Licensee a license (the “License”) to use the Marks subject to the terms and conditions set forth in the License Agreement.

PRELIMINARY STATEMENTS

WHEREAS, Licensee has received the License from Mastercard authorizing Licensee to use the Marks and engage only in Mastercard issuing Activity in Brazil and any other country or jurisdiction for which Licensee receives an extension of area of use as outlined in Section 1(e) below (the “Area of Use”); and,

WHEREAS, such License is subject to certain additional terms and conditions as forth in this Supplement;

NOW THEREFORE, incorporating the above preliminary statements, and in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Mastercard and Licensee further agree as follows:

1. Terms and Conditions upon License. With respect to its participation in the issuing or acquiring Mastercard business in the Area of Use pursuant to the License, notwithstanding anything in the License Agreement or the Mastercard Standards as defined in the License Agreement, including, but not limited to the Mastercard Rules, to the contrary and in addition to, and not in lieu of, any other obligations Licensee may owe Mastercard under the License Agreement or Standards, Licensee hereby further acknowledges and agrees, throughout the term of the License (the “Term”), that:

 

a.

Financial Reporting. At Mastercard’s written request, Licensee will deliver to Mastercard (i) quarterly within 45 days following the end of the first three fiscal quarters of each fiscal year of Licensee, consolidated and consolidating balance sheets, income statements and statements of cash flow of Licensee for such quarterly period and for the period from the end of the last fiscal year of Licensee, and (ii) within 90 days following the end of each fiscal year of Licensee audited comparative consolidated and unaudited comparative consolidating balance sheets, income statements and statements of cash flows, certified, in the case of consolidated annual statements by independent public accountants of recognized standing, and in the case of quarterly and consolidating annual statements, by a financial officer of Licensee for such period.

 

b.

Audits. At Mastercard’s written request, Licensee will submit to periodic audits or investigations, as Mastercard may determine, and conducted as Mastercard deems appropriate, to determine Licensee’s compliance with the provisions of this Supplement, the License Agreement and the Mastercard Rules and other standards (the “Rules”). Such audits or investigations may also include, without limitation, Licensee’s anti-money laundering practices and procedures, OFAC rules compliance, financial soundness, corporate governance and operating standards and controls. Mastercard may at its discretion engage the services of independent third parties to assist in the conduct of such audits or investigations. Such audit will be conducted at Licensee’s expense. Licensee will cooperate, and cause the cooperation of its independent auditors and other necessary agents and personnel, in the conduct of any such audit or investigation by Mastercard or such independent third party.

 

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CONFIDENTIAL

 

c.

Approved Products Only; Program Registration Requirement. Licensee acknowledges and agrees that the License authorizes Licensee to engage solely in the issuing of the Mastercard products or acquiring of Mastercard transactions detailed in the Summary of Licenses Granted (attached to the License Agreement) and under no circumstances shall the Licensee issue or acquire, or attempt to issue or acquire, by direct or indirect means, any other Mastercard products or transactions, without the prior written consent of Mastercard. Also, all such authorized Mastercard products to be issued or transactions to be acquired by Licensee, pursuant to this License, shall be pre-approved in writing by, and registered with, Mastercard prior to issuing such payment cards or acquiring such transactions.

 

d.

No Sponsorship of Affiliates. Licensee shall not sponsor any other entity to be an Affiliate licensee of Mastercard.

 

e.

Extensions of Area of Use. Licensee shall seek Mastercard’s prior written consent before any extension of area of use into every country or jurisdiction into which Licensee desires to issue, or will issue, permitted Mastercard-branded products or desires to acquire, or will acquire Mastercard transactions in accordance with the Mastercard Rules. Mastercard may or may not grant any such extension of area of use request, at its sole discretion.

 

f.

Legal and Regulatory Compliance; Indemnification. Licensee hereby represents and warrants to Mastercard that the execution and delivery of the License Agreement (as modified by this Supplement), and the performance of the Mastercard issuing or acquiring business in the Area of Use contemplated in such documents, do not violate any law, statute, ordinance, regulation, judgment, writ, injunction, rule, decree, order, or any other restriction or requirement of any kind or character applicable to Licensee. Licensee hereby further represents and warrants to Mastercard that (i) Licensee’s activities to be performed pursuant to the License shall not constitute unlawful banking or other activity under applicable law or regulation and (ii) Licensee has performed the requisite due diligence to ensure the performance of Licensee’s Mastercard issuing or acquiring business in the Area of Use is and at all times will be in compliance with applicable local laws and regulations. In addition to any other indemnification obligation Licensee may owe to Mastercard under the License Agreement, Standards or otherwise, Licensee shall protect, indemnify and hold harmless Mastercard, and its stockholders, directors, officers, employees, agents and affiliates, from and against any and all actions, proceedings losses, costs, liability and/or expenses (including, without limitation, the fees and expenses of counsel for Mastercard at both trial and all appellate and bankruptcy levels, costs of investigation, and disbursement), actual and threatened claims and/or demands in any way arising out of the acts or omissions and/or the performance or failure to perform by Licensee in connection with the representations and/or warranties made by Licensee to Mastercard under this subsection, including, without limitation, in the event that any of such representations and/or warranties are proven to not be true.

 

g.

Compliance with Anti-Bribery and Corruption Laws. Licensee shall comply, and shall ensure that each of its subcontractors and personnel complies, with all applicable anti-bribery and corruption laws. Licensee warrants, represents and covenants to Mastercard that Licensee (and each of its employees, subcontractors and personnel) has not and shall not, in connection with the activities contemplated by this Supplement or in connection with any other business activities involving Mastercard, make, promise or offer to make any payment or transfer of anything of value or any other advantage directly or indirectly through a representative, intermediary agent or otherwise to any person for the purpose of improperly influencing any act, omission to act or decision of such individual or securing an improper advantage to assist the Licensee in obtaining or retaining business. Licensee also warrants, represents and covenants to Mastercard that Licensee and each of its employees, subcontractors and personnel shall not, in connection with any business activities involving Mastercard, accept anything of value from any third party seeking to influence any act or decision of Licensee or in order to secure an improper advantage to that third party.

 

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CONFIDENTIAL

 

2. Miscellaneous. Except as expressly supplemented or amended herein, the License Agreement shall continue in full force and effect as in effect on the date of this License Supplement. To the extent that any such terms of the License Agreement conflict with the terms of this Supplement, the terms of this Supplement shall govern. All capitalized terms not defined herein shall have the meanings given to them in the License Agreement or Standards. If applicable local law and/or regulation within Licensee’s Area of Use impose a greater or a conflicting obligation on Licensee’s Activities, such applicable local law and/or regulation shall govern. Nothing herein is, or shall be construed as, a waiver or release of any right or privilege held by, or obligation Licensee may owe to, Mastercard under the License Agreement or Standards. All such rights and privileges are affirmatively retained by Mastercard.

[Signature on the following page]

 

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CONFIDENTIAL

 

IN WITNESS WHEREOF, the parties have negotiated and agreed upon each and every one of the provisions in this Supplement for which reason this Supplement cannot under any circumstances be considered an adhesion contract and have executed this Supplement as of the date first written above.

 

MASTERCARD INTERNATIONAL INCORPORATED
By:							/s/ Ajay Banga
Name: AJAY BANGA
Title: PRESIDENT & CEO
Effective Date: 04/24/2020
NU PAGAMENTOS S.A.
By:		/s/ Guilherme Marcos do Lago
Name: Guilherme Marcos do Lago
Title: Director
Date:

[Signature Page of the Supplement to Mastercard License Agreement entered into by and between

Mastercard International Incorporated and Nu Pagamentos S.A.]

 

Page 4 of 4

 

 

Exhibit 10.6

 

Vivian Baker Franchise Development Head, Licensing, Standards & Business Enablement Latin America and the Caribbean Region   MasterCard | MasterCard Worldwide 801 Brickell Avenue, Suite #1300 | Miami, FL 33131

1-305-539-2366

[email protected]

January 3, 2019

Mr. David Velez Osorno

Legal Representative

NU BN MEXICO SOCIEDAD ANONIMA DE CAPITAL VARIABLE.

Paseo de las Palmas 1702- 405

03100 Ciudad de Mexico

Dear Mr. Velez.

It is a pleasure to inform you that NU BN MEXICO SOCIEDAD ANONIMA DE CAPITAL VARIABLE.CV. Application for MasterCard Principal Participation and License for MasterCard has been approved, effective January 3, 2019. This approval is subject to the provisions of the brand’s governing rules, and revocable for any violation of the MasterCard License Agreement.

Enclosed is a fully executed MasterCard License Agreement, Supplement Agreement, and a Summary of Licenses Granted which reflects the brands for which a license has been granted and the type of participation for each. NU BN MEXICO SOCIEDAD ANONIMA DE CAPITAL VARIABLE. License is limited to Issuing Card Activities only in Mexico, and cannot Sponsor Affiliates.

The following ICA and BINs have been assigned for NU BN MEXICO SOCIEDAD ANONIMA DE CAPITAL VARIABLE, for testing purposes only:

 

ICA:		20891
BIN:		230899 (MCS — Mastercard Standard)
BIN:		230909 (MCG — Gold Mastercard)
BIN:		230950 (MPL — Platinum Mastercard)

You must contact Customer Implementation Services (CIS) to coordinate the implementation and activation of this ICA in the MasterCard production environment. CIS can proceed with the formal implementation process, pending receipt of all other required and/or optional forms. To determine which additional forms are required, and for further assistance, you may contact CIS via email:

[email protected]

 

Mr. David Velez Osorno

Legal Representative

January 3, 2019

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NU BN MEXICO SOCIEDAD ANONIMA DE CAPITAL VARIABLE. will be fully responsible for all transactions and billing affected under these assignments and obligated to activate their ICA/BINs within a year of assignment. A billing account must first be established and appropriately funded in order to initiate the activation process.

To establish a billing account, the Billing Services Notification and Summary Reports Request forms must be completed. If you have already submitted these forms, then no further action is required. If you have not completed the forms, the forms have been attached to this letter. Please complete and submit the forms to CIS within 30 days. Billing and settlement will begin as soon as the ICA has been assigned in the MasterCard systems.

To assist in your understanding of MasterCard rules, policies, products and services, please visit our website at www.mastercardconnect.com.

We look forward to working with you and wish you success with all of your MasterCard programs.

Sincerely,

/s/ Vivian Baker

Vivian Baker

 

cc:	Carlos Aguilar – MasterCard (Mexico)

Salvador Salgado – MasterCard (Mexico)

 

SUMMARY OF LICENSES GRANTED

 

LICENSEE:		NU BN MEXICO SOCIEDAD ANONIMA DE CAPITAL VARIABLE.
ADDRESS:		Paseo de las Palmas 1702- 405
		03100 Ciudad de Mexico

 

Authorized Marks		Type of License Participation		Type of activity		Geographic locations		Date after which Licensee is authorized to use this Authorized Mark
MasterCard Mark:		•   Principal		•   Issuing card activities		México		January 3, 2019
Cirrus Mark:		•   Principal		•   Issuing card activities		México		January 3, 2019

Upon being granted a license to use any one of the MasterCard, Maestro or Cirrus Marks, Applicant shall also be granted a limited license to acquire MasterCard, Maestro and Cirrus transactions at ATMs operated or sponsored by Applicant in accordance with the applicable Rules and to display the MasterCard, Maestro and Cirrus Marks at such ATMs.

DATE: January 3, 2019

 

 

CONFIDENTIAL

SUPPLEMENT TO MASTERCARD LICENSE AGREEMENT

This Supplement to MasterCard License Agreement (The “Supplement”) is effective as of Effective Date set below and is entered into by and between NU BN MEXICO, SOCIEDAD ANONIMA DE CAPITAL VARIABLE(“Licensee”) and MasterCard International Incorporated (“MasterCard”) and constitutes a supplement to the MasterCard License Agreement entered into by and between Licensee and MasterCard (the “License Agreement”) pursuant to which MasterCard granted to Licensee a license (the “License”) to use the Marks subject to the terms and conditions set forth in the License Agreement.

PRELIMINARY STATEMENTS

WHEREAS, Licensee has received the License from MasterCard authorizing Licensee to use the Marks and engage in the limited acquiring-only MasterCard business in Mexico (the “Area of Use”); and,

WHEREAS, such License is subject to certain additional terms and conditions as forth in this Supplement;

NOW THEREFORE, incorporating the above preliminary statements, and in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, MasterCard and Licensee further agree as follows:

1. Terms and Conditions upon License. With respect to its participation in the limited acquiring-only MasterCard business in the Area of Use pursuant to the License, notwithstanding anything in the License Agreement or Rules to the contrary and in addition to, and not in lieu of, any other obligations Licensee may owe MasterCard under the License Agreement or Rules, Licensee hereby further acknowledges and agrees, throughout the term of the License (the “Term”), that:

 

a.

Financial Reporting. At MasterCard’s written request, Licensee will deliver to MasterCard (i) quarterly within 45 days following the end of the first three fiscal quarters of each fiscal year of Licensee, consolidated and consolidating balance sheets, income statements and statements of cash flow of Licensee for such quarterly period and for the period from the end of the last fiscal year of Licensee, and (ii) within 90 days following the end of each fiscal year of Licensee audited comparative consolidated and unaudited comparative consolidating balance sheets, income statements and statements of cash flows, certified, in the case of consolidated annual statements by independent public accountants of recognized standing, and in the case of quarterly and consolidating annual statements, by a financial officer of Licensee for such period.

 

b.

Audits. At MasterCard’s written request, Licensee will submit to periodic audits or investigations, as MasterCard may determine, and conducted as MasterCard deems appropriate, to determine Licensee’s compliance with the provisions of this Supplement, the License Agreement and the MasterCard Rules and other standards (the “Rules”). Such audits or investigations may also include, without limitation, Licensee’s anti-money laundering practices and procedures, OFAC rules compliance, financial soundness, corporate governance and operating standards and controls. MasterCard may at its discretion engage the services of independent third parties to assist in the conduct of such audits or investigations. Such audit will be conducted at Licensee’s expense. Licensee will cooperate, and cause the cooperation of its independent auditors and other necessary agents and personnel, in the conduct of any such audit or investigation by MasterCard or such independent third party.

 

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CONFIDENTIAL

 

c.

Anti-Money Laundering Program. Licensee acknowledges and agrees to comply with the MasterCard Anti-Money Laundering Program. The AML Program requires that each Customer have policies, procedures and controls in place to protect against the use of MasterCard systems for money laundering and terrorism financing. Such policies, procedures, and controls must apply to all activity and include, at minimum the AML program requirements as defined by the MasterCard Rules.

 

d.

Issuing and Acquiring Only. Licensee acknowledges and agrees that the License authorizes Licensee to engage Issuing Only in Mexico.

 

e.

Credit and Prepaid Products Only; Program Registration Requirement. Licensee acknowledges and agrees that the License authorizes Licensee to engage solely in the limited issuing of MasterCard Credit and Prepaid Products, and under no circumstances shall the Licensee issue, or attempt to issue, by direct or indirect means, any MasterCard Products without: 1) the prior written consent of MasterCard and 2) the proper authority approval, as applicable. Also, all such MasterCard Prepaid Product programs to be issued by Licensee, pursuant to this License, shall be pre-approved in writing by, and registered as a Special Issuer Registration Program with MasterCard prior to issuing such payment cards. Also, notwithstanding anything herein to the contrary. Licensee represents and warrants to MasterCard and agrees that any MasterCard Prepaid Products issued pursuant to the License will not have access to ATM nor cash redemption that may be understood by the proper regulator as a violation of the applicable Law

 

f.

No Sponsorship of Affiliates. Licensee shall not sponsor any other entity to be an Affiliate member or licensee of MasterCard.

 

g.

Area of Use Only; No Extensions of Area of Use. Licensee shall acquire merchants only within the Area of Use. Licensee shall not be permitted to request and shall not be entitled to receive an extension of area of use.

 

h.

Transaction Switching. Licensee hereby agrees that all of its MasterCard-branded payment card transactions will be routed for authorization, clearing and settlement through the Global Clearing Management System (GCMS), the centralized clearing facility owned and operated by MasterCard for the daily processing and routing of financial transactions between MasterCard and its members.

 

i.

Minimum Authorization, Clearing and Settlement Information.- In the event Licensee decides to switch its MasterCard-brand Mexico domestic transactions through a switch (Cámara de Compensación) other than MasterCard Mexico, S de R.L. de C.V., the Licensee shall provide to MasterCard, through MasterCard Mexico, S de R.L. de C.V., the following minimum information to allow MasterCard and/or MasterCard Mexico, S de R.L. de C.V. to properly manage the intra-day liquidity and the settlement guarantees associated with such transactions as required by the General Rules for Payment Networks (Disposiciónes de Carácter General Applicable a las Redes de Medios de Disposición) published in the Federal Official Gazette on March 11, 2014:

 

j.

 

1.

Daily Net Settlement Advisement

 

2.

On line and real time the Authorization Messages

 

3.

Daily Cleared Records (1st Presentments)

Such authorization messages and clearing records must be provided in accordance with the specifications defined by MasterCard and at the Licensee’s expense. Failure to provide such information as detailed herein may lead to MasterCard imposing fines and assessments on Licensee and/or the suspension or termination of the License, at MasterCard’s sole discretion.

 

		Page 2 of 4

 

CONFIDENTIAL

 

k.

Transaction Blocking Capabilities – In the event Licensee decides to switch its MasterCard-brand Mexico domestic transactions through a switch (Cámara de Compensación) other than MasterCard Mexico, S de R.L. de C.V., the Licensee or its chosen switch shall have the capability to block transactions as follows at MasterCard’s direction:

 

1.

Where MasterCard’s assessment of an individual transaction authorization request requires it, block the authorization of an individual transactions in real-time (i.e. within the real-time authorization request/response flow for the transaction);

 

2.

At MasterCard’s direction, block authorizations for BIN ranges identified by MasterCard within 90 minutes of receiving direction from MasterCard to do so.

 

l.

Legal and Regulatory Compliance; Indemnification. Licensee hereby represents and warrants to MasterCard that the execution and delivery of the License Agreement (as modified by this Supplement), and the performance of the MasterCard acquiring business in the Area of Use contemplated in such documents, do not violate any law, statute, ordinance, regulation, judgment, writ, injunction, rule, decree, order, or any other restriction or requirement of any kind or character applicable to Licensee. Licensee hereby further represents and warrants to MasterCard that Licensee’s activities to be performed pursuant to the License shall not constitute banking activity under applicable law or regulation. In addition to any other indemnification obligation Licensee may owe to MasterCard under the License Agreement, Rules or otherwise, Licensee shall indemnify and hold harmless MasterCard, and its stockholders, directors, officers, employees, agents and affiliates, from and against any and all actions, proceedings, losses, costs, expenses (including, without limitation, the fees and expenses of counsel for MasterCard at both trial and all appellate and bankruptcy levels), claims and/or demands in any way arising out of the acts or omissions and/or the performance or failure to perform by Licensee in connection with the representations and/or warranties made by Licensee to MasterCard under this subsection, including, without limitation, in the event that any of such representations and/or warranties are not true.

 

m.

Compliance with Anti-Bribery and Corruption Laws. Licensee shall comply, and shall ensure that each of its subcontractors and personnel complies, with all applicable anti-bribery and corruption laws. Licensee warrants, represents and covenants to MasterCard that Licensee (and each of its employees, subcontractors and personnel) has not and shall not, in connection with the activities contemplated by this Supplement or in connection with any other business activities involving MasterCard, make, promise or offer to make any payment or transfer of anything of value or any other advantage directly or indirectly through a representative, intermediary agent or otherwise to any person for the purpose of improperly influencing any act, omission to act or decision of such individual or securing an improper advantage to assist the Licensee in obtaining or retaining business. Licensee also warrants, represents and covenants to MasterCard that Licensee and each of its employees, subcontractors and personnel shall not, in connection with any business activities involving MasterCard, accept anything of value from any third party seeking to influence any act or decision of Licensee or in order to secure an improper advantage to that third party. Violation of this clause will constitute a material breach of this Supplement.

 

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CONFIDENTIAL

 

n.

Term and Termination of Agreement. This Agreement shall he effective as of the date executed by duly authorized representatives of both NU BN MEXICO, SOCIEDAD ANONIMA DE CAPITAL VARIABLE and MasterCard, in that order. Either party may terminate this Agreement by delivering to the non-terminating party no less than sixty (60) days prior written notice of its intent to terminate.

 

o.

Governing Law and Venue. This Agreement shall be interpreted by, and enforced pursuant to, the substantive laws of the State of New York save for such jurisdiction’s choice of law provisions. Exclusive venue for any claim or controversy concerning this Agreement shall be in the federal and state courts in and for Westchester County, New York.

2. Miscellaneous. Except as expressly supplemented or amended herein, the License Agreement shall continue in full force and effect as in effect on the date of this License Supplement. To the extent that any such terms of the License Agreement conflict with the terms of this Supplement, the terms of this Supplement shall govern. All capitalized terms not defined herein shall have the meanings given to them in the License Agreement or Rules. Nothing herein is, or shall be construed as, a waiver or release of any right or privileged held by, or obligation Licensee may owe to. MasterCard under the License Agreement or Rules. All such rights and privileges are affirmatively retained by MasterCard.

IN WITNESS WHEREOF, the parties have negotiated and agreed upon each and every one of the provisions in this Supplement for which reason this Supplement cannot under any circumstances be considered an adhesion contract and have executed this Supplement as of the date first written above.

 

MASTERCARD INTERNATIONAL INCORPORATED
By:		/s/ Ajay Banga
Name:		AJAY BANGA
Title:		PRESIDENT & CEO
Effective Date: 01/03/2019
NU BN MEXICO, SOCIEDAD ANONIMA DE CAPITAL VARIABLE
By:		/s/ David Velez
Name:		David Velez
Title:
Date: 30/10/18

 

		Page 4 of 4

 

LICENSE AGREEMENT

THIS LICENSE AGREEMENT is between Mastercard International Incorporated or its undersigned affiliate (“Mastercard”) and the undersigned entity (“Applicant”).

Marks. Applicant acknowledges that Mastercard owns, manages, is licensee of, or otherwise controls all rights, title and interest to the trade names, trademarks, service marks and logotypes (the “Designations”) set forth below. This License Agreement governs the use of the Designations identified below (each a “Mark”) and other trade names, trademarks, service marks and logotypes identified from time to time in the Standards (defined below) or policies of Mastercard (each, an “Other Identified Mark” and, together with each Mark, the “Marks”). “Mastercard’’ shall mean and include its parent, subsidiaries and affiliates. Capitalized terms used in this license agreement shall have the meanings ascribed to them in the Standards, unless defined herein.

 

•

Interlocking Circles Device. Mastercard owns all rights, title and interest to the trademark, service mark and logotype known as the Interlocking Circles Device and all variations thereof, and United States and worldwide registrations for such mark (the “Interlocking Circles Device”).

 

•

Mastercard Marks. Mastercard owns all right, title and interest in and to the trademark, trade name and service mark “Mastercard” and marks utilizing that designation, including Mastercard Electronic and Mastercard Cash, and United States and worldwide registrations for such marks (the “Mastercard Marks”).

 

•

Cirrus Marks. Mastercard owns all right, title and interest in and to the trademark, trade name and service mark “Cirrus’’ and marks utilizing that designation and United States and worldwide registrations for such marks (the “Cirrus Marks”), to use and sublicense the use of the Cirrus Marks.

 

•

Maestro Marks. Mastercard owns all right, title and interest in and to the trademark, trade name and service mark “Maestro” and marks utilizing that designation and United States and worldwide registrations for such marks (the “Maestro Marks”), to use and to sublicense the use of the Maestro Marks.

Ownership of the Marks. Applicant acknowledges that:

(a) Mastercard is the Exclusive Owner (defined below) of all Mastercard Marks, the Cirrus Marks the Maestro Marks and the Interlocking Circles Device; and

(b) the applicable Exclusive Owner is the owner of any Other Identified Mark.

Applicant acknowledges the validity of the Marks and agrees to never contest such ownership, or in any way dispute the validity of any of the Marks or registrations for the Marks. Applicant agrees that, if any right has accrued or may accrue to Licensee in any of the Marks by operation of law, such right, upon termination of this License Agreement, shall revert to the owner of such Mark(s) as indicated in subsections (a), or (b), above (each such owner, as applicable, an “Exclusive Owner”). Applicant further agrees to cooperate with the Exclusive Owner to perfect such Exclusive Owner’s title in any Mark(s) by written assignment of any rights which may accrue and in any other manner deemed necessary or appropriate by said Exclusive Owner. Applicant agrees that all documents, instruments, papers, letters, advertisements, and cards bearing any of the Marks shall be marked by Applicant with any notices of such Exclusive Owner’s registrations that may be provided by law to preserve the Exclusive Owner’s rights in the Mark(s) or that may be required by Mastercard from time to time. Applicant agrees not to obtain or attempt to obtain, and agrees not to aid any third party in obtaining or attempting to obtain, any right in any trademark, trade name, service mark, logotype or other device, designation, internet domain name, or intellectual property right that is confusingly similar to or employs any part of any Mark including, without limitation, the word “Master” or “Maestro” or any word containing the word “Master” or “Maestro” as a prefix or suffix, or “Master” or “Maestro” used in connection with any service offered by Applicant; and, upon request by Mastercard, Applicant agrees to assign, by instruments satisfactory in form and substance to Mastercard’s counsel and without royalty or other payment of any kind, any and all of such rights that Licensee may obtain or may have obtained. Applicant agrees to never take any action, or permit or fail to take any action that may injure, harm or dilute the distinctiveness or goodwill in and to any of the Marks. Applicant further acknowledges that any use of any Mark inures to the benefit of the Exclusive Owner of that Mark.

 

Mastercard License Agreement		Page 1 of 3		Revised: November 2016 ©2016 Mastercard

 

Grant of License. Applicant accepts (as granted), a non-exclusive license to use the Marks identified in the Summary of Licenses Granted (attached to this License Agreement and incorporated herein) in the geographic areas set forth therein, solely in connection with the Program(s). The term “Program” is defined in the Standards applicable to each Mark referenced in the Summary of Licenses Granted that Applicant operates in a geographic area. Upon execution by Mastercard, this License Agreement is effective as of the Effective Date set forth below and shall remain in effect until terminated in accordance with the Standards. Mastercard may, from time to time, modify the Summary of Licenses Granted to add a Mark, delete a Mark, change the type(s) of license participation, or change the type(s) of activity, and geographic locations that apply to Applicant for one or more Marks. Upon being granted a license to use any one of the Mastercard, Maestro or Cirrus Marks, Applicant shall also be granted a limited license to acquire Mastercard, Maestro and Cirrus transactions at ATMs operated or sponsored by Applicant in accordance with the applicable Standards and to display the Mastercard, Maestro and Cirrus Marks at such ATMs.

Standards. At all times, Applicant shall observe the Amended and Restated Certificate of Incorporation, Bylaws, Rules, and policies, and the operating regulations and procedures of Mastercard, including but not limited to any manual, guide and/or bulletin, as may be amended from time to time (the “Standards”). The Standards are incorporated herein by reference and made a part of this License Agreement. Mastercard shall have the right to inspect samples of all advertising and marketing materials bearing the Marks to insure compliance with the Standards, and Applicant shall promptly correct any deficiency.

Term. Subject to the termination provisions set forth in this License Agreement and in the Standards, this License Agreement shall have an initial term of ten (10) years, commencing upon the Effective Date set forth below, and shall be automatically renewed for successive ten (10)-year renewal terms unless (i) at least thirty (30) calendar days prior to the end of the initial term or any renewal term, Mastercard notifies Applicant in writing that this License Agreement will not be renewed or (ii) this License Agreement has otherwise been terminated pursuant to its provisions or the Standards. Subject to such other License and/or Membership termination provisions set forth in this License Agreement or in the Standards that provide for termination either without notice or upon shorter notice, Mastercard shall have the right, upon no fewer than thirty (30) calendar days advance written notice to Applicant, to terminate this License Agreement at any time without cause. Applicant shall cease using the Marks upon termination of the License Agreement.

Representations and Warranties. Applicant hereby represents and warrants that the information provided in Applicant’s application for this license is true and complete. Should circumstances change that would affect Applicant’s continued eligibility to be a licensee, as specified in the Standards, Applicant agrees to immediately notify Mastercard in writing. Applicant shall immediately notify Mastercard in writing of any changes in the completeness or accuracy of such information or of a change in circumstances that would or could affect Applicant’s continued eligibility to be a licensee in accordance with the eligibility criteria set forth in the Standards. Applicant further represents and warrants that the execution and delivery of this License Agreement and the performance by Applicant of the activities licensed hereunder will not violate any law, statute, ordinance, regulation, judgment, writ, injunction, rule, decree, order, or any other restriction or requirement applicable to Applicant. Licensee further represents and warrants that it has, and shall maintain, any and all government licenses and permits that are necessary for Applicant to be authorized to engage in the activities to be performed pursuant to this License Agreement.

Compliance with Law. For so long as this license is in effect, Mastercard and Applicant shall comply with all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements relating in any way to the privacy, confidentiality or security of personal data, including, without limitation: the EU Data Directive 95/46/EC; and the requirements of the Gramm-Leach-Bliley Act and its implementing regulations (15 U.S.C. § 6801 et seq.) (collectively, the “GLB Act”), which shall include, without limitation, the maintenance of a comprehensive information security program, that is designed to insure the security and confidentiality of non-public information about cardholders, applicants, or other customers by, among other things: (i) protecting against any anticipated threats or hazards to the security or integrity of such information; (ii) protecting against unauthorized access to or use of such information; (iii) detecting, preventing and responding to, in a prompt manner, attacks, intrusions or other system failures; (iv) ensure the proper disposal of such information; and (v) regularly testing or otherwise monitoring the effectiveness of such information safeguards.

 

Mastercard License Agreement		Page 2 of 3		Revised: November 2016 ©2016 Mastercard

 

Notice of infringement. As soon as Applicant acquires any knowledge of (i) any infringement of any Mark, (ii) any conflicting claim of third parties with respect to a Mark, or (iii) any failure of any other licensee to adhere to the Standards, Applicant shall so notify Mastercard in writing. Applicant agrees to give all lawful and reasonable aid requested by Mastercard or any other Exclusive Owner in connection with efforts to enforce, preserve and defend a Mark. All litigation carried on by Applicant at Mastercard’s request shall be subject to Mastercard’s control and will be at Mastercard’s expense.

Assignment and Sublicense. Applicant agrees that Mastercard may assign or sublicense this license to any Mastercard direct or indirect subsidiary or affiliate. Applicant may not sell, sublicense, assign or otherwise transfer any of its rights under this license, whether by sale, consolidation, merger, amalgamation, operation of law or otherwise, without Mastercard’s express written consent. This license shall be binding on Applicant’s successors and assigns.

Governing Law, Payment of Taxes. All questions with respect to the interpretation, effect, and validity of this License Agreement, and the rights and obligations of the parties, shall be decided under the laws of the State of New York, without regard to its choice of laws provisions. Applicant consents to personal jurisdiction in the courts of the State of New York for all disputes arising out of this License Agreement, including but not limited to enforcement of the License Agreement. Notwithstanding the foregoing, if Applicant is an entity in the Europe Region (as defined in the Standards) then this license shall be governed in all respects and construed in accordance with the laws of England and Wales without regard to conflict of law provisions. Applicant agrees to pay all taxes that might be charged by any country or other jurisdiction in which Applicant conducts activities authorized by this License Agreement against any of the amounts due under the Standards, and such payments shall be made to Mastercard by Applicant without deduction for any such taxes.

Certification. Applicant certifies that it meets all requirements to be a licensee for each Mark set forth on the attached Summary of Licenses Granted, and is fully authorized and empowered to perform all of the functions it has elected to perform, and that the application for this license has been duly authorized by appropriate corporate action.

This License Agreement is the entire agreement between Applicant and Mastercard pertaining to the subject matter hereof and supersedes any prior agreements or representations, whether oral or written.

Applicant further certifies that Applicant is chartered as Corporation [type of institution] under the laws of Mexico [country].

 

Legal Name of Applicant: Nu Bn Mexico S.A de C.V

The signing officer must be duly authorized to execute the application

 

Officer Name:		David Velez Osorno				Officer Title:		Legal Representative
Officer Signature:		/s/ David Velez Osorno				Date:		01/03/2019
Mastercard Entity:		MASTERCARD INTERNATIONAL INCORPORATED
Mastercard Signature:		/s/ Ajay Banga				Effective Date:		01/03/2019
Title:		PRESIDENT & CEO

 

Mastercard License Agreement		Page 3 of 3		Revised: November 2016 ©2016 Mastercard

 

 

Exhibit 10.7

Daniel Paula

Business Leader

Franchise Development

 

MasterCard Avenida Nações Unidas 14171 | 20th floor - Crystal Tower São Paulo - SP | 04534-011

tel +55 11 5508-0359

mobile +55 11 94374-9113

[email protected]

August 19, 2019

Rafael Ignacio Soto

General Manager

Nu Argentina SA

Tucumán 1, piso 4 – Buenos Aires

Argentina

Dear Mr. Soto

It is a pleasure to inform you that Nu Argentina SA application for Mastercard principal participation has been approved, effective 08/19/2019. Enclosed is a fully executed Mastercard License Agreement and Schedule A which reflects the brands for which a license has been granted and the type of participation for each.

The following ICA and BINs have been reserved for Nu Argentina SA for testing purposes only:

ICA 23489

514113 – MPL - Platinum MasterCard

514577 - MCS - Mastercard Standard

556899 - MCG - Gold Mastercard

Please note the following identification number that has been assigned for the Cirrus brand license(s):

ID: 82635 (Cirrus)

You must contact Customer Implementation Services (CIS) to coordinate the implementation and activation of this ICA in the MasterCard production environment. CIS can proceed with the formal implementation process, pending receipt of all other required and/or optional forms. To determine which additional forms are required, and for further assistance, you may contact CIS via email or fax as follows:

[email protected]

Nu Argentina SA will be fully responsible for all transactions and billing affected under these assignments and obligated to activate their ICA/BINs within a year of assignment. A billing account must first be established and appropriately funded in order to initiate the activation process.

 

August 19, 2019

Page 2 of 2

 

To establish a billing account, the Billing Services Notification and Summary Reports Request forms must be completed. If you have already submitted these forms, then no further action is required. If you have not completed the forms, the forms have been attached to this letter. Please complete and submit the forms to CIS within 30 days. Billing and settlement will begin as soon as the ICA has been assigned in the Mastercard systems.

To assist in your understanding of MasterCard rules, policies, products and services, please visit our website at www.mastercardconnect.com.

We look forward to working with you and wish you success with all of your MasterCard programs.

Sincerely,

/s/ Daniel Paula

Daniel Paula

Franchise Development

 

cc:	Vivian Baker – Vice President, Mastercard Miami Office
	Rodrigo Rodrigues – Account Manager

 

LICENSE AGREEMENT

THIS LICENSE AGREEMENT is between Mastercard International Incorporated or its undersigned affiliate (“Mastercard”) and the undersigned entity (“Applicant”).

Marks. Applicant acknowledges that Mastercard owns, manages, is licensee of, or otherwise controls all rights, title and interest to the trade names, trademarks, service marks and logotypes (the “Designations”) set forth below. This License Agreement governs the use of the Designations identified below (each a “Mark”) and other trade names, trademarks, service marks and logotypes identified from time to time in the Standards (defined below) or policies of Mastercard (each, an “Other Identified Mark” and, together with each Mark, the “Marks”). “Mastercard” shall mean and include its parent, subsidiaries and affiliates. Capitalized terms used in this license agreement shall have the meanings ascribed to them in the Standards, unless defined herein.

 

•

Interlocking Circles Device. Mastercard owns all rights, title and interest to the trademark, service mark and logotype known as the Interlocking Circles Device and all variations thereof, and United States and worldwide registrations for such mark (the “Interlocking Circles Device”).

 

•

Mastercard Marks. Mastercard owns all right, title and interest in and to the trademark, trade name and service mark “Mastercard” and marks utilizing that designation, including Mastercard Electronic and Mastercard Cash, and United States and worldwide registrations for such marks (the “Mastercard Marks”).

 

•

Cirrus Marks. Mastercard owns all right, title and interest in and to the trademark, trade name and service mark “Cirrus” and marks utilizing that designation and United States and worldwide registrations for such marks (the “Cirrus Marks”), to use and sublicense the use of the Cirrus Marks.

 

•

Maestro Marks. Mastercard owns all right, title and interest in and to the trademark, trade name and service mark “Maestro” and marks utilizing that designation and United States and worldwide registrations for such marks (the “Maestro Marks”), to use and to sublicense the use of the Maestro Marks.

Ownership of the Marks. Applicant acknowledges that:

(a) Mastercard is the Exclusive Owner (defined below) of all Mastercard Marks, the Cirrus Marks the Maestro Marks and the Interlocking Circles Device; and

(b) the applicable Exclusive Owner is the owner of any Other Identified Mark.

Applicant acknowledges the validity of the Marks and agrees to never contest such ownership, or in any way dispute the validity of any of the Marks or registrations for the Marks. Applicant agrees that, if any right has accrued or may accrue to Licensee in any of the Marks by operation of law, such right, upon termination of this License Agreement, shall revert to the owner of such Mark(s) as indicated in subsections (a), or (b), above (each such owner, as applicable, an “Exclusive Owner”). Applicant further agrees to cooperate with the Exclusive Owner to perfect such Exclusive Owner’s title in any Mark(s) by written assignment of any rights which may accrue and in any other manner deemed necessary or appropriate by said Exclusive Owner. Applicant agrees that all documents, instruments, papers, letters, advertisements, and cards bearing any of the Marks shall be marked by Applicant with any notices of such Exclusive Owner’s registrations that may be provided by law to preserve the Exclusive Owner’s rights in the Mark(s) or that may be required by Mastercard from time to time. Applicant agrees not to obtain or attempt to obtain, and agrees not to aid any third party in obtaining or attempting to obtain, any right in any trademark, trade name, service mark, logotype or other device, designation, internet domain name, or intellectual property right that is confusingly similar to or employs any part of any Mark including, without limitation, the word “Master” or “Maestro” or any word containing the word “Master” or “Maestro” as a prefix or suffix, or “Master’’ or “Maestro” used in connection with any service offered by Applicant; and, upon request by Mastercard, Applicant agrees to assign, by instruments satisfactory in form and substance to Mastercard’s counsel and without royalty or other payment of any kind, any and all of such rights that Licensee may obtain or may have obtained. Applicant agrees to never take any action, or permit or fail to take any action that may injure, harm or dilute the distinctiveness or goodwill in and to any of the Marks. Applicant further acknowledges that any use of any Mark inures to the benefit of the Exclusive Owner of that Mark.

 

Mastercard License Agreement		Page 1 of 3		Revised: March 2018
				©2018 Mastercard

 

Grant of License. Applicant accepts (as granted), a non-exclusive license to use the Marks identified in the Summary of Licenses Granted (attached to this License Agreement and incorporated herein) in the geographic areas set forth therein, solely in connection with the Program(s). The term “Program” is defined in the Standards applicable to each Mark referenced in the Summary of Licenses Granted that Applicant operates in a geographic area. Upon execution by Mastercard, this License Agreement is effective as of the Effective Date set forth below and shall remain in effect until terminated in accordance with the Standards. Mastercard may, from time to time, modify the Summary of Licenses Granted to add a Mark, delete a Mark, change the type(s) of license participation, or change the type(s) of activity, and geographic locations that apply to Applicant for one or more Marks. Upon being granted a license to use any one of the Mastercard, Maestro or Cirrus Marks, Applicant shall also be granted a limited license to acquire Mastercard, Maestro and Cirrus transactions at ATMs operated or sponsored by Applicant in accordance with the applicable Standards and to display the Mastercard, Maestro and Cirrus Marks at such ATMs.

Standards. At all times, Applicant shall observe the Amended and Restated Certificate of Incorporation, Bylaws, Rules, and policies, and the operating regulations and procedures of Mastercard, including but not limited to any manual, guide and/or bulletin, as may be amended from time to time (the “Standards”). The Standards are incorporated herein by reference and made a part of this License Agreement. Mastercard shall have the right to inspect samples of all advertising and marketing materials bearing the Marks to insure compliance with the Standards, and Applicant shall promptly correct any deficiency.

Term. Subject to the termination provisions set forth in this License Agreement and in the Standards, this License Agreement shall have an initial term of ten (10) years, commencing upon the Effective Date set forth below, and shall be automatically renewed for successive ten (10)-year renewal terms unless (i) at least thirty (30) calendar days prior to the end of the initial term or any renewal term, Mastercard notifies Applicant in writing that this License Agreement will not be renewed or (ii) this License Agreement has otherwise been terminated pursuant to its provisions or the Standards. Subject to such other License and/or Membership termination provisions set forth in this License Agreement or in the Standards that provide for termination either without notice or upon shorter notice, Mastercard shall have the right, upon no fewer than thirty (30) calendar days advance written notice to Applicant, to terminate this License Agreement at any time without cause. Applicant shall cease using the Marks upon termination of the License Agreement.

Representations and Warranties. Applicant hereby represents and warrants that the information provided in Applicant’s application for this license is true and complete. Should circumstances change that would affect Applicant’s continued eligibility to be a licensee, as specified in the Standards, Applicant agrees to immediately notify Mastercard in writing. Applicant shall immediately notify Mastercard in writing of any changes in the completeness or accuracy of such information or of a change in circumstances that would or could affect Applicant’s continued eligibility to be a licensee in accordance with the eligibility criteria set forth in the Standards. Applicant further represents and warrants that the execution and delivery of this License Agreement and the performance by Applicant of the activities licensed hereunder will not violate any law, statute, ordinance, regulation, judgment, writ, injunction, rule, decree, order, or any other restriction or requirement applicable to Applicant. Licensee further represents and warrants that it has, and shall maintain, any and all government licenses and permits that are necessary for Applicant to be authorized to engage in the activities to be performed pursuant to this License Agreement.

Compliance with Law. For so long as this license is in effect, Mastercard and Applicant shall comply with all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements relating in any way to the privacy, confidentiality or security of personal data, including, without limitation: the EU/2016/679 General Data Protection Regulation; and the requirements of the Gramm-Leach-Bliley Act and its implementing regulations (15 U.S.C. § 6801 et seq.) (collectively, the “GLB Act”), which shall include, without limitation, the maintenance of a comprehensive information security program, that is designed to insure the security and confidentiality of non-public information about cardholders, applicants, or other customers by, among other things: (i) protecting against any anticipated threats or hazards to the security or integrity of such information; (ii) protecting against unauthorized access to or use of such information; (iii) detecting, preventing and responding to, in a prompt manner, attacks, intrusions or other system failures; (iv) ensure the proper disposal of such information; and (v) regularly testing or otherwise monitoring the effectiveness of such information safeguards.

 

Mastercard License Agreement		Page 2 of 3		Revised: March 2018
				©2018 Mastercard

 

Notice of infringement. As soon as Applicant acquires any knowledge of (i) any infringement of any Mark, (ii) any conflicting claim of third parties with respect to a Mark, or (iii) any failure of any other licensee to adhere to the Standards, Applicant shall so notify Mastercard in writing. Applicant agrees to give all lawful and reasonable aid requested by Mastercard or any other Exclusive Owner in connection with efforts to enforce, preserve and defend a Mark. All litigation carried on by Applicant at Mastercard’s request shall be subject to Mastercard’s control and will be at Mastercard’s expense.

Assignment and Sublicense. Applicant agrees that Mastercard may assign or sublicense this license to any Mastercard direct or indirect subsidiary or affiliate. Applicant may not sell, sublicense, assign or otherwise transfer any of its rights under this license, whether by sale, consolidation, merger, amalgamation, operation of law or otherwise, without Mastercard’s express written consent. This license shall be binding on Applicant’s successors and assigns.

Governing Law, Payment of Taxes. All questions with respect to the interpretation, effect, and validity of this License Agreement, and the rights and obligations of the parties, shall be decided under the laws of the State of New York, without regard to its choice of laws provisions. Applicant consents to personal jurisdiction in the courts of the State of New York for all disputes arising out of this License Agreement, including but not limited to enforcement of the License Agreement. Notwithstanding the foregoing, if Applicant is an entity in the Europe Region (as defined in the Standards) then this license shall be governed in all respects and construed in accordance with the laws of England and Wales without regard to conflict of law provisions. Applicant agrees to pay all taxes that might be charged by any country or other jurisdiction in which Applicant conducts activities authorized by this License Agreement against any of the amounts due under the Standards, and such payments shall be made to Mastercard by Applicant without deduction for any such taxes.

Certification. Applicant certifies that it meets all requirements to be a licensee for each Mark set forth on the attached Summary of Licenses Granted, and is fully authorized and empowered to perform all of the functions it has elected to perform, and that the application for this license has been duly authorized by appropriate corporate action.

This License Agreement is the entire agreement between Applicant and Mastercard pertaining to the subject matter hereof and supersedes any prior agreements or representations, whether oral or written.

Applicant further certifies that Applicant is chartered as Nu Argentina S.A. [type of institution] under the laws of Argentina [country].

 

Legal Name of Applicant:		Nu Argentina S.A.
The signing officer must be duly authorized to execute the application
Officer Name:		Rafael Ignacio Soto				Officer Title:		General Manager
Officer Signature:		/s/ Rafael Ignacio Soto				Date:		June 12th, 2019
Mastercard Entity:		Peter Goldenberg
Mastercard Signature:		/s/ Peter Goldenberg				Effective Date:		08/19/2019
Title:		Senior Vice President - Franchise

 

Mastercard License Agreement		Page 3 of 3		Revised: March 2018
				©2018 Mastercard

 

SCHEDULE A TO MASTERCARD LICENSE AGREEMENT

 

LICENSEE:		Nu Argentina SA
ADDRESS:		Tucumán 1, piso 4 – Buenos Aires
		Argentina

 

Authorized Marks		Type of membership or other type of participation and sponsor, if applicable		Type of activity		Geographic     locations		Date after which Licensee is authorized to use this Authorized Mark
		• Principal		• Issuing		Argentina		August 19, 2019
		• Principal		• Issuing		Argentina		August 19, 2019

Date: August 19, 2019

/s/ Daniel Paula

Daniel Paula

Director

Franchise Development

 

City of Buenos Aires, August 19, 2019

Sirs

MASTERCARD CONO SUR S.R.L.

Olga Cossettini 771, 2° floor

City of Buenos Aires Att. Daniel Paula

Present

Re: Offer of Services.

Our best regards:

Nu Argentina S.A. (the “CLIENT”), domiciled in Buenos Aires, in accordance with the conversations held, we are writing to you, in order to formulate this request for the provision of services which, if accepted, shall be governed by the terms and conditions (the “Terms and Conditions”) described in Attachment I (the “Offer”).

For the purposes of the Offer, Mastercard Cono Sur S.R.L. (“MASTERCARD CONO SUR”) and the CUSTOMER shall be collectively referred to as the “Parties”.

In case MASTERCARD CONO SUR decides to accept the Offer, the obligations and rights of the Parties shall be strictly those resulting from the Terms and Conditions.

The Offer is irrevocable for 60 (sixty) days from the date hereof and shall be deemed accepted in its entirety when MASTERCARD CONO SUR sends the first invoice to the CUSTOMER for Services (as defined in the Offer).

Sincerely,

By: Rafael Soto

Position: General Manager

Receipt of this document does not imply conformity with its contents.

Received by:

Date:

 

ATTACHMENT I

CLAUSE ONE - OBJECT

1.1. The Parties agree that MASTERCARD CONO SUR will provide to the CUSTOMER, by itself or through related companies (indistinctly and/or jointly with MASTERCARD CONO SUR) the services described below (the “Mastercard Services”): i) the services necessary for the CUSTOMER to issue credit, debit and/or payment cards under the Mastercard Brands (the “Mastercard Services”). (i) the services necessary for the CUSTOMER to issue credit, debit and/or payment cards of the Mastercard Brands (as defined below), and offer them to its customers, in accordance with the provisions of: (a) the Mastercard License Agreement dated July 12, 2019 between CUSTOMER and Mastercard International Incorporated (“Mastercard International”) (the “License Agreement”), and (b) the Mastercard Rules of Mastercard International (the “Mastercard Rules”); and (ii) Brand Development and Marketing services.

1.2. The CUSTOMER declares to know and to have received from MASTERCARD CONO SUR the “Mastercard Consolidated Billing System Manual” and the Mastercard Rules, serving herein as sufficient proof.

CLAUSE TWO - ADDITIONAL SERVICES

2.1. The CUSTOMER may request the provision of additional services to the Mastercard Services (the “Additional Services” and jointly with the Mastercard Services, the “Services”), provided that these services are related to the object of the present Terms and Conditions and are approved by MASTERCARD CONO SUR, at its sole discretion.

2.2. The provision of Additional Services must be agreed in writing between the Parties and, if approved by MASTERCARD CONO SUR, the obligation to provide the Additional Services will come into effect within 30 (thirty) calendar days from its approval, unless otherwise agreed by the Parties.

CLAUSE THREE - FEES FOR THE RENDERING OF THE SERVICES, MODIFICATIONS AND READJUSTMENTS

3.1. For the rendering of the Services, the CUSTOMER shall pay to MASTERCARD CONO SUR, the fees for services that MASTERCARD CONO SUR establishes by the “Mastercard Consolidated Billing System Manual” or by any other means, applicable to all issuers and acquirers in Argentina of credit cards of the Mastercard Brands. The “Mastercard Marks” are defined as the “MASTERCARD®”, “MASTERCARD ELECTRONICT”, “MASTERCARD MAESTRO™”, “MAESTRO®” and/or “CIRRUS®” marks, in their various versions.

The Parties acknowledge and agree that: (i) the products, programs, services and prices defined in the “MastercardConsolidated Billing System Manual” and in the Mastercard Rules, and (ii) the Services and their prices, may be modified at any time at the discretion of MASTERCARD CONO SUR, taking into account changes in international costs, the decisions of Mastercard International’s management, or by any other competent body of Mastercard International (the “Modifications”). The Parties agree that the Modifications shall be deemed to be notified to the CUSTOMER with their sole publication in the Mastercard International Newsletter or its affiliates, and shall become effective and shall apply to the CUSTOMER after 30 (thirty) calendar days from their publication in the Newsletter or their notification to the CUSTOMER in writing, provided that the CUSTOMER has not objected to them during that period. In case the CUSTOMER does not accept the Modifications, the provisions of Clause 5.5 hereof shall apply.

 

2

 

3.3. The Parties further agree that the values and other terms and conditions of the “Mastercard Consolidated Billing System Manual” and of the Services may be modified in the event of changes in the current tax legislation in Argentina or in the United States of America that cause the creation, extension or reduction of taxes to which MASTERCARD CONO SUR is subject as a consequence of the rendering of the Services and that affect MASTERCARD CONO SUR’s costs with respect to the Services. In this case, the value of the readjustment or reduction will be transferred to the CUSTOMER and will be charged or applied in the first invoice following such tax modification.

3.4. Exceptionally, under certain conditions, and at its sole discretion, MASTERCARD CONO SUR may temporarily offer promotional rates for the Services.

3.5. The amounts owed by the CUSTOMER to MASTERCARD CONO SUR for the provision of the Services and any other amount owed under these Terms and Conditions, will be charged (plus the corresponding Value Added Tax) by means of invoices issued weekly by MASTERCARD CONO SUR to the CUSTOMER, due on the 10th (tenth) business day after receipt of the respective invoice. Together with the weekly invoices, MASTERCARD CONO SUR will send to the CUSTOMER a weekly report, containing the description of the Services rendered in the corresponding week and their respective details and values.

3.6. In the event that the CUSTOMER does not make full payment of the amounts or prices set forth in this Clause Three, in the manner and under the conditions established, the CUSTOMER shall be liable for the applicable penalties and liabilities detailed in these Terms and Conditions and in the “Mastercard Consolidated Billing System Manual”, except when the lack of payment is due to the failure of MASTERCARD CONO SUR and/or Mastercard International to make the debit as set forth in Clause 4.3 herein.

3.7. The Parties agree that the debits of the amounts of the invoices for Services due under the present Terms and Conditions, which MASTERCARD CONO SUR makes through the COELSA system, shall be net of the tax withholdings that, as withholding agent, the CUSTOMER must make in respect of national, provincial or municipal taxes. Likewise, the CUSTOMER undertakes to: (i) pay these withholdings to the tax authorities in due time and form, and (ii) make available to MASTERCARD CONO SUR the corresponding withholding certificates, within 72 hours after the debits of the Services giving rise to the withholdings have occurred.

 

3

 

3.8. In the event that one of the Parties makes a claim to the other Party for errors or differences in relation to any debit made or invoice issued in accordance with these Terms and Conditions, the Parties, as the case may be, undertake to use their best efforts to analyze the claim and, if applicable, to reimburse the corresponding amounts within 15 (fifteen) calendar days from the date of receipt in writing of the claim.

3.9. The CUSTOMER undertakes to deliver every month to MASTERCARD CONO SUR, together with the corresponding payment, the withholding certificates for the following taxes: value added tax, single social security system, income tax and gross income.

CLAUSE FOUR - FORM OF PAYMENT

4.1. Pending the implementation of the collection system via COELSA and until further notice from MASTERCARD CONO SUR, as set forth in Clause 4.2 below, all payments to be made under the Services shall be made by bank transfer or deposit to [***] below, all payments to be made under the Services shall be made via bank transfer or deposit to [***] owned by Mastercard Cono Sur S.R.L. with the Citibank N.A. Branch established in the Republic of Argentina, established in the Republic of Argentina.

4.2. The CUSTOMER authorizes and instructs MASTERCARD CONO SUR to debit, on each payment date, from the account with BCRA Number 016 (Citibank Argentina account) and through the settlement system of Compensadora Electronica S.A. (“COELSA”), to debit the account of Mastercard Cono Sur S.R.L. (“Mastercard Cono Sur S.R.L.”), through the settlement system of Compensadora Electrónica S.A. (“COELSA”). (“COELSA”), all amounts owed for Services. Likewise, and for the purpose of making effective the payment of the Services, the CUSTOMER undertakes to maintain sufficient funds in its settlement account with the BCRA, affected to COELSA’s system, to meet the debits agreed in this Clause and to provide the settlement guarantee set forth in Point II.4.1) of the BCRA’s regulations on the National Payment System (SINAP).

4.3. Notwithstanding the provisions of Clauses 4.1. and 4.2., where MASTERCARD CONO SUR accepts that the Services are paid in Argentine pesos at the selling exchange rate for U.S. dollars banknotes, published by the National Bank of Argentina on the business day prior to the date of payment; subject to the suspensive condition that the BCRA modifies the regulations in force so that the CUSTOMER has access to the Single and Free Exchange Market of Argentina to acquire U.S. dollars, and/or transfer them abroad for the payment of Services to MASTERCARD CONO SUR, the CUSTOMER irrevocably authorizes Mastercard International Inc, acting on behalf of MASTERCARD CONO SUR, to debit from the bank account that the CUSTOMER maintains abroad with Silicon Valley Bank, [***], any amount owed by the CUSTOMER to MASTERCARD CONO SUR for the Services or otherwise under these Terms and Conditions.

 

4

 

CLAUSE FIVE - TERMS AND CONDITIONS AND TERMINATION

5.1. The present Terms and Conditions shall remain in force for a term of 5 (five) years, as from their acceptance by the CUSTOMER and shall be automatically renewed for equal periods and indefinitely, unless otherwise decided by any of the Parties, which shall be notified in a reliable manner to the other Party 90 (ninety) days prior to the expiration of the period in question.

5.2. In case the CUSTOMER fails to comply with any of the payments for the provision of the Services or any other amount due under the Terms and Conditions or fails to comply with any of the obligations assumed under the Terms and Conditions and does not remedy the breach within 15 (fifteen) calendar days of notice to that effect; MASTERCARD CONO SUR shall have the right to unilaterally and immediately terminate these Terms and Conditions, and the CUSTOMER shall not be entitled to any indemnity or claim whatsoever against MASTERCARD CONO SUR and/or its affiliates.

5.3. In the event that MASTERCARD CONO SUR breaches any of the obligations assumed under these Terms and Conditions and does not remedy its breach within 30 (thirty) calendar days of notification by the CUSTOMER, the CUSTOMER shall have the right to terminate these Terms and Conditions by sending a notice without MASTERCARD CONO SUR being entitled to any indemnity or claim against the CUSTOMER.

5.4. These Terms and Conditions shall be terminated without any right of indemnity for the CUSTOMER, in the event of termination of the License Agreement, for any reason whatsoever, or in the event that the CUSTOMER ceases to be a member of Mastercard International, for any reason whatsoever.

5.5. In the event that the CUSTOMER does not accept the Modifications, as established in Clause 3.2 hereof, MASTERCARD CONO SUR shall have the right to terminate these Terms and Conditions by giving the CUSTOMER not less than 90 (ninety) calendar days’ notice (during which period MASTERCARD CONO SUR shall be obliged to continue providing the Services under the agreed conditions) without the termination in such circumstances generating liability for any of the Parties. In no event shall MASTERCARD CONO SUR be liable or obliged to continue to provide the Services under the conditions prior to the Modifications in question, after the aforementioned notice period has elapsed.

5.6. Whatever the cause for termination and/or termination of these Terms and Conditions, MASTERCARD CONO SUR undertakes to provide, at no additional cost to the CUSTOMER, all cooperation and information reasonably requested by the CUSTOMER to ensure an orderly transition and an adequate migration process to a new service provider, in order to avoid interruptions or deterioration of the service, loss of data or confidential information of the CUSTOMER or its customers, as well as any other loss, paralyzation, hindrance or interruption in the provision of the Services.

 

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CLAUSE SIX - CONFIDENTIALITY

6.1. The Parties shall at all times keep confidential and secret all information and documents relating to these Terms and Conditions and shall not disclose them. “Confidential Information” means the terms of these Terms and Conditions, the detailed information contained in these Terms and Conditions, the detailed information contained in these Terms and Conditions and the information contained in these Terms and Conditions. the information detailed in the “Mastercard Consolidated Billing System Manual” and all information (oral, written and in any format) disclosed to or discovered by either Party, during the course of negotiations or during the course of a subsequent contractual relationship (including, without limitation, business plans, ideas, marketing concepts, financial information and projects); noting, however, that Confidential Information does not include information that is or becomes publicly known without any violation of the Law or these Terms and Conditions.

6.2. Neither Party may directly or indirectly, on its own behalf or in the name or on behalf of third parties, either during the negotiation period and/or thereafter and even in the event of abandonment of the negotiations or termination of this contractual relationship, (i) sell, offer to sell, transfer, disclose, publish or otherwise make the Confidential Information available to third parties, (ii) use the Confidential Information for purposes other than those specific purposes for which it was disclosed, (iii) use the Confidential Information for promotional or marketing purposes, or take advantage of it in any way to obtain a benefit from it, or (iv) modify, reproduce or copy the Confidential Information in any way, except as provided in these Terms and Conditions or as expressly authorized by the other Party.

6.3. The right of ownership over the Confidential Information and its supports shall at all times remain with the Party that disclosed and/or generated it, and all material elements containing or constituting Confidential Information provided to a Party by the other Party shall be returned to the owning Party upon request of the latter within 15 (fifteen) calendar days, together with all existing copies thereof.

6.4. The Parties agree that unauthorized disclosure of Confidential Information received from the other Party may cause serious damage to the other Party. Consequently, each Party agrees that the other Party shall have the right to take the necessary measures to obtain the cessation of the conduct that violates the provisions of this Clause and the reparation of its consequences, damages and prejudices, including, without limitation, the right to request precautionary measures, measures of anticipated proof, or any other measure or action that may be pertinent.

6.5. If by judicial request either Party is required to disclose Confidential Information of the other Party, the requested Party shall immediately notify the other of such request, so that the owner of the requested information may arbitrate the necessary measures that best provide for the defense of its rights and interests. In all cases, the disclosure of such Confidential Information shall only be provided to the judicial authority that requested it by requesting such judicial authority to keep the file confidential.

 

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SEVENTH CLAUSE - GENERAL PROVISIONS

7.1. Applicable Law; Jurisdiction. These Terms and Conditions shall be governed by and construed in accordance with the laws of the Republic of Argentina, excluding conflict of laws rules. Any dispute arising between the Parties in connection herewith, its existence, validity, interpretation or performance shall be submitted to the ordinary commercial courts of the City of Buenos Aires.

7.2. Binding Nature. These Terms and Conditions shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns with respect to the subject matter hereof, and may not be modified, revoked, or amended except expressly in writing. The Parties irrevocably agree not to assert or rely on any oral modification of these Terms and Conditions.

7.3. No Waiver. The failure of either Party to assert at any time any provision or term of these Terms and Conditions, or any right with respect thereto, or the exercise or failure of either Party to exercise any right or any election contemplated hereby, shall not be deemed a waiver of such provision, term, right or election or in any way affect the validity of these Terms and Conditions.

7.4. Invalidity and Non-Enforceability of Provisions. If any provision of these Terms and Conditions, or any part thereof, is held to be invalid or unenforceable under any applicable law or rule of law, it shall be deemed omitted from these Terms and Conditions in relevant part and the remaining provisions of these Terms and Conditions shall remain in full force and effect.

7.5. Termination. The CUSTOMER may not assign these Terms and Conditions or any of the rights granted or obligations imposed herein to any natural or legal person without the prior written consent of MASTERCARD CONO SUR. MASTERCARD CONO SUR may assign these Terms and Conditions and its rights and obligations to any of its related companies, without the consent of the CLIENT.

 

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Exhibit 10.8

The redacted information has been excluded because it is both (i) not material and (ii) of the type that

the registrant customarily and actually treats as private or confidential

INVESTMENT AGREEMENT AND OTHER COVENANTS

 

entered between, on one side,

 

CARLOS AUGUSTO LUZ AVIAN		JOSÉ MENDES DE FARIAS
MARCIO MARTINS CARDOSO		AMERSON GALHARDO MAGALHÃES
PAULO AVIAN		ATLAS INVESTIMENTOS FUNDO DE INVESTIMENTO EM PARTICIPAÇÕES MULTIESTRATÉGIA

and, on the other side,

NU FINANCEIRA S.A. - SOCIEDADE DE CRÉDITO, FINANCIAMENTO E INVESTIMENTO

NU HOLDINGS LTD.

and, in the capacity of Guarantor of the Investor’s obligations,

NU PAGAMENTOS S.A.

and also, in the capacity of Intervening Consenting Parties,

EASYNVEST HOLDING FINANCEIRA S.A.

EASYNVEST TÍTULO CORRETORA DE VALORES S.A.

EASYNVEST PARTICIPAÇÕES S.A.

EASYNVEST CORRETORA DE SEGUROS LTDA.

EASYNVEST GESTÃO DE RECURSOS LTDA.

September 10, 2020

 

INVESTMENT AGREEMENT AND OTHER COVENANTS

This Investment Agreement and Other Covenants (“Agreement”) is entered into on September 10, 2020 (“Signature Date”‘) between the following parties (individually, “Party” and jointly “Parties”):

I.    On one side (referred to individually as “Easynvest Shareholder” and, jointly, as “Easynvest Shareholders”):

1.1    CARLOS AUGUSTO LUZ AVIAN, [***] (“Carlos Avian”);

1.2    JOSÉ MENDES DE FARIAS, [***] (“José Mendes”);

1.3    MÁRCIO MARTINS CARDOSO, [***] (“Mareio”);

1.4    AMERSON GALHARDO MAGALHÃES, [***] (“Amerson”);

1.5    PAULO AVIAN, [***] (“Paulo”);

1.6    ATLAS INVESTIMENTOS FUNDO DE INVESTIMENTO EM PARTICIPAÇÕES MULTIESTRATÉGIA, equity investment fund, enrolled with CNPJ/ME under No. 23.834.911/0001-10, represented by its administrator, BRL TRUST INVESTIMENTOS LTDA., limited-liability company, headquartered in the City of São Paulo, State of São Paulo, at Rua Iguatemi, No. 151, 19th floor, Itaim-Bibi, Zip Code 01451-011, enrolled with CNPJ/ME under No. 23.025.053/0001-62, herein represented by its undersigned legal representatives (“Atlas”).

II.    On the other side:

2.1    NU FINANCEIRA S.A. - SOCIEDADE DE CRÉDITO, FINANCIAMENTO E INVESTIMENTO, corporation, headquartered in the city of São Paulo, State of São Paulo, at Rua Capote Valente, No. 120, 3rd and 4th floors, Pinheiros, Zip Code 05409-000, enrolled with CNPJ/ME under No. 30.680.829/0001-43, herein represented pursuant to its Bylaws (“Nu Financeira” or “Investor”).

2.2    NU HOLDINGS LTD., a corporation headquartered at Cayman Islands, at Campbells, Floor 4, Willow House, Cricket Square, Grand Cayman, KY1-9010, enrolled with CNPJ/ME under No. 24.410.913/0001-44, herein represented pursuant to its organizational documents (“Nu Holdings”).

III.    And, in the capacity of Guarantor of the Investor’s obligations and Nu Holdings:

3.1    NU PAGAMENTOS S.A., corporation, headquartered in the city of São Paulo, State of São Paulo, at Rua Capote Valente, No. 39, Pinheiros, Zip Code 05409-000, enrolled with CNPJ/ME under No. 18.236.120/0001-58, herein represented pursuant to its Bylaws (“Nu Pagamentos” or “Guarantor”).

IV.    And also, in the capacity of Intervening Consenting Parties (hereinafter jointly referred to as “Intervening Consenting Party” and, jointly, as “Intervening Consenting Parties”):

4.1.    EASYNVEST HOLDING FINANCEIRA S.A., a corporation, duly incorporated and validly existing under the laws of Brazil headquartered in the City of São Paulo, State of São Paulo, at Av. Brigadeiro Faria Lima, No. 3,311, 9th floor, suite D, Itaim-Bibi, Zip Code 04538-133, enrolled with CNPJ/ME under No. 36.023.120/0001-51, herein represented pursuant to its bylaws (“Easvnvest Holding Financeira”);

4.2.    EASYNVEST TÍTULO CORRETORA DE VALORES S.A., a corporation, duly incorporated and validly existing under the laws of Brazil, headquartered in the City of São Paulo, State of São Paulo, at Av. Doutor Cardoso de Mello, No. 1,608, 4th, 9th, 12th and 14th floors, Vila Olímpia, Zip Code 04548- 005, enrolled with CNPJ/ME under No. 62.169.875/0001-79, herein represented pursuant to its bylaws (“Broker”);

 

4.3.    EASYNVEST PARTICIPAÇÕES S.A., a corporation duly incorporated and validly existing under the laws of Brazil, headquartered in the City of São Paulo, State of São Paulo, at Av. Doutor Cardoso de Mello, No. 1,608, 9th floor, Vila Olímpia, enrolled with CNPJ/ME under No. 35.857.749/0001-34, herein represented pursuant to its bylaws (“Easynvest Participações”):

4.4.    EASYNVEST CORRETORA DE SEGUROS LTDA., limited liability company, duly incorporated and validly existing under the laws of Brazil, headquartered in the City of São Paulo, State of São Paulo, at Av. Doutor Cardoso de Mello, No. 1,608, 15th floor, Suite 31, Vila Olímpia, Zip Code 04548-005, enrolled with CNPJ/ME under No. 33.866.966/0001-65, herein represented pursuant to its bylaws (“Easynvest Corretora de Seguros”‘): and

4.5.    EASYNVEST GESTÃO DE RECURSOS LTDA., limited liability company, duly incorporated and validly existing under the laws of Brazil, headquartered in the City of São Paulo, State of São Paulo, at Av. Doutor Cardoso de Mello, No. 1.608, 13th floor, Conjunto 132 B, Vila Olímpia, Zip Code 04548-005, enrolled with CNPJ/ME under No. 33.824.050/0001-42, herein represented pursuant to its bylaws (“Easynvest Gestão de Recursos”).

WHEREAS:

 

(i)

The Broker is a securities broker authorized by BACEN and CVM to perform the activities, whose share capital, on the Signature Date, is eighty-seven million, one hundred and sixty seven thousand, three hundred and seventy reais (R$87,167,370.00), divided into fourteen million, nine hundred and six thousand, two hundred and sixty four (14,906,264) shares, of which seven million, four hundred and fifty-three thousand, one hundred and thirty-two (7,453,132) are registered common shares with no par value (“Broker Common Shares”) and seven million, four hundred and fifty-three thousand, one hundred and thirty-two (7,453,132) are registered preferred shares with no par value (“Broker Preferred Shares” and, in conjunction with the Broker Common Shares, the “Broker Shares”), representing one hundred percent (100%) of the Broker’s capital, on a fully diluted basis (except for the Easynvest Option Plan), divided amongst the Easynvest Shareholders and Easynvest Holding Financeira in the proportions described in “Annex I.I”. For the purposes of clarification, on April 14, 2020, the Broker’s capital increase was approved, in the amount of forty million reais (R$40,000,000.00), upon issuance of three hundred and seventy-nine thousand, seven hundred and seventy-eight (379,778) Broker Shares, of which (i) one hundred and eighty-nine thousand, eight hundred and eighty-nine (189.889) are Broker Common Shares; and (ii) one hundred and eighty nine thousand, eight hundred and eighty-nine (189,889) are Broker Preferred Shares, noting that (a) such corporate resolution is pending approval by BACEN, (b) the amount of twenty million reais (R$20,000,000.00) has already been paid by the Easynvest Shareholders; and (c) the remaining amount of twenty million reais (R$20,000,000.00) shall be paid by the Easynvest Shareholders through the Closing Date;

 

(ii)

Easynvest Corretora de Seguros is an insurance company duly authorized by SESEP to perform its activities, whose share capital, on the Signature Date, is one hundred thousand reais (R$100,000.00), divided into one hundred thousand (100,000) quotas, in the amount of one real (R$1.00) each, fully subscribed and paid, representing one hundred percent (100%) of the total capital, on a fully diluted basis, held by Easynvest Participações;

 

(iii)

Easynvest Gestão de Recursos is a fund manager, duly authorized by CVM to perform its activities, whose share capital, on the Signature Date, is nine hundred thousand reais (R$900,000.00), divided into nine hundred thousand (900,000) quotas, in the amount of one real (R$1.00) each, fully subscribed and paid, representing one hundred percent (100%) of the total capital, on a fully diluted basis, held by Easynvest Participações;

 

(iv)

Easynvest Holding Financeira is a corporation, whose share capital, on the Signature Date, is two hundred and fifteen million, eight hundred and ninety thousand, one hundred and fifty reais (R$215,890,150.00), divided in two hundred and fifteen million, eight hundred and ninety thousand, one hundred and fifty (215,890,150.00) registered common shares, with no par value, representing one hundred percent (100%) of the total capital, on a fully diluted basis (“Easynvest Holding Financeira Shares”), fully subscribed and paid, held by Atlas;

 

(v)

Easynvest Participações is a non-financial holding, whose share capital, on the Signature Date, is one million and two thousand reais (R$1,002,000.00), divided into one million and two thousand (1,002,000) shares, of which (a) five hundred and one thousand (501,000) are common shares, and (b) five hundred and one thousand (501,000) are preferred shares, all registered and with no par value, representing one hundred percent (100%) of the total capital, on a fully diluted basis (“Easynvest Participações Shares” and, in conjunction with the Easynvest Holding Financeira Shares, the Broker Shares and, in the event the establishment of Easycred is approved by BACEN through the Closing Date, the Easycred’s total shares, the “Easynvest Shares”), divided amongst the Easynvest Shareholders in the proportions described in “Annex I.I”;

 

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(vi)

Easycred Sociedade de Crédito Direto S.A. shall be a direct credit company, whose establishment, on the Signature Date, is subject to the BACEN’s authorization (“Easycred”) and, upon BACEN’s authorization before the Closing Date, shall be included in this Agreement as an Intervening Consenting Party, through the signature of an amendment to this Agreement by the Parties and, in addition, shall be included, for all purposes of this Agreement, in the definition of Easynvest Companies, in which case “Annex I.I” shall be adjusted to reflect the equity interests held by the Easynvest Shareholders;

 

(vii)

through the Closing Date, the Easynvest Shareholders shall conclude the corporate reorganization, as described in detail in “Annex I.II” (“Corporate Reorganization”);

 

(viii)

Nu Holdings is a company established in accordance with applicable Laws, whose capital, on a fully diluted basis, is described in detail in “Annex I.III”;

 

(ix)

Nu Distribuidora de Títulos e Valores Mobiliários Ltda. is a securities distribution company, being established (“DTVM Nubank”), according to the request filed before BACEN on August 16, 2019, which was approved by BACEN on April 19, 2020, supported by the protocol of the establishment of DTVM Nubank before BACEN on August 20, 2020, provided that, upon approval of the establishment of DTVM Nubank by BACEN, and in the event such approval takes place through the Closing Date, (i) DTVM Nubank (or any Affiliate of DTVM Nubank) shall assume the Investor’s contractual position, through the Closing Date, automatically, not subject to any authorization by the Easynvest Shareholders, and (ii) Nu Financeira shall act, in conjunction with Nu Pagamentos, as the guarantor, under the terms set forth in Clause 14.1, of the obligations assumed by DTVM Nubank, subject to an amendment to this Agreement;

 

(x)

under the terms and subject to the conditions set forth herein, (A) the Investor intends to acquire from the Easynvest Shareholders, and the Easynvest Shareholders intend to sell to the Investor, all, and not less than all, the Easynvest Shares, free and clear of any Encumbrances; and, subsequently to the abovementioned purchase and sale, (B) the Easynvest Shareholders, signatories of this Agreement, intend to subscribe; and Nu Holdings intends to issue and deliver, certain shares representing the Nu Holdings’ capital, free and clear of any Encumbrances (except as expressly set forth in this Agreement), under the terms and conditions set forth below (collectively (A) and (B), the “Operation”‘).

ACCORDINGLY, RESOLVED the Parties to enter into this Agreement, which shall be governed by the following clauses and conditions:

1.    DEFINITIONS AND INTERPRETATION

1.1.    Definitions. The terms in capital letters used in this Agreement, including the respective Annexes, shall have the following meanings attributed in “Annex 1.1”.

1.2.    Interpretation Rules. Except as expressly indicated otherwise, in the interpretation of this Agreement:

(i)    the headings and titles shall not limit or impact, on any account, the interpretation of the text, which were included, therefore, solely for purposes of convenience and reference;

(ii)    the terms “including”, “inclusive”, “includes”, “included” and related and similar terms shall be construed as accompanied by the expression “among others” and, therefore, for purposes of clarification and never for purposes of limitation;

(iii)    the term “or” and similar terms shall be construed as “and/or” and, therefore, on a non-exclusive basis;

(iv)    the references to any documents or instruments include all respective amendments, replacements, restatements and supplements, except if otherwise expressly indicated;

(v)    the references to the provisions of any Laws shall be construed as references to such provisions and respective amendments or restatements;

 

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(vi)    the references to sections, clauses and annexes include the sections, clauses and annexes hereof;

(vii)    the terms “herein”, “hereof” and other terms with similar meanings refer to this Agreement as a whole, including the annexes hereto, rather to any chapter, clause or another specific subdivision;

(viii)    all references to Persons include, as applicable, also the successors, heirs, beneficiaries and authorized assignees;

(ix)    for purposes of the declarations and guarantees granted to the knowledge of a certain Person, “knowledge” means any information that is known or, in relation to a legal entity, any information that is known or should be known by the directors, executive officers or shareholders of such Person in compliance with the fiduciary obligations imposed by the Law;

(x)    all definitions used in this Agreement shall be applicable in the singular or plural form, regardless of the gender;

(xi)    all accounting terms shall be construed in accordance with the Accounting Principles; and

(xii)    all terms set forth herein or arising herefrom shall be calculated as set forth in article 123, of the Civil Code, that is, excluding the initial day and including the maturity date, upon postponement of any term that ends on any day other than a Business Day to the immediately subsequent Business Day, not subject to any interest.

2.    PURCHASE AND SALE OF EASYNVEST SHARES

2.1.    Purchase and Sale of Easynvest Shares. Under the terms and conditions set forth in this Agreement, specifically the verification and performance of the Suspensive Conditions, the Easynvest Shareholders hereby sell, transfer, assign and deliver to the Investor, and the Investor purchases, receives and acquires from the Easynvest Shareholders, all, and not less than all, the Easynvest Shares, representing one hundred percent (100%) of the capital of Easynvest Participações, Easynvest Holding Financeira, the Broker and Easycred, in the event such company has been established through the Closing Date, in the proportion indicated in “Annex I.I” (“Purchase and Sale of the Easynvest Shares”‘).

2.2.    Encumbrances. The Easynvest Shares shall be transferred, on the Closing Date, by the Easynvest Shareholders to the Investor, free and clear of any Encumbrances, including all rights inherent thereto (including the equity rights).

2.3.    Exercise of the Easynvest Options. On the Submission Date of the Notice, the Easynvest Shareholders shall submit to the Investor an update of “Annex I.I”, reflecting (i) the beneficiaries of the Easynvest Option Plan and the Carlos Option Agreement, as indicated in “Annex 2.3”, who exercised the respective options (the “Beneficiaries of the Exercised Options”), or (ii) in the event such transfer is authorized by the Investor, the identification of the Easynvest Shareholders that have acquired the stock options of the Easynvest Companies from the beneficiaries of the Easynvest Option Plan, as applicable. The Beneficiaries of the Exercised Options shall comprise this Agreement as the Easynvest Shareholders, for all purposes and effects of this Agreement (except if otherwise determined in Clause 9.1), through the signature of the adhesion term hereto, according to the model included in “Annex 5.3(iv)(b)”, and the shares in connection with such exercise shall be incorporated to the definition of the Easynvest Shares for all purposes and effects of this Agreement. Any and all payments performed by the Easynvest Companies between August 30, 2020 and the Closing Date by virtue of the exercise and/or cancellation of the options granted in the context of the Easynvest Option Plan, the Easynvest Phantom Share Plan and/or the Carlos Option Agreement, including possible Taxes and expenses, shall be considered as an Authorized Withdrawal for all purposes and effects of this Agreement.

3.    ACQUISITION PRICE; PAYMENT METHOD; PRICE ADJUSTMENT

3.1.    Acquisition Price. Under the terms and conditions set forth herein, specifically the verification and performance of the Suspensive Conditions, and in conformity with the provisions set forth in Clauses 3.2, 3.3 and 3.5, as compensation for the acquisition of the Easynvest Shares, the Investor hereby agrees, on an unconditional and irrevocable basis, to pay to the Easynvest Shareholders, on the Closing Date, the base value of one billion and five hundred and ten million reais (R$1,510,000,000.00) (the “Base Acquisition Price”), as detailed in “Annex 3.1”, provided that:

 

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(i)

the Base Acquisition Price shall be added, in the proportion of Real per Real, (i) based on the capital increases performed in any of the Easynvest Companies through the Submission Date of the Notice, provided that in conformity with the provisions set forth in Clause 5.10(iii) or expressly approved by the Investor, and such capital increase is effectively paid (available funds in the bank account of the respective Easynvest Company or in public notes, duly registered with SELIC, pending authorization by BACEN) by the respective Easynvest Shareholder, considering that such payments are not considered twice in the event of any transfer, by means of capital increase, from one Easynvest Company to the other Easynvest Company, and/or (ii) by virtue of the exercise of the Easynvest Option Plan between August 30, 2020 and the Submission Date of the Notice, and which exercise prices have been settled by the respective holders, in Brazilian reais, on behalf of the respective Easynvest Companies. For the purposes of clarification, (i) the payments performed in connection with the Broker’s capital increase on April 14, 2020 shall not be considered for the purposes of this Clause; and (ii) in the event, due to any reason, BACEN has not approved the respective capital increase, the amounts deposited in public notes shall be returned to the respective Easynvest Shareholders that have performed the payment, and shall be deemed as Authorized Withdrawals, for all purposes and effects of this Agreement.

 

(ii)

one hundred percent (100%) of the Base Acquisition Price, duly adjusted to reflect the possible capital increases arising from the provisions set forth in Clause 3.1(i) above, shall be adjusted based on the positive variation of the CDI rate, on a pro rata die basis (“Adjustment for Inflation”) between (a) the Signature Date and the Submission Date of the Notice, in relation to the Base Acquisition Price; and (b) the date on which the Easynvest Shareholders have acquired the respective public notes bound to the capital increase or have performed the respective payment, as applicable, whichever takes place firstly, and the Submission Date of the Notice, in the event of capital increases of the Easynvest Companies performed under the terms set forth in Clause 3.1(i) above, except, in relation to item (a), based on the value equivalent to the Base Acquisition Price to be used by the Easynvest Shareholders for the payment of the Nubank Shares , under the terms set forth in Clause 4 of this Agreement, provided that such portion shall not be subject to any Adjustment for Inflation; and

 

(iii)

within up to three (3) days before the Closing Date (“Submission Date of the Notice”), Easynvest Shareholders shall submit to the Investor (a) the notice informing possible additions to the Base Acquisition Price, arising from the adjustment referred to in item “i” of Clause 3.1 above, (b) the minutes of the partners’ meeting and/or shareholders’ meeting, as applicable, including (i) the approval, by unanimous decision and without any exceptions or restrictions, or (ii) upon performance of the rules for request and holding set forth in applicable Law, the capital increases set forth in item “i” of Clause 3.1 above, (c) the calculation spreadsheet of the Adjustment for Inflation, under the terms set forth in item “ii” of Clause 3.1 above; (d) the update of “Annex I.I”, reflecting (i) the Beneficiaries of the Exercised Options; or (ii) Easynvest Shareholders that, as previously authorized by the Investor, have acquired the beneficiaries’ options of the Easynvest Option Plan and the Carlos Option Agreement, as applicable; (e) the update of “Annex 3.4”, reflecting the bank accounts of the Beneficiaries of the Exercised Options, if applicable; and (f) the update of “Annex 8.2(ii)”.

3.2.    Assumptions for definition of the Base Acquisition Price. The Parties acknowledge and agree that the Base Acquisition Price was defined based on the assumption that, on August 31, 2020, the Easynvest Companies, the Easynvest Operational Companies and the Broker, however the case may be, have defined the Minimum Own Funds, the Maximum Debt, the Minimum Equity and the Minimum Basel Index. In the event any of these assumptions are not verified, the Base Acquisition Price shall be adjusted, in conformity with the procedure set forth in Clause 3.5.

3.3.    Withdrawal. The Easynvest Shareholders and the Easynvest Companies acknowledge that they have not performed, and are not obligated to perform and guarantee the performance, of any Withdrawals between August 31, 2020 and the Closing Date, except for the Authorized Withdrawals, which were performed or could be performed, however they should be deemed as Withdrawals for all purposes and effects of this Agreement.

 

(i)

The Easynvest Shareholders and the Easynvest Companies shall (i) notify the Investor in writing immediately after becoming aware of any Withdrawal or that any Withdrawal may probably take place between the Signature Date and the Closing Date and (ii) deliver a certificate in writing to the Investor on the Closing in connection with any Withdrawals and/or Authorized Withdrawals between August 31, 2020 and the Closing Date, under the terms set forth in Clause 6.2(xvi) hereunder.

 

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(ii)

Upon performance of any Withdrawals and/or Authorized Withdrawals, between August 31, 2020 and the Closing Date, and without prejudice to the other fines set forth in this Agreement (except for the Authorized Withdrawals), the Closing Acquisition Price, shall be reduced based on the Withdrawals and/or the Authorized Withdrawals, as applicable, performed through the Closing Date (inclusive).

 

(iii)

The Closing Acquisition Price shall be adjusted, even after the Closing Date, in the event the Investor identifies the occurrence of any Withdrawals and/or Authorized Withdrawals between August 31, 2020 and the Closing Date.

 

(iv)	In the event of any conflict between the Parties with respect to the price adjustment arising from any Withdrawals and/or Authorized Withdrawals performed between August 31, 2020 and the Closing Date, the procedure set forth in Clause 8.6 shall be adopted.

 

(v)	Any Withdrawal or Authorized Withdrawal shall be adjusted for inflation, from the date of the Withdrawal and/or Authorized Withdrawal through the effective payment on behalf of the Investor or any Investor Indemnified Parties.

3.4.    Payment of the Closing Acquisition Price. On the Closing Date, in conformity with the provisions set forth in Clause 4.2(ii)(1) and Clause 6.4, the Investor shall pay the Base Acquisition Price, duly adjusted based on the provisions set forth in Clauses 3.1(i) and 3.1(ii), less any Withdrawals and/or Authorized Withdrawals performed between August 31, 2020 and the Closing Date (calculated under the terms set forth in Clause 3.3) (“Closing Acquisition Price”) on behalf of the Easynvest Shareholders through the transfer of immediately available funds to the bank accounts of the Easynvest Shareholders informed in “Annex 3.4”. The Closing Acquisition Price shall be paid and allocated amongst the Easynvest Shareholders in conformity with the proportions described in “Annex 3.1”, as adjusted to reflect (i) the Beneficiaries of the Exercised Options; or (ii) the Easynvest Shareholders that, upon the Investor’s previous authorization, have acquired the options from the beneficiaries of the Easynvest Option Plan, provided that the Investor indicates, on the Closing Date, the acquisition price attributable to the Easynvest Participações Shares, the Easynvest Holding Financeira Shares, the Broker Shares and the Easycred’s Shares, if applicable, according to the appraisal reports prepared by the Investor, based on the Closing Acquisition Price and the proportion indicated in “Annex 3.1”, as updated under the terms set forth in this Agreement.

 

(i)

The Parties agree that, by virtue of the adjustments to the Base Acquisition Price, as set forth (i) in items “i” and “ii” of Clause 3.1, and (ii) in Clause 3.3, on the Submission Date of the Notice, the Easynvest Shareholders shall submit to the Investor an update of “Annex I.I” “Annex 3.1”, “Annex 3.4” and “Annex 8.2(ii)”, inclusive, for the purposes of information of the total number of Easynvest Shares to be acquired by the Investor, as well as inclusion of the names, identification, bank accounts and proportions of the Closing Acquisition Price entitled to (i) the Beneficiaries of the Exercised Options; and/or (ii) the Easynvest Shareholders that have, as previously authorized by the Investor, acquired the options of the beneficiaries under the Easynvest Option Plan.

 

(ii)

The Parties acknowledge that the respective transfer receipts, provided that such receipts properly reflect the information included in “Annex 3.1” and “Annex 3.4”, as adjusted under the terms set forth in this Agreement, shall be used as an unconditional and irrevocable evidence of the settlement of the Closing Acquisition Price for all purposes and effects of applicable law in force.

 

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3.5.    Adjustment to the Closing Acquisition Price after Closing. The Easynvest Companies shall prepare the combined financial statements (including the balance sheets and the statements of profit and loss) of the Easynvest Companies as at August 31, 2020 (“Adjustment Base Date”), which shall be concluded and delivered to the Parties within ninety (90) days as from the Signature Date, in conformity with the Accounting Principles (“Adjustment Balance Sheet”), for the purposes of verification of the possible Adjustment to the Base Acquisition Price, as set forth in this Clause, and without prejudice to the provisions set forth in Clause 3.3. In conjunction with the Adjustment Balance Sheet, the Easynvest Companies shall provide to the Parties the statement indicating the Own Funds (of the Easynvest Companies), the Debt of the Easynvest Companies), the Equity (of the Easynvest Operational Companies), the Reference Equity (of the Broker) and the Basel Index (of the Broker) on the Adjustment Base Date, on a combined basis and, as applicable, prepared based on the Adjustment Balance Sheet (“Adjustment Statement” and, in conjunction with the Adjustment Balance Sheet, the “Adjustment Documents”). Within ninety (90) days as from (i) the receipt of the Adjustment Documents or (ii) the Closing Date, whichever takes place later, the Investor shall submit to the Easynvest Shareholders the notice (“Adjustment Notice”) including the calculation of the Acquisition Price Adjustment, under the terms set forth in Clause 3.5.1 below (“Acquisition Price Adjustment”). The Parties agree to cooperate with the Easynvest Companies and the Investor in the preparation of the Adjustment Documents and the Adjustment Notice, under the terms set forth in this Clause 3.5. Alternatively, the Easynvest Shareholders may deliver to the Investor, at any time as from the Signature Date, the Adjustment Documents (considering that, in this case, the Adjustment Balance Sheet shall be audited), in which case the Adjustment Notice shall be submitted by the Investor to the Easynvest Shareholders within thirty (30) days as from the receipt of such notice, including the Acquisition Price Adjustment. Regardless of the (i) submission of the Adjustment Notice by the Investor, and (ii) the eventual agreement between the Parties with respect to the amount payable as the Acquisition Price Adjustment, (a) the Investor or any Indemnified Party of the Investor may consider the assumption referred to in Clause 8.1 of the Agreement, upon verification of the events set forth therein, and (b) possible discussions or disagreements between the Parties in the context of this Clause 3.5, before the Closing Date, shall not jeopardize or extend the Operation Closing, which shall be performed under the terms and conditions set forth in this Agreement. The Parties agree that the events that generate possible adjustments shall not be considered twice (bis in idem) and, therefore, the Acquisition Price Adjustment shall be equivalent to the minimum value of the potential capital increase on the Adjustment Base Date in the Easynvest Companies, which would be necessary for simultaneous verification of the Minimum Own Funds, the Maximum Debt, the Minimum Equity and the Minimum Basel Index. For purposes of clarification, any possible indemnity payable under the terms set forth in Clause 8.1(i), by virtue of the violation of Section 7.2, item (xxxv), of the Easynvest’s Disclosure Letter (Minimum Own Funds, Maximum Debt, Minimum Equity and Minimum Basel Index) shall solely be payable in the event (i) the Acquisition Price Adjustment is not performed, as set forth in this Clause 3.5; or (ii) the Acquisition Price Adjustment is not concluded as set forth in Clause 3.5.5 or as agreed by the Parties. In the event the indemnity procedure is applicable (that is, the Acquisition Price Adjustment has not been performed or concluded), the provisions set forth in Clause 3.5 shall be adopted in the calculation of the indemnity under discussion, inclusive with respect to the impossible consideration of the double adjustments (bis in idem), as set forth herein.

3.5.1.    The Acquisition Price Adjustment shall be calculated by the Investor in conformity with the following parameters:

 

(i)

On the Adjustment Base Date, the Easynvest Companies shall have, collectively, Own Funds of, at least, forty-five million reais (R$45,000,000.00) (“Minimum Own Funds”): in the event the Minimum Own Funds are not verified in the Adjustment Documents, the Base Acquisition Price shall be reduced by the same amount of the difference as price adjustment;

 

(ii)

On the Adjustment Base Date, the Easynvest Companies shall have, collectively, Debt of, at most, zero reais (R$0.00) (“Maximum Debt”): in the event the Maximum Debt is not verified in the Adjustment Documents, the Base Acquisition Price shall be reduced by the same amount of the difference as price adjustment;

 

(iii)

On the Adjustment Base Date, the Easynvest Operational Companies shall have, collectively, Equity of, at least, forty-eight million reais (R$48,000,000.00) (“Minimum Equity”); in the event the Minimum Equity of the Easynvest Operational Companies is not verified in the Adjustment Documents, the Acquisition Price shall be reduced by the same amount of the difference as price adjustment; and

 

(iv)

On the Adjustment Base Date, the Broker shall have the Basel Index of, at least, eleven percent (11%) (“Minimum Basel Index”) based on the assumption that the Broker may use twenty million reais (R$20,000,000.00) already paid by the Easynvest Shareholders and subject to approval by BACEN for calculation basis; in the event the Minimum Basel Index is not verified in the Adjustment Documents, the Base Acquisition Price shall be reduced by the amount that the Reference Equity should be increased so that the Minimum Basel Index had been verified on the Adjustment Base Date.

 

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3.5.2.    As set forth in Clause 3.5.3 below, in the event Easynvest Shareholders holding more than sixty-five percent (65%) of the Easynvest Shares disagree with respect to the contents of the Adjustment Documents and/or the Adjustment Notice, the Easynvest Shareholders may, within forty-five (45) days after the receipt of the Adjustment Notice (“Review Term”), deliver to the Investor a notice informing, in detail, the reason for such disagreement, in conjunction with the supporting documents of such disagreement (“Price Disagreement Notice”). In the event no Price Disagreement Notice has not been received by the Investor through the last day of the Review Term, the Acquisition Price Adjustment included in the Adjustment Notice shall be deemed final, representing a valid and enforceable obligation against the Parties. The Investor may execute the guarantee granted to the Investor by the Easynvest Shareholders in relation to the Nubank Shares, under the terms of the Guarantee Agreement of the Nubank Shares, in the event the Easynvest Shareholders have not paid such amount to the Investor within fifteen (15) Business Days counted as from the submission of the notice by the Investor, in the proportion defined in “Annex 3.1” hereof, upon electronic transfer to the current account informed by the Investor.

3.5.3.    In the event Easynvest Shareholders holding more than sixty-five percent (65%) of the Easynvest Shares on the Signature Date have timely delivered to the Investor the Price Disagreement Notice under the terms set forth in Clause 3.5.2 above, (i) the unquestionable amount of the Acquisition Price Adjustment included in the Adjustment Notice shall be final), to which each of the Parties shall be bound, representing a valid and enforceable obligation. The Acquisition Price Adjustment shall be paid by the Easynvest Shareholders to the Investor within fifteen (15) Business Days in the proportion defined in “Annex 3.1” hereof, upon electronic transfer of funds to the current account indicated by the Investor; and (ii) the Investor and the Easynvest Shareholders shall undertake best efforts, in good faith, to resolve the matter addressed in the Price Disagreement Notice within ten (10) Business Days after the receipt, by the Investor, of such Price Disagreement Notice. In the event the Investor and the Easynvest Shareholders holding more than sixty-five percent (65%) of the Easynvest Shares on the Signature Date have achieved an agreement with respect to the Price Disagreement Notice, any payment from one Party to the other shall be performed under the terms and conditions set forth in such agreement.

3.5.4    In the event the Investor and the Easynvest Shareholders holding more than sixty-five percent (65%) of the Easynvest Shares on the Signature Date are not able to resolve any matter under discussion within ten (10) Business Days, the Investor shall select one of the following audit firms to resolve the matters under discussion (and solely the matters under discussion): (i) BDO; (ii) Grant Thornton, or (iii) Mazars (“Auditor of the Price Adjustment”). The Easynvest Shareholders and the Investor, hereby, agree to provide to the Auditor of the Price Adjustment the documentation and information, as possible, as deemed necessary by the Auditor of the Price Adjustment, at the Auditor’s discretion. The Auditor of the Price Adjustment, by assuming the attributions to be performed under the terms set forth herein, shall act as the expert rather than the arbitrator. The Auditor of the Price Adjustment, as soon as possible, however under any circumstance within sixty (60) days after the acceptance date of the contracting, shall deliver to the Parties the report (“Price Adjustment Report”) in which the Auditor of the Price Adjustment shall present the calculations of the changes, if any, in the Adjustment Documents and/or the Adjustment Notice, as applicable. The Auditor of the Price Adjustment shall rely on the same assumptions set forth in Clause 3.5.1 above. The Auditor of the Price Adjustment shall solely analyze the items challenged by the Easynvest Shareholders. The Parties shall disregard any additional analysis included in the Adjustment Documents and/or the Adjustment Notice.

3.5.5    The Price Adjustment Report, except in the event of express error or fraud, is final and shall bind the Parties, which shall not be entitled to any lawsuit or appeal before any proper authority. In the event the Price Adjustment Report has determined the Adjustment to the Base Acquisition Price, the Easynvest Shareholders shall pay the amount indicated in the Price Adjustment Report to the Investor in the proportion defined in “Annex 3.1” hereto, upon electronic transfer of the funds to the current account indicated by the Investor within, at most, fifteen (15) Business Days counted as from the issuance date of the Price Adjustment Report.

3.5.6.    Any fees and expenses relating to the work conducted by the Auditor of the Price Adjustment shall be paid by the Party that has received the unfavorable decision in relation to the matter under discussion. In the event both Parties have received favorable and unfavorable decisions in relation to the matter under discussion, the costs shall be paid proportionally to the unfavorable decisions received by each Party.

3.6.    Payment of Taxes. Each of the Easynvest Shareholders (except for Atlas) shall be responsible for the delivery to the Investor of the Federal Income Collection Document (DARF) confirming the payment of the income tax levied on the capital gain accrued in connection with the sale of the Easynvest Shares, within five (5) days after the legal term for the payment of such tax. Without prejudice to the provisions set forth above, each of the Easynvest Shareholders shall, individually and not jointly or collectively, be the sole responsible for the income tax levied on the capital gain accrued arising from the sale of the Easynvest Shares, if applicable.

4.    SUBSCRIPTION OF NUBANK SHARES

4.1.    Subscription of the Nubank’s New Shares. As set forth in Clause 4.2(ii)(1) and Clause 6.4, on the Closing Date, the Easynvest Shareholders (or any Affiliate or Advent Affiliate) shall subscribe, and Nu Holdings shall issue and transfer to the respective Easynvest Shareholders (or Affiliate or Advent Affiliate), certain number of Series F-2 preferred shares (Series F-2 Preferred Shares), representing the capital of Nu Holdings (“Nubank Shares”), all free and clear of any Encumbrances, except for the provisions set forth in the Investment Documents of Nubank’s Shares, which mainly reproduce the documents to be signed on the Closing Date upon the issuance of the Nubank Shares to the respective Easynvest Shareholders or Affiliates or Advent Affiliates, if applicable. The portion of the Closing Acquisition Price to be used by the Easynvest Shareholders for the payment of the Nubank Shares is defined in “Annex 3.1” of this Agreement, provided that such Easynvest Shareholders shall not use such funds for any purpose other than the payment of the Nubank Shares, as set forth in this Chapter 4.

 

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4.2.    Evaluation of the Nubank Shares and Procedure for Issuance and Registry of Ownership. The Parties agree that, for the purposes of evaluation and definition of the number of Nubank Shares to be subscribed by the Easynvest Shareholders, the following terms and conditions are applicable:

 

(i)

Number of Nubank Shares and Unit Value. The number of Nubank Shares to be issued by Nu Holdings and subscribed by the Easynvest Shareholders on the Closing Date shall be defined in accordance with the formula included in “Annex 4.2(i)”, considering that par value per Nubank’s Share of US$14.884676 (“Par Value”). The total number of Nubank Shares shall be duly adjusted to reflect any and all split-offs, groupings and bonuses or any other similar event before the effective transfer of the Nubank Shares to the respective Easynvest Shareholders. On the Business Day before the Closing Date, the Investor shall submit the notice to the Easynvest Shareholders, under the terms set forth in Clause 13.1, indicating the number of Nubank Shares to be issued by Nu Holdings on the Closing Date, to be calculated under the terms of “Annex 4.2(i)”.

 

(ii)

Payment of the Nubank’s Shares. Except if otherwise set forth in item (ii)(1) below, the Nubank Shares subscribed by the Easynvest Shareholders shall be paid on the Closing Date, upon deposit of the funds, in US dollars, in the current account informed by Nu Holdings corresponding to the Par Value multiplied by the Nubank Shares to be issued to the Easynvest Shareholders on the Closing Date, in conformity with the formula included in “Annex 4.2(i)” and the allocation defined in “Annex 3.1” (the “Payment of the Nubank’s Shares”).

 

(1)

As set forth in item (2) below, in the event that, after the receipt of the Closing Acquisition Price by the Easynvest Shareholders, any Easynvest Shareholder has not performed the payment of the Nubank Shares on the Closing Date, and the Investor has elected to perform the Closing, although without the Closing Act, under the terms set forth in Clause 6.4, the following procedure shall be applied in relation to the respective Easynvest Shareholder that violated the obligation relating to the Payment of the Nubank Shares: the Easynvest Shareholder that has not transferred the funds in US dollars to Nu Holdings on the Closing Date, (aa) shall, within ten (10) days, resolve such situation and shall deposit such funds to Nu Holdings in the bank account indicated in “Annex 4.2(ii)(2)” (“Resolution Term”), subject to the application of the Adjustment for Inflation on the amount not transferred, from the Closing Date to the date of the effective deposit in the bank account indicated by Nu Holdings, provided that, in relation to Atlas or any Advent Affiliate, the Resolution Term shall be one (1) Business Day as from the Closing Date and, after such date, the fines set forth in item (bb) of this Clause shall be applied; (bb) in the event the Easynvest Shareholder (or any Easynvest Shareholder (or any Advent Affiliate) on behalf of the Easynvest Shareholder that violated the obligation of Payment of the Nubank’s Shares) has not transferred such funds within the Resolution Term, the respective Easynvest Shareholder that violated the obligation of Payment of the Nubank’s Shares shall be subject to the daily, non-compensatory fine equivalent to one percent (1%) of the Closing Acquisition Price received by such Easynvest Shareholder until resolution of the matter, limited to, under any circumstance, twenty percent (20%) of the Closing Acquisition Price that has been received by such Easynvest Shareholder, (cc) the Nubank Shares that should have been subscribed by such Easynvest Shareholder on the Closing Date shall not be transferred by Nu Holdings to the respective Easynvest Shareholder until the effective transfer of the funds to the current account indicated by Nu Holdings, under the terms set forth in “Annex 4.2(ii)(2)”. In the event the Operation Closing takes place and such funds are not transferred to Nu Holdings within twenty (20) days counted from the termination of the Resolution Term (except for Atlas or Advent Affiliates, which term is counted after one (1) Business Day as from the Closing Date), the Investor may be entitled to the right to inform the respective Easynvest Shareholder that violated the obligation of Payment of the Nubank’s Shares and also inform that the Nubank Shares shall be cancelled, in which case the respective Easynvest Shareholder shall no longer be authorized to subscribe such Nubank Shares, without prejudice to the payment obligation of the fines set forth in this Agreement and the other losses and damages eventually incurred by the Investor.

 

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(2)

For purposes of clarification, (i) the provisions set forth in Clause 4.2(ii)(1) shall not be applicable to the Easynvest Shareholder that has timely performed the Payment of the Nubank’s Shares on the Closing Date, considering that, in relation to the non-defaulting Easynvest Shareholder, the provisions set forth in this Agreement shall be adopted in connection with the subscription of the Nubank Shares, including, but not limited to, the provisions set forth in Clauses 6.2(v) and 6.2(vi); and (ii) the Investor shall not be entitled to the option to not perform the Closing, under the terms set forth in Clause 6.4, in the event Atlas (or any Advent Affiliate) performs the Payment of the Nubank’s Shares on the Closing Date, in which case the Closing shall be carried out as set forth in this Agreement, regardless of the default of the other Easynvest Shareholders, without prejudice to the procedures and fines, under the terms of this Clause 4.2(ii)(1) and Clause 6.4, applicable to the Easynvest Shareholders that have not complied with the obligation of Payment of the Nubank’s Shares.

 

(3)

The current account informed by Nu Holdings for deposit of the funds in US dollars for purposes of payment of the Nubank Shares is indicated in “Annex 4.2(ii)(2)”.

 

(iii)

Rights of the Nubank’s Shares. The Nubank Shares attributable to the Easynvest Shareholders shall be entitled to the rights described in the Investment Documents of Nubank’s Shares, which mainly reproduce the documents to be signed upon the issuance of the Nubank Shares.

5.    SUSPENSIVE CONDITIONS; APPROVALS; BUSINESS CONDUCTION

5.1.    Suspensive Conditions to the Parties’ Obligations. The Parties’ obligations to undertake the Closing Acts, as set forth in this Agreement, for the completion of the Operation, are bound and subject to the verification and performance of the following Suspensive Conditions through the Closing Date, inclusive (“Parties’ Suspensive Conditions”), contracted under the terms set forth in articles 125 and 126 of the Civil Code:

 

(i)

Absence of Legal Restrictions. No measure, Law or legal decision, although temporary, issued by a proper Governmental Authority to prohibit or prevent the consumption of the Operation in connection with this Agreement, in conformity with the terms and conditions set forth herein (according to the provisions set forth in Clause 5.9) shall be effective on the Closing Date, provided that, however, the Party affected by any such order or preliminary injunction shall undertake the best efforts to revoke, annul or suspend such order or preliminary injunction before the Closing Date.

 

(ii)	BACEN’s Approvals. The Parties’ obligation to complete the Operation is subject to the obtaining of the BACEN’s Approvals, as set forth in Clause 5.9.

 

(iii)

CADE’s Approvals. The Parties’ obligation to complete the Operation is subject to the obtaining of the CADE’s Approval, as set forth in Clause 5.9.

 

(1)

Under applicable legislation, the Parties shall wait for fifteen (15) days counted from the publication of the decision of the General Superintendent (i.e., the termination of the legal term for appeal filed by third parties or notification by the Court) to proceed with the Closing. Upon confirmation of the absence of any appeal within such term, provided that CADE has issued the respective certificate for filing of the respective concentration act, the Parties shall have complied with the suspensive condition described in this Clause.

5.2.    Suspensive Conditions to the Obligations of the Easynvest Companies and Easynvest Shareholders. The obligations of the Easynvest Companies, as applicable, and the Easynvest Shareholders to undertake the Closing Acts attributed thereto, as set forth in this Agreement, for the purposes of completion of the Operation, are bound and subject to the verification and performance (or respective waiver in writing, as applicable) of the following Suspensive Conditions through the Closing Date, inclusive (“Easynvest’s Suspensive Conditions”), contracted under the terms provided for articles 125 and 126 of the Civil Code:

 

(i)

Performance of the Obligations. The Investor, Nu Holdings and the Guarantor (and any of the Affiliates, as applicable) shall have complied with and performed, in all material respects, all respective obligations set forth in this Agreement, as applicable, through the Closing Date (inclusive).

 

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(ii)

Representations and Guarantees. The Essential Representations and Guarantees provided by the Investor are correct, true, accurate and updated, as of the date hereof and on the Closing Date. The other representations and guarantees provided by the Investor shall, in all material respects, be true, correct, accurate and updated as of the date hereof and on the Closing Date, except for the representations and guarantees relating to any specific date, which shall be deemed true on the respective date, provided that the Investor is entitled to the right to update the Disclosure Letter under the terms set forth in Clause 7.5.

 

(iii)

Absence of Material Adverse Effect. No Material Adverse Effect relating to the Investor, Nu Holdings and/or the Guarantor shall have taken place between the Signature Date and the Closing Date.

5.3.    Suspensive Conditions to the Investor’s Obligations. The obligations assumed by the Investor and Nu Holdings (and its Affiliates, including the Guarantor, as applicable) to undertake the Closing Acts attributed thereto, as set forth in this Agreement, for the completion of the Operation, are bound to and subject to the verification and performance (or respective waiver in writing, when applicable) of the following Suspensive Conditions through the Closing Date, inclusive (“Investor’s Suspensive Conditions”), contracted under the terms of articles 125 and 126 of the Civil Code:

 

(i)

Performance of the Obligations. The Easynvest Shareholders and the Easynvest Companies shall have complied and performed, in all material respects, the respective obligations set forth in this Agreement, however the case may be, through the Closing Date (inclusive).

 

(ii)

Representations and Guarantees. The Essential Representations and Guarantees provided by the Easynvest Shareholders are correct, true, accurate and updated, as of the date hereof and on the Closing Date. The other representations and guarantees provided by the Easynvest Shareholders shall, in all material respects, be true, correct, accurate and updated as of the date hereof and on the Closing Date, except for the representations and guarantees relating to any specific date, which shall be deemed true on the respective date, provided that the Easynvest Shareholders is entitled to the right to update the Disclosure Letter under the terms set forth in Clause 7.5.

 

(iii)

Corporate Reorganization. Up to the Closing Date, the Corporate Reorganization shall have been duly concluded, upon the registry before the proper bodies, including JUCESP, of all procedures and corporate acts relating to the Corporate Reorganization.

 

(iv)

Easynvest Option Plan, Easynvest’s Phantom Share Plan and Carlos Option Agreement. Through the Submission Date of the Notice, all, and not less than all, notes and marketable securities convertible into, exchangeable for or bound to the shares or quotas of the Easynvest Companies shall have been exercised or cancelled, including the Easynvest Option Plan, the Easynvest’s Phantom Share Plan and the Carlos Option Agreement, as described in the “Annex 5.3(iv)(a)”, in which case, on the Closing Date, there shall be no notes and marketable securities convertible into, exchangeable for or bound to the shares or quotas of the Easynvest Companies to be exercised or exchanged, including any stock options and phantom share plans. In addition, for purposes of clarification, (i) the Easynvest Companies shall ensure that the beneficiaries that have elected for the exercise of the options in the context of the Easynvest Option Plan and the Easynvest’s Phantom Share Plan have fully settled the exercise price of the respective options on behalf of the Easynvest Companies, however the case may be; and (ii) the Beneficiaries of the Exercised Options shall be included as parties to this Agreement as the Easynvest Shareholders (in accordance, under any circumstance, with the provisions set forth in Clause 9.1), through the signature of the adhesion term hereto, according to the model included in the form of “Annex 5.3(iv)(b)” and the shares in connection with such exercise shall be included in the definition of the Easynvest Shares for all purposes and effects of this Agreement. Any and all payments that may be performed by the Easynvest Companies, between August 30, 2020 and the Closing Date, by virtue of the exercise and/or cancellation of the options granted in the context of the Easynvest Option Plan, the Easynvest’s Phantom Share Plan and the Carlos Option Agreement, including the possible Taxes and expenses, shall be considered as an Authorized Withdrawal for all purposes and effects of this Agreement.

 

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(v)

Termination of the Shareholders’ Agreement and the Pledge Agreement. The Easynvest Shareholders and the Easynvest Companies, however the case may be, shall have delivered to the Investor the receipt of release of any Encumbrance imposed on or that may bind the Easynvest Shares, including the termination of the Easynvest Shareholders’ Agreement and the Pledge Agreement involving the shares in relation to the shares of the Easynvest Companies.

 

(vi)

Absence of Material Adverse Effect. No Material Adverse Effect relating to the Easynvest Companies and/or the Easynvest Shareholders shall have taken place between August 30, 2020 and the Closing Date.

 

(vii)

Broker’s Capital Increase. The Easynvest Shareholders shall have fully paid the Broker’s capital increase, in the total amount of forty million reais (R$40,000,000.00), as approved by the Easynvest Shareholders at the Extraordinary Shareholders’ Meeting held on April 14, 2020.

5.4.    Material Adverse Effect Notice. The Easynvest Shareholders and/or the Investor, however the case may be, shall immediately notify in writing the other Party(ies), under the terms set forth in Clause 13.1, with respect to the occurrence of any Material Adverse Effect that would impact the Easynvest Companies, the Easynvest Shareholders and/or the Investor and/or Nu Holdings and/or the Guarantor, as applicable.

5.5.    Joint Cooperation. The Parties shall undertake commercially reasonable efforts and jointly cooperate with each other to perform the Suspensive Conditions, as soon as possible.

5.6.    Deadline. The Parties agree that, for the purposes of the Operation set forth herein, the deadline for verification and performance of the Suspensive Conditions shall take place after the period of twelve (12) months counted as from the Signature Date (the “Deadline”), provided that the Deadline may be extended for an additional period of six (6) months after the first (1st) anniversary of the Signature Date, upon request of any of the Parties, provided that the requesting party is compliant with the obligations set forth in this Agreement. The non-requesting Party shall accept the extension for the additional period in the event of the performance of the obligations set forth in this Agreement. In the event that, through the Deadline, the Closing has not taken place by virtue of the non-verification of the Suspensive Conditions (and provided that the Suspensive Conditions that have not been verified have not been waived, as set forth herein), the Easynvest Companies and the Easynvest Shareholders, on one side, and always jointly, and the Investor, Nu Holdings and the Guarantor, on the other side, and always jointly, may submit a simple notice to the other Party(ies) and terminate this Agreement, not subject to any other charge or fine, in conformity with the provisions set forth in article 129 of the Civil Code, provided that, in addition, the right to terminate this Agreement, in conformity with the provisions set forth in this Clause 5.6, shall not be entitled to the Party(ies) which violation of any declaration, guarantee or agreement in connection with this Agreement has caused the non-performance of the Closing through the Deadline.

5.7.    BACEN’s Approval. Within fifteen (15) days counted from the Signature Date, the Parties shall submit to BACEN the request for previous approval (“BACEN’s Notice”), relating to the change in the Broker’s shareholding control, by means of the request accompanied by all documents deemed necessary or convenient for the analysis by such authority (“BACEN’s Approvals”). For purposes of clarification, the BACEN’s Notice shall not include any request relating to the corporate reorganization of the Investor or its Affiliates, except for the request for approval of the capital increases for the payment of the Closing Acquisition Price or any other corporate act already authorized or provided for in this Agreement, including, but not limited to, the assumption of the obligations and rights set forth in this Agreement by DTVM Nubank.

 

(i)

Cooperation by the Parties. The Parties shall cooperate in the preparation of the BACEN’s Notice and the Annexes thereto, as well as the performance of any subsequent requests by the proper authorities, including the timely presentation of the information and documents deemed necessary for the submission or performance of any possible additional measures. The coordination of the work relating to the submission shall be under the Investor’s responsibility, however, provided that (i) the submission and the works, including the definition of the best strategy for approval, shall be jointly performed by the Parties; and (ii) the Investor and its respective advisors shall ensure full and unconditional access and participation, however the case may be, by the advisors of the Easynvest Shareholders with respect to all information, communications, interactions and meetings with BACEN.

 

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(ii)

Costs. All costs relating to the registry of the BACEN’s Notice, including the applicable registry fees, if eventually applicable in connection with the protocol of the BACEN’s Notice, shall be paid in the proportion of fifty percent (50%) by the Investor and fifty percent (50%) by the Easynvest Shareholders. However, each Party shall assume the costs incurred with the attorneys’ fees of the respective legal advisors.

5.8.    CADE’s Approval. Within thirty (30) consecutive days as from the signature of this Agreement, the Easynvest Shareholders and the Investor, directed by the Investor, shall prepare and present the notice (“CADE’s Notice”) deemed necessary for obtaining the necessary approval for performance of the Operation with CADE (“CADE’s Approval”). The Parties hereby agree to abstain from the performance of the Operation and protect the competition conditions until CADE’s final decision, including lapse of the period for request of suspension of fifteen (15) days after the publication of such approval, as set forth in applicable Law in force. For purposes of clarification, the Investor and the respective advisors shall ensure full and unconditional access and participation, however the case may be, by the advisors of the Easynvest Shareholders with respect to all information, communications, interactions and meetings with BACEN.

 

(i)

Cooperation between the Parties. The Parties shall cooperate with each other in the preparation of the CADE’s Notice and shall deliver each other all information and documentation deemed reasonably required in this regard, in order to comply, on a timely basis, with the requests submitted by CADE. The Parties shall provide, as soon as possible, however, under any circumstance, within the term defined by CADE, all information and inquiries presented by CADE.

 

(ii)

Disclosure Commitment. The Investor shall disclose to the other Parties immediately after the registry of the CADE’s Notice and upon obtaining of the CADE’s Approval, and shall also maintain the other Parties always informed with respect to the progress of the process and any communications submitted to CADE in relation to the Operation (including the provision of copies of the respective request and such communications, provided that requested by the respective Party).

 

(iii)

Registry Costs. All costs in connection with the registry of the CADE’s Notice, including the applicable registry fees, shall be assumed in the proportion of fifty percent (50%) by the Investor and fifty percent (50%) by the Easynvest Shareholders. However, each Party shall assume the costs relating to the attorneys’ fees incurred with the respective legal advisors.

5.9.    Regulatory Approvals. Without prejudice to the provisions set forth in Clauses 5.7 and 5.8 above, in the event of a final decision issued by CADE and/or BACEN not approving the Operation in connection with this Agreement, the provisions set forth in Clause 11.2(ii) shall be adopted; however, provided that, in the event CADE and/or BACEN has bound the approval of the Operation to the compliance with or performance of, however the case may be, measures (in terms of structure or behavior), obligations or commitments that are not deemed Material Changes, the Parties and/or the Intervening Consenting Parties or the other signatories of this Agreement, however the case may be, as deemed responsible for the performance of such measures, obligations or commitments, shall implement them under the terms and conditions established by the Governmental Authority, for the purposes of obtaining of the regulatory approvals, not subject to the termination of the Agreement or any other adjustment to the Closing Acquisition Price. In the event the decision issued by CADE and/or BACEN has bound the approval of the Operation to the performance of or compliance with, however the case may be, the conditions deemed Material Changes, the Easynvest Shareholders, holding more than sixty-five percent (65%) of the Easynvest Shares on the Signature Date and the Investor shall, in good faith, discuss the possible performance of such measures, obligations or commitments, by undertaking the best efforts focused on the completion of the Operation, taking into consideration, however, if an agreement is not achieved after the undertaking of reasonably commercial efforts, any of the Parties may terminate this Agreement under the terms set forth in Clause 11.2(ii) below. Under any circumstance, in the event the Party subject to the performance of such conditions (or is directly or indirectly impacted by the performance of such conditions) has elected, at the Party’s exclusive discretion, to accept the conditions imposed by CADE and/or BACEN, however the case may be, so that the Operation is approved by the respective body, the provisions set forth in Clause 11.2(ii) below are not applicable.

 

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5.10.    Business Conduction. Between the Signature Date and the Closing Date or termination of this Agreement (“Transition Period”), in conformity with the provisions set forth in applicable Laws in force, the Easynvest Shareholders agree to ensure that the Easynvest Companies are able to conduct the activities in the Normal Course of Business, without any relevant changes in the activities in relation to the past practices, not including any operation (or perform any act or activity) not commonly carried out in the course of business, including the payment of all Taxes and performance of all other obligations relating to the businesses and activities of the Easynvest Companies. In addition, without prejudice to the provisions set forth in this Clause 5.10, during the Transition Period, except as expressly set forth in this Agreement, the Easynvest Shareholders agree to ensure that, during the Transition Period, the Easynvest Companies abstain from performing or carrying out one of the following corporate acts:

 

(i)

spin-off, merger, transformation, incorporation, incorporation of shares, corporate operation similar to the abovementioned operations that is structured by means of acquisition or disposal of assets (including the businesses conducted by any Person), or any other type of corporate reorganization involving, directly or indirectly, the Easynvest Companies, except if otherwise set forth in this Agreement (including the Corporate Reorganization);

 

(ii)

acquisition, transfer, creation of Encumbrance, subscription and/or payment of any equity interest and/or marketable securities or establishment of joint ventures, consortia or associations of any type, except for the acquisition of Vérios, provided that such operation is closed in the form previously set forth in SPA Vérios;

 

(iii)

issuance of new notes representing the capital of the Easynvest Companies or marketable securities, except for (a) any possible capitalization of the earnings through the Closing Date, in line with the last balance sheet or trial balance sheet of the Easynvest Companies; (b) exercise of the Easynvest Option Plan to be exercised or cancelled through the Closing Date; and (c) capital increases in the amount of up to twelve million reais (R$12,000,000.00) relating to SPA Vérios, except for the capital increases arising from the regulatory requirements set forth in applicable Law in force;

 

(iv)

any change in the accounting methods or accounting practices adopted by the Easynvest Companies, except as set forth in applicable Laws in force and the Accounting Principles;

 

(v)

contracting of any loan or financing or assumption of any debt, financing, loan or obligation exceeding fifty thousand reais (R$50,000.000), limited to a period of thirty (30) days, considering a single act or operation or a number of related acts or operations;

 

(vi)

acquisition or disposal of any fixed assets or any investment or capital expenditure exceeding, individually or in conjunction with related operations, fifty thousand reais (R$50,000.00), except if (x) performed in the Normal Course of Business of the Easynvest Companies and also limited to three hundred thousand reais (R$300,000.00), limited to a period of thirty (30) days; or (y) arising from the obligations assumed in SPA Vérios, provided that limited, under any circumstance, to twelve million reais (R$12,000,000.00);

 

(vii)

approval of the corporate acts that imply waiver and/or restriction of the rights, considering a single act or operation or a number of related acts or operations;

 

(viii)

performance of any Withdrawal, except for the Authorized Withdrawals;

 

(ix)

signature, termination or amendment to any agreements entered into between the Easynvest Companies, the Easynvest Shareholders and/or any of the Related Parties;

 

(x)

performance of any payment or assumption of any debt or obligation on behalf of any Easynvest Shareholder and/or any of the Related Parties thereof;

 

(xi)

reduce or extend the term for payment of any receivables or settle the obligations of the Easynvest Companies differently from the provisions set forth in the respective agreements;

 

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(xii)

any distribution of dividends, payment of interest on capital, bonuses, or any type of cash distribution, including any distribution and payment to the shareholders, by virtue of redemption, amortization, repurchase of shares and/or capital reduction of the Easynvest Companies;

 

(xiii)

any change in the financial and tax policies, except for the changes for purposes of compliance with the requirements resulting from the changes in applicable Laws in force;

 

(xiv)

change in the current contractual terms with the external auditor;

 

(xv)

creation of any type of Encumbrance in relation to any assets, properties or rights of the Easynvest Companies or the shares or quotas held by the Easynvest Companies, as applicable;

 

(xvi)

provision or concession of any guarantee to Third Parties or any Related Parties of the Easynvest Companies;

 

(xvii)

signature of any accord, instrument or agreement, orally or in writing, documented or not, between the Easynvest Companies and any third parties (including the Governmental Authorities), which would represent any significant restriction to the Businesses or any other activities performed by the Easynvest Companies, including, but not limited to, exclusivity, non-competition and/or non-competition with third parties;

 

(xviii)

signature, termination, cancellation, suspension or change, directly or indirectly, of any accord, instrument or agreement, orally or in writing, documented or not, between the Easynvest Companies and any third parties (including the Governmental Authorities), which represent obligations to any of the Easynvest Companies in an amount equivalent to or above ten thousand reais (R$10,000.00), or that would significantly impact the activities carried out by the Easynvest Companies. In the event such operations are carried out in the Normal Course of Business of the Easynvest Companies, the limit set forth herein shall be (a) one hundred thousand reais (R$100,000.00) per accord, instrument or agreement, and (b) one million reais (R$1,000,000.00) in the same period of thirty (30) days based on the sum of the accords, instruments or agreements;

 

(xix)

(a) increase, or announcement of increase, of the salaries/compensation, bonus, incentives, payments or any other type of benefit or compensation payable by the Easynvest Companies to any of the respective employees, executive officers, directors, consultants or service providers; and (b) signature of any collective agreement or any other agreement or accord that addresses the compensation of the Easynvest Companies’ employees, in both case, except if in the Normal Course of Business or as set forth in applicable Law in force;

 

(xx)

any amendment to the bylaws or articles of association of the Easynvest Companies, as applicable, except for the Corporate Reorganization;

 

(xxi)

increase or decrease of the Easynvest Companies’ capital, except for the capital increase in the amount of up to two million reais (R$12,000,000.00) relating to SPA Vérios, and provided that the capital increases resulted from the regulatory requirements set forth in applicable Law in force;

 

(xxii)

dissolution, liquidation or request for judicial or extrajudicial recovery, or declaration of self-bankruptcy of the Easynvest Companies, considering that, in the event the Investor has not expressly prohibited such acts during the Restriction Period, the Investor shall not refer to the provisions set forth in Clause 11.2(iv);

 

(xxiii)

any expenses incurred with marketing in an individual or combined value (more than one operation within the period of thirty (30) days) in an amount equivalent to or higher than four million and five hundred thousand reais (R$4,500,000.00);

 

(xxiv)

free settlement of any debt or third-party obligation with the Easynvest Companies, including any Related Party;

 

(xxv)

change of the fiscal year of any of the Easynvest Companies;

 

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(xxvi)

transfer, licensing, burden or concession of any rights or licenses of the Intellectual Property Rights owned by Easynvest;

 

(xxvii)

signature of any agreement, or filing of any appeal or claim in connection with any dispute involving the Easynvest Companies or any asset, property or right relating to the Easynvest Companies, (a) except for the Normal Course of Business; and/or (b) limited to one hundred thousand reais (R$100,000.00) in the total during the period of thirty (30) days;

 

(xxviii)

any promise or commitment to undertake any of the acts set forth in this Clause 5.10.

5.11.    Exceptions. The Parties agree that the following shall not be deemed acts, actions and/or resolutions subject to the limitation set forth in Clause 5.10 and, therefore, shall not be subject to any previous approval by the Investor: (i) the provisions set forth in Clause 5.10(iii), in relation to the exercise of the stock options that shall be settled through the Closing Date, under the terms of the Easynvest Option Plan; and (ii) the provisions set forth in Clauses 5.10(v), 5.10(xv), in relation to the following acts, provided that carried out in the Normal Course of Business, as set forth in applicable Laws to which the Easynvest Companies are subject (including the Risk Management Guide of B3’s Settlement and Liquidation Chamber): (a) the acquisition, assignment, loan, transfer and/or disposal of the marketable securities; (b) the provision of guarantees by the Easynvest Companies in conformity with applicable Law in force to which the Easynvest Companies are subject to or, in addition, on behalf of the clients, provided that limited to thirty million reais (R$30,000,000.00).

5.12.    Approval by the Investor. The Investor may approve, on an extraordinary basis, the practice of any of the corporate acts described in Clause 5.10. The approval by the Investor shall always be granted in writing, within five (5) Business Days as from the delivery of the request in writing, under the terms set forth in Clause 13.1. Such approval shall not be refused, postponed or bound to any condition without any reasonable reason. In the event the Investor is not able to respond during the abovementioned period, the Easynvest Companies may perform the respective act, provided that the performance of such act is not considered a violation of the obligations set forth in this Agreement.

5.13.    Access to Information. As from the Signature Date and through the Closing Date or termination of this Agreement (inclusive), exclusively for purposes of monitoring of the activities of the Easynvest Companies, preparation of the Closing and verification of the performance by the Easynvest Companies and the Easynvest Shareholders of the obligations relating to the conduction of the abovementioned businesses, and always in conformity with the criteria and limitations imposed by the applicable Laws in force, the Easynvest Shareholders shall ensure that the Easynvest Companies: (i) grant, to the Investor and representatives thereof, access, during business hours, to the facilities, books and records, so that the Investor is able to begin the planning with respect to the synergies of the activities of the Easynvest Companies, and the operations of the Investor and its Affiliates; (ii) submit, as requested, on a reasonable basis, the financial, legal and operational information of the Easynvest Companies; and (iii) provide possible communication submitted by BACEN relating to the approval of the Corporate Reorganization. Similarly, the Parties agree that, as from the Signature Date to the Closing Date or termination of this Agreement (inclusive), Nu Holdings, the Investor and the Guarantor shall submit, on a monthly basis, to the Easynvest Shareholders, the copies of the same materials that are currently provided to the Nu Holdings’ shareholders qualified as major investors in the Nu Holdings’ corporate documents.

 

(i)

Independence. The Parties agree that, notwithstanding the provisions set forth in Clause 5.13 above, the Investor shall not have any management power, or influence over the management or administration of the Easynvest Companies before the Closing Date. In addition, the Parties and the Intervening Consenting Parties agree to not exchange sensitive information and that the Investor and the Guarantor, on one side, and the Easynvest Companies and the Easynvest Shareholders, on the other side, shall remain fully independent.

 

(i)

Confidentiality. The information obtained under the terms set forth in Clause 5.13 above shall be subject to the rules set forth in Clause 10.1, and shall not be used for purposes other than those provided for in this Agreement.

 

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6.    CLOSING

6.1.    Closing. The effective and valid implementation and completion of the Operation (“Closing”) shall take place within fifteen (15) days counted as from the performance (or waiver, as applicable) of the last of the Suspensive Conditions, as informed by any of the Parties, which shall be preferably on the last day of the respective month, or on any other date as jointly agreed by the Parties (“Closing Date”), at the head office of law firm Pinheiro Neto Advogados, at Rua Hungria, 1100, or any other location jointly agreed by the Parties.

6.2.    Closing Acts. In the Closing, the Parties shall perform and ensure the performance of the following acts (“Closing Acts”):

 

(i)

delivery, by the Easynvest Shareholders to the Investor, of the statement in writing declaring that: as set forth in Clause 7.5, (i) the Essential Representations and Guarantees provided by the Easynvest Shareholders are true, correct and complete, in all material respects, on the Closing Date, except for the representations and guarantees in relation to any specific date (which shall remain true, correct and complete, in all material respects, on such date); (ii) the other representations and guarantees provided by the Easynvest Shareholders in conformity with the provisions set forth in Clauses 7.1 and 7.2 are true, correct and complete, in all material respects, on the Closing Date, except for the representations and guarantees in relation to any specific date (which shall remain true, correct and complete, in all material respects, on such date); and (iii) the Parties’ Suspensive Conditions, under the terms set forth in Clause 5.1, and the Investor’s Suspensive Conditions described in Clause 5.3, were complied with or waived, however the case may be;

 

(ii)

delivery, by the Investor to the Easynvest Shareholders, of the statement in writing declaring that: as set forth in Clause 7.5, (i) the Essential Representations and Guarantees provided by the by the Investor, Nu Holdings and the Guarantor are true, correct and complete, in all material respects, on the Closing Date, except for the representations and guarantees in relation to any specific date (which shall remain true, correct and complete, in all material respects, on such date); (ii) the other representations and guarantees provided by the Investor, Nu Holdings and the Guarantor in conformity with the provisions set forth in Clauses 7.3 and 7.4 are true, correct and complete, in all material respects, on the Closing Date, except for the representations and guarantees in relation to any specific date (which shall remain true, correct and complete, in all material respects, on such date); and (iii) the Parties’ Suspensive Conditions, under the terms set forth in Clause 5.1, and the Easynvest’s Suspensive Conditions described in Clause 5.2, were complied with or waived, however the case may be.

 

(iii)

Termination of agreements. The Easynvest Shareholders’ Agreements and the Pledge Agreement shall be terminated by the Easynvest Shareholders, subject to full, general, complete and irrevocable settlement of any outstanding obligation to the Easynvest Companies, the Investor and any of the Affiliates, in which case the respective Encumbrances imposed on any shares and/or quotas of the Easynvest Companies shall be cancelled.

 

(iv)

Payment of the Closing Acquisition Price. In conformity with the provisions set forth in Clause 4.2(ii)(1) and Clause 6.4, the Investor shall perform the full payment of the Closing Acquisition Price, in cash, on the Closing Date, upon transfer of the immediately available funds to the bank accounts of the Easynvest Shareholders, considering the amounts and proportions described in Clause 3.4.

 

(v)

Issuance of the Nubank Shares. As set forth in Clause 4.2(ii)(1) and Clause 6,4, Nu Holdings shall issue the Nubank Shares, as well as register the ownership on behalf of the Easynvest Shareholders, upon the Payment of the Nubank’s Shares by the Easynvest Shareholders, under the terms set forth in item (vii) below, including the adoption of all applicable and necessary measures to ensure the effective transfer and registry of the ownership of the Nubank Shares on behalf of the Easynvest Shareholders.

 

(vi)

Investment Documents of Nubank’s Shares. As set forth in Clause 4.2(ii)(1) and Clause 6.4, the following documents shall be signed on the Closing Date: (i) Series F-2 Preferred Share Purchase Agreement, mainly under the terms set forth in the draft included in the form of “Annex 6.2(vi)(1)”, (ii) Investor’s Right Agreement mainly under the terms set forth in the draft included in the form of “Annex 6.2(vi)(2)”, and (iii) Shareholders’ Agreement, mainly under the terms set forth in the draft included in the form of “Annex 6.2(vi)(2)” (collectively, the “Investment Documents of Nubank’s Shares”). Similarly, Nu Holdings shall deliver to the Easynvest Shareholder the 10th Amended and Restated Memorandum and Articles of Association, mainly under the terms set forth in the draft included in the form of “Annex 6.2(vi)(4)”, valid and in effect.

 

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(vii)

Payment of the Nubank Shares. Each of the Easynvest Shareholders shall perform the payment relating to the payment of the Nubank Shares, in US dollar, as set forth in Clause 4.2(ii)(1) of this Agreement.

 

(viii)

Transfer of the Easynvest Shares. The signature of the terms for the transfer of the shares in the Transfer Book of Registered Shares of Easynvest Participações, Easynvest Holding Financeira, the Broker and Easycred, if applicable, reflecting the transfer of the Easynvest Shares by the Easynvest Shareholders to the Investor, and the registry, in the Registry Book of Registered Shares of Easynvest Participações, Easynvest Holding Financeira, the Broker and Easycred, if applicable, of the Easynvest Shares on behalf of the Investor.

 

(ix)

Resignation and Settlement. Delivery of the resignation and settlement terms of the directors and executive officers of the Easynvest Companies mentioned in “Annex 6.2(ix)(1)” in relation to the respective positions, under the terms set forth in the draft attached hereto in the form of “Annex 6.2(ix)”.

 

(x)	Election of the new members. Election and signature of all documents deemed necessary so that the persons indicated by the Investor are appointed and elected as the Executive Officers of the Easynvest Companies.

 

(xi)	Revocation of proxies. Through the Closing Date, except if otherwise expressly indicated by the Investor, the Easynvest Shareholders shall provide to the Investor the confirmation of the revocation of all public or private proxies granted by the Easynvest Companies, as described in “Annex 6.2(xi)”.

 

(xii)

Corporate and accounting books. The Easynvest Shareholders shall deliver to the Investor all corporate books, reflecting the ownership of the Easynvest Shareholders with respect to the Easynvest Shares, and the accounting books of the Easynvest Companies.

 

(xiii)

Charge over Shares in Nu Holdings Ltd. and Purchase Deed. Signature of the Charge Over Shares in Nu Holdings Ltd., included herein in the form of Annex 6.2(xiii)(1), whereby the Easynvest Shareholders shall pledge the percentages indicated in “Annex 6.2(xiii)(2)” of the Nubank Shares on behalf of the Investor in order to guarantee any Losses in connection with this Agreement and that have been incurred by any Investor Indemnified Party (“Charge Over Shares in Nu Holdings Ltd.”).

 

(xiv)

Approval of the Accounts. The Easynvest Shareholders shall present to the Investor the following corporate acts approving the management accounts for the year ended 2019, base date of August 31, 2020, of the Easynvest Companies, duly registered with JUCESP.

 

(xv)

Related Parties’ Obligations. Except for the provisions set forth in “Annex 6.2(xv)”, on the Closing Date, there shall be no instruments, agreements or accords in effect, or outstanding obligations, between the Easynvest Companies, on one side, and/or any Related Parties, on the other side. All accords, agreements, amendments, current accounts, loans and other obligations between the Easynvest Companies and any of the Related Parties, documented or not, have been duly settled, without resulting, from the settlement of these obligations, in any contingency or negative impact against the Easynvest Companies or the Investor, including any accounting, tax, labor or social security contingency or impact.

 

(xvi)

Certificate of Withdrawals. The Easynvest Shareholders shall deliver a certificate to the Investor informing the Withdrawals and/or Authorized Withdrawals between August 31, 2020 and the Closing Date, including a detailed description of the nature and corresponding values.

 

(xvii)

Other Measures. The Parties shall enter into any other documents and shall undertake any and all measures deemed necessary or convenient to perform the Closing and the implementation of the Operation as set forth herein.

6.3.    Concurrent Acts in the Closing. As set forth in Clause 4.2(ii)(1) and Clause 6.4, all acts and events set forth in this Chapter 6 shall be considered as concurrently performed, in which case the omission of any of these acts shall invalidate all other acts, in which case, the Parties shall enter into any and all documents, as well as undertake any act to reverse such act to the previous condition, including, but not limited to, the immediate return of any amounts eventually transferred by the Investor for the payment of the Closing Acquisition Price, taking into account that, in the event such transfer is not performed on the same day, the Adjustment for Inflation shall be applied on the amount transferred through the effective date of return of the funds to the Investor, without prejudice to the application of the other fines set forth in this Agreement. In addition, the Parties agree that no act or event of the Closing shall be deemed valid until performance of all Suspensive Conditions (or otherwise lawfully waived).

 

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6.4.    Closing, at the Investor’s discretion, and violation of the Closing Acts by the Easynvest Shareholders. As set forth in Clause 6.4.1 below, in the event of non-payment of the Payment of the Nubank’s Shares by any of the Easynvest’s Shareholder, the Investor may perform, however is not obligated to, the Operation Closing upon the payment of the Closing Acquisition Price to the Easynvest Shareholders as set forth in this Agreement, although all Closing Acts have not been performed, in conformity with the provisions set forth in this Agreement. In this case, the event of default, for all purposes and effects of this Agreement, shall be deemed realized and (1) the Investor (a) shall maintain all rights and assumptions set forth in this Agreement against the Easynvest Shareholders that have violated the obligations of Payment of the Nubank’s Shares, without considering the Closing as a novation or any change in the commitments and obligations set forth in this Agreement; (b) shall be the sole and exclusive holder of the Easynvest Shares, without any Encumbrances, including all rights inherent thereto, upon the signature of the respective transfer terms, under the terms set forth in Clause 6.2(viii); and (c) the Easynvest Shareholders that have not performed any of the Closing Acts shall be subject to (aa) the obligation to perform such acts and commitments, under the terms set forth in this Agreement, and (bb) the fines set forth in this Agreement, including, but not limited to, the provisions set forth in Clause 4.2(ii)(1), not subject to any additional notice by the Investor in this regard, except if otherwise set forth in Clause 4.2(ii)(1); and (2) (aa) Nu Holdings shall not issue the Nubank Shares to the respective Shareholder until the Payment of the Nubank’s Shares has been performed in the bank account of Nu Holdings, under the terms set forth in “Annex 4.2(ii)(2)”, limited to, under any circumstance, to the term of twenty (20) days counted as from the termination of the Resolution Term (except in the event of Atlas or any Advent Affiliate, in which case the term shall be counted as from the Closing Date), in which case the Easynvest Shareholder that has not performed the obligation of Payment of the Nubank’s Shares shall no longer be entitled to the right to subscribe the Nubank Shares, at the Investor’s discretion, under the terms set forth in Clause 4.2(ii)(1), and (bb) the Investment Documents of Nubank’s Shares shall not be signed, until the respective Easynvest Shareholder has performed the Payment of the Nubank’s Shares. For purposes of clarification, the provision set forth in this Clause 6.4 shall not be applicable to the Easynvest Shareholder that has complied with the respective obligations, as set forth in this Agreement, on the Closing Date.

6.4.1    The Investor shall not be entitled to the right to not perform the Closing, under the terms set forth in Clause 6.4 above, in the event Atlas (or any Advent Affiliate) has performed the payment, in which case the Closing shall be performed as set forth in this Agreement, regardless of the default by the other Easynvest Shareholders, without prejudice to the applicable procedures and fines, under the terms of this Clause 4.2(ii)(1) and Clause 6.4, to the Easynvest Shareholders that have not complied with the obligation of Payment of the Nubank’s Shares.

6.5.    Proxy for Transfer of Shares. As set forth in Clause 6.2(viii) and Clause 6.4 above, subject to the effective payment of the Closing Acquisition Price, the Easynvest Shareholders appoint, on an unconditional and irrevocable basis, the Investor as the attorney-in-fact thereof, under the terms set forth in article 684 of the Civil Code, regardless of the authorization of or consultation to the Easynvest Shareholders, to represent the Easynvest Shareholders, inclusive in the signature of the transfer term and other documents deemed necessary to the documentation of the Acquisition of the Easynvest Shares on the Closing Date, as well as undertake all other necessary acts for purposes of performance of the provisions set forth in this Clause, including the signature of any documents prepared for purposes of compliance with any requirement relating to the registry of the corporate acts set forth in this Agreement. The Easynvest Companies and the executive officers thereof agree to perform, on the Closing Date, all applicable acts for the performance of such transfer, and the Easynvest Shareholders agree to undertake all necessary acts in order to ensure that the Easynvest Companies are able to perform the transfer.

7.    REPRESENTATIONS AND GUARANTEES

7.1.    Representations and guarantees of the Easynvest Shareholders before each other and the Agreement. The Easynvest Shareholders, individually and not jointly, acknowledge and ensure to the Investor that the representations and guarantees provided in “Annex 7.1” are true, complete and correct as of the date hereof and on the Closing Date, in all material respects.

7.2.    Representations and guarantees of the Easynvest Shareholders before the Easynvest Companies. The Easynvest Shareholders, individually and not jointly, acknowledge and ensure to the Investor that the representations and guarantees provided in “Annex 7.2” are true, complete and correct as of the date hereof and on the Closing Date, in all material respects.

 

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7.3.    Representations and guarantees of the Guarantor before Nu Holdings and the Investor. The Investor acknowledges and ensures to the Easynvest Shareholders that the representations and guarantees provided in “Annex 7.3” are true, complete and correct as of the date hereof and on the Closing Date, in all material respects.

7.4.    Representations and operational guarantees of the Investor before the Guarantor, Nu Holdings and the Investor. The Investor acknowledges and ensures to the Easynvest Shareholders that the representations and guarantees provided in “Annex 7.4” are true, complete and correct as of the date hereof and on the Closing Date, in all material respects.

7.5.    Update of the Disclosure Letter. To the extent that any subsequent fact or circumstance takes place after the Signature Date, and provided that the occurrence of such fact or circumstance has not resulted from the violation of the obligations described in Clause 5.10, (i) by the Easynvest Shareholders, under the terms set forth in Clauses 7.1 and 7.2; or (ii) by the Investor, under the terms set forth in Clauses 7.3 and 7.4; and before the Closing Date, which would represent a change to the respective representation and guarantee, or any section of the Disclosure Letter or inclusion of a new section of the Disclosure Letter (in the event of absence of any original section), the Easynvest Shareholders or the Investor, however the case may be, may update the respective sections of the Disclosure Letter, so that these sections are true and correct, in all material respects, on the Closing Date.

8.    INDEMNITY OBLIGATIONS

8.1.    Responsibility of the Easynvest Shareholders. As set forth in this Clause 8.1, the Easynvest Shareholders, in conformity with the proportions described in Clause 8.2, shall indemnify, protect, exempt and hold harmless the Investor and, after the Closing, the Easynvest Companies, the Affiliates thereof (including, but not limited to, Nu Holdings), as well as the respective shareholders, executive officers, directors, employees, and authorized successors and assignees (“Investor Indemnified Party”), for Losses incurred and/or suffered by an Investor Indemnified Party, provided that exclusively related to the following acts:

 

(i)

false, omitted, incorrect, inaccurate or violated representations and guarantees provided under the terms set forth in Clauses 7.1 and 7.2 above. The Easynvest Shareholders acknowledge and agree that any condition set forth in the representations and guarantees provided for in Clauses 7.1 and 7.2 above (including materiality, knowledge and similar conditions) shall be disregarded for the purposes of this Clause 8.1, provided that, for the purposes set forth in this Clause 8.1, the representations and guarantees provided in such Clauses shall be read as if the conditions were not written;

 

(ii)	total or partial non-compliance with the obligations, covenants and commitments assumed by the Easynvest Shareholders or the Easynvest Companies in this Agreement and/or any other document expressly referred to in this Agreement as part of the Operation;

 

(iii)

acts, facts, events and omissions relating to the Easynvest Companies, or the respective activities thereof, which generating event has taken place through (inclusive) the Closing Date, regardless of being reflected in the Annexes hereto or the Disclosure Letter, or informed to the Investor (inclusive in the context of the audit conducted by the Investor in the Easynvest Companies);

 

(iv)

implementation of the Corporate Reorganization and acquisition of Vérios (regardless of the closing of the acquisition of Vérios to be performed before or after the Closing Date) in the event that, in relation to the acquisition of Vérios, an Investor Indemnified Party is not able to receive the applicable indemnities, as set forth in SPA Vérios;

 

(v)

liabilities or contingencies relating to the Easynvest Shareholders and/or Affiliates thereof (except for the Easynvest Companies before the Closing), including, but not limited to, Startz Tecnologia e Comunicação Ltda., which may be required by any Investor Indemnified Parties, if deemed jointly responsible for such liability or contingency under applicable Law in force.

 

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8.2.    Individual or Proportional Indemnity Responsibility. The Parties agree that the obligation assumed by the Easynvest Shareholders to indemnify an Investor Indemnified Party shall be:

 

(i)

individually, and not jointly, in relation to the eventually payable indemnities (a) under the terms set forth in Clauses 8.1(ii) and 8.1(v) above, in which case each of the Easynvest Shareholders shall respond individually for the possible violation of the obligations or contingencies, under the terms set forth in this Agreement; and (b) in relation to the respective individual representations, under the terms set forth in Clause 8.1(1);

 

(ii)

proportionally, according to the percentages described in Annex 8.2(ii), (a) in relation to the indemnities under the terms set forth in Clause 8.1(ii), solely with respect to the violation of the obligations by the Easynvest Companies; (b) in relation to the indemnities under the terms set forth in Clause 8.1(iv); and (c) in relation to the indemnities payable under the terms set forth in Clause 8.1(i), in relation to the representations and guarantees provided in relation to the Easynvest Companies, and Clause 8.1(iii).

8.3.    Limitations of the Indemnity Obligations. The obligation assumed by the Easynvest Shareholders to indemnify an Investor Indemnified Party in conformity with Clause 8.1 shall be subject to the following rules:

 

(i)

De Minimis. The Easynvest Shareholders shall solely indemnify any Loss if and when the individual value of such Loss (or in conjunction with similar matters related to the same event or cause) exceeds the amount of ten thousand reais (R$10,000.00) (“De Minimis”). For purposes of clarification, no Loss, which individual value is below the De Minimis, shall be indemnified under the terms set forth in Clause 8.1 hereof.

 

(ii)

Basket. The Investor Indemnified Party shall not be entitled to any indemnity until the total value of indemnifiable Loss payable by the Easynvest Shareholders exceeds the total value of one million and five hundred reais (R$1,500,000.00) (“Basket Amount”). When the Basket Amount is exceeded, the Investor Indemnified Party may recover all Losses, considering the first Real, in which case the payment shall be performed each time the total accumulated Losses has achieved the value of the Basket Amount. The Parties agree that, although the Basket Amount has not been achieved, the Investor Indemnified Parties shall recover all Losses, considering the first Real, after the first (1st) anniversary of the Closing Date, which procedure shall be adopted on an annual basis, in the event the Basket Amount has not been achieved in such period.

 

(iii)

Cap. Notwithstanding any opposite provision set forth in this Agreement, the maximum indemnity value requested by the Investor Indemnified Parties shall be limited to the value of one hundred million reais (R$100,000,000.00) (“Cap”), except for the Losses arising from default or bad faith of the Easynvest Shareholders or violation of the Essential Representations of the Easynvest Shareholders, in which case the Cap shall be equivalent to the Closing Acquisition Price. For purposes of clarification, in the event any Investor Indemnified Party has incurred any Loss arising from default or bad faith of the Easynvest Shareholders or violation of the Essential Representations of the Easynvest Shareholders, the value payable to the Investor (i) shall not be calculated for purposes of achievement of the Cap, and (ii) under no circumstance, including the Losses calculated for purposes of Cap, the maximum indemnity value payable by each Easynvest Shareholder shall exceed the Closing Acquisition Price effectively received by the respective Easynvest’s Shareholder.

 

(iv)

Proportionality to the Closing Date. In the event the Investor or any Investor Indemnified Party incurs any indemnifiable Loss under the terms set forth in Clause 8.1, which generating event has taken place before the Closing Date and has been maintained after the Closing Date, the indemnity payable by the Easynvest Shareholders for such Loss shall always be proportional to the period up to the Closing Date (inclusive).

 

(v)

Time. The obligation to indemnify assumed by the Easynvest Shareholders, as determined under the terms set forth in Clause 8.1, shall remain valid for three (3) years as from the Closing Date, except for Losses relating to any tax and/or social security matters relating to the Easynvest Option Plan and/or the Easynvest’s Phantom Share Plan and/or the Carlos Option Agreement, considering the term of six (6) years as from the Closing Date. For purposes of clarification, the indemnity obligations of the Easynvest Shareholders for any Loss in relation to which an Indemnity Notice or Third Party’s Indemnity Notice has been delivered before the end of the respective survival term shall remain valid to the final resolution of the indemnity under discussion.

 

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(vi)	Adjustment to Inflation. De Minimis, Basket Amount and Cap shall be subject to Adjustment for Inflation, on an annual basis, as from the Signature Date.

 

(vii)

Fine and Interest in Arrears. The interest in arrears imposed on the payment of the indemnities within the terms set forth herein shall subject the Easynvest Shareholders to the payment of the respective indemnity, plus fine of two percent (2%) on the outstanding and unpaid amount, in addition to the Adjustment for Inflation based on the positive variation of the IPCA rate (from the payment date of the respective Loss to the effective payment date) and interest in arrears of one percent (1%) per month (from the payment date of the respective Loss to the effective payment date). For purposes of clarification, the fine and adjustment for inflation referred to herein are not applicable in the event any amounts are not payable by virtue of any inquiry of the amount or obligation, provided that such inquiry has been reasonable submitted in good faith, in conformity with the legal procedures set forth in this Agreement. Accordingly, the charges set forth herein shall solely be applied if, as from the date such inquiry has been duly resolved, according to the procedures established under the terms set forth in this Agreement, the Parties have not complied with the payment obligations.

8.4.    Investor’s Responsibility. As set forth in this Clause 8.4, specifically in relation to the limitations set forth in Clause 8.5, the Investor, Nu Holdings and the Guarantor shall be jointly responsible to indemnify the Easynvest Shareholders, the Affiliates thereof, as well as the respective shareholders, executive officers, directors, employees, and successors and authorized assignees (“Easynvest Indemnified Party”), for the Losses incurred and/or suffered by the Easynvest Shareholders or any Easynvest Indemnified Party by virtue of:

 

(i)

false, omitted, incorrect, inaccurate or violated representations and guarantees provided under the terms set forth in Clauses 7.3 and 7.4 above, considering any condition set forth in the representations and guarantees provided for in Clauses 7.3 and 7.4 above (including materiality, knowledge and similar conditions) shall be disregarded for the purposes of this Clause 8.4, provided that, for the purposes set forth in this Clause 8.4, the representations and guarantees provided in such Clauses shall be read as if the conditions were not written;

 

(ii)	total or partial non-compliance with the obligations assumed by the Investor, Nu Holdings or the Guarantor in this Agreement and/or any other document expressly referred to in this Agreement as part of the Operation;

 

(iii)

liabilities or contingencies relating to the Investor, Nu Holdings and/or Affiliates thereof, which may be required directly by any Easynvest Indemnified Parties (excluding, under any circumstance, any indirect Losses or Losses arising from the fact that the Easynvest Shareholders became the shareholders of Nu Holdings and/or upon verification of indemnifiable Losses by the Easynvest Shareholders under the terms set forth in Clause 8.1), in the event the Easynvest Shareholders are deemed jointly responsible for such liability or contingency under applicable Law in force.

8.5.    Limitations of the Indemnity Obligations. Notwithstanding anything to the contrary in this Agreement, the indemnification obligations assumed by Investor shall be subject, mutatis mutandis, to the provisions of Clause 8.3, above.

 

(i)

Fine and Interest in Arrears. The interest in arrears imposed on the payment of the indemnities within the terms set forth herein shall subject the Investor, Nu Holdings and the Guarantor, on a jointly basis, to the payment of the respective indemnity, plus fine of two percent (2%) on the outstanding and unpaid amount, in addition to the Adjustment for Inflation based on the positive variation of the IPCA rate (from the payment date of the respective Loss to the effective payment date) and interest in arrears of one percent (1%) per month (from the payment date of the respective Loss to the effective payment date). For purposes of clarification, the fine and adjustment for inflation referred to herein are not applicable in the event any amounts are not payable by virtue of any inquiry of the amount or obligation, provided that such inquiry has been reasonable submitted in good faith, in conformity with the legal procedures set forth in this Agreement. Accordingly, the charges set forth herein shall solely be applied if, as from the date such inquiry has been duly resolved, according to the procedures established under the terms set forth in this Agreement, the Parties have not complied with the payment obligations.

 

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8.6.    Procedure for Direct Indemnity between the Parties. In the event any Party (“Indemnified Party”, which means the Easynvest Indemnified Parties or the Investor Indemnified Parties, however the case may be) is entitled to the right to request a direct indemnity (“Direct Claim”) from the Easynvest Shareholders, or the Investor, Nu Holdings or the Guarantor, however the case may be (“Indemnifying Party”), the payment of the amounts due by the Indemnifying Party shall be performed according to the procedures set forth in this Clause 8.6 and subitems.

 

(i)

The Indemnified Party shall notify the Indemnifying Party, informing, in reasonable detail, the reasons based on which the Indemnified Party believes to have incurred or suffered any Loss, and shall attach to the notice all documents and information that support such understanding (“Indemnity Notice”). The Indemnifying Party shall, within thirty (30) days as from the receipt of the Indemnity Notice, respond to the notice, in writing, informing to the Indemnified Party if and to what extent: (a) the Indemnifying Party agrees with the responsibility for the payment of the Loss under discussion; or (b) the Indemnifying Party does not agree with the responsibility for the payment of the Loss under discussion. Whenever the Indemnifying Party has submitted a notice informing the disagreement with the responsibility for the payment of the Loss, the Parties shall meet, within the following ten (10) Business Days, to achieve, in good faith, an agreement with respect to the claim relating to such Loss. In the event the Parties are not able to achieve an amicable agreement with respect to the responsibility for the payment of the Loss, the Indemnified Party may file an arbitration proceeding, under the terms set forth in this Agreement. The arbitration award shall be final and binding to the Parties. In the event the Indemnifying Party has failed to submit any comment within thirty (30) days as from the receipt of the Indemnity Notice, the Indemnifying Party shall be deemed to have fully accepted the responsibility for the Loss.

 

(ii)

The Loss by the Indemnifying Party to the Indemnified Party shall be paid within, at most, fifteen (15) Business Days from the (a) submission of the response to the Indemnity Notice, in the event the Indemnifying Party agrees with the responsibility for the payment of the Loss or has not submitted any comment within the term defined in Clause 8.6(i) above; or (b) amicable agreement entered into by the Parties; or (c) final arbitration award attributing the responsibility for the payment of the Loss to the Indemnifying Party, whichever takes place firstly.

8.7.    Indemnity Procedure for Third-party Claims. In the event any Claim that could generate an indemnifiable Loss under the terms set forth in Clauses 8.1 or 8.4, however the case may be, is filed against any Indemnified Party by a Third Party (“Third-party Claim”), the Indemnified Party shall notify the Indemnifying Party (“Third Party’s Indemnity Notice”) so that the Indemnifying Party becomes aware of such Claim and, in this case, files the respective appeal, provided that, in relation to those cases in which the Claim involves the Easynvest Companies, the Broker shall notify the Indemnifying Party and the Indemnified Party under the terms set forth herein. The procedure defined in this Clause 8.7 shall not be applicable to the Third-party Claims in progress on the Closing Date, considering that, in relation to such Third-party Claims, (i) the Easynvest Shareholders shall be, as of the date hereof, notified, upon the signature of this Agreement, with respect to the indemnity obligation for possible Losses arising from such Third-party Claims, as set forth in this Agreement; and (ii) the appeal shall be filed by the Easynvest Companies, without prejudice of the responsibility attributed to the Easynvest Shareholders for all Losses related to such Third-party Claims. The Third Party’s Indemnity Notice shall be submitted in the shortest period between (i) ten (10) Business Days counted as from the communication of the Third-party Claim under discussion; or (ii) the period equivalent to one third (1/3) of the legal term defined for response or appeal of such Claim.

 

(i)

The omission or delay of any Indemnified Party to deliver the Third Party’s Indemnity Notice, on a timely basis, shall release the Indemnifying Party from the indemnity obligations under the terms of this Chapter 8 in relation to the applicable Third-party Claim to the extent that such omission or delay has significantly impacted the defense in the Third-party Claim.

 

(ii)	The Third Party’s Indemnity Notice shall include a copy of all documents eventually received by the Indemnified Party (or to whom the Third Party’s Indemnity Notice shall be submitted, however the case may be) in relation to the Claim under discussion.

 

(iii)

The Indemnifying Party shall respond to the Indemnified Party (or to whom the Third Party’s Indemnity Notice shall be submitted, however the case may be) with respect to the decision to assume or not the defense against the Claim within the shortest term between: (a) five (5) days counted as from the receipt of the Third Party’s Indemnity Notice; or (b) the period equivalent to one third (1/3) of the legal term defined for response or appeal of the Claim. In the event the Indemnifying Party has not issued any comment within the abovementioned term or in the event the Indemnifying Party has refused to assume the defense of such Claim, the Indemnified Party (or to whom the Third Party’s Indemnity Notice shall be submitted, however the case may be) shall conduct the defense. In the event the Third-party Claim is conducted by the Indemnified Party (or to whom the Third Party’s Indemnity Notice shall be submitted, however the case may be), the Indemnified Party (or to whom the Third Party’s Indemnity Notice shall be submitted, however the case may be) shall assume all costs (including legal costs, attorneys’ fees, expenses and costs of appeal), which amounts shall be included in the value of the Loss if and when the indemnity is payable under the terms set forth in this Chapter 8.

 

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(iv)

In the event the Indemnifying Party assumes the defense of the Claim, the Indemnified Party shall cooperate with the Indemnifying Party in all requests reasonably presented, including the access, however the case may be, to the information and documents deemed necessary to the preparation of the defense, as well as the grant of specific proxies to a law firm with expertise in the subject matter of the Third-party Claim indicated by the Indemnifying Party for defense of the Claim. The representatives of the Indemnifying Party shall submit all information reasonably requested by the Indemnified Party in connection with the defense of the Claim under discussion, including a copy of the main court records, in which case the Indemnified Party shall be entitled to the right, at its expenses, to monitor the progress of the lawsuits referred to in this Clause 8.7, including the appointment, at its own expenses, of lawyers to monitor the work performed by the attorneys-in-fact indicated by the Indemnifying Party.

 

(v)	Except for the cases that the Indemnifying Party has elected to conduct the defense of the Third-party Claim, the Indemnified Party shall be obligated to, on a diligent and professional basis, to conduct and control, through skilled and experienced lawyers, the defense of the Third-party Claim.

 

(viii)

Under any circumstance, the Indemnifying Party shall prevent that any Third-party Claim relating to the Losses subject to indemnity under the terms set forth herein results in the pledge of any relevant property, right or asset owned and/or held by the Indemnified Party or the Easynvest Companies that would prevent or limit the daily and normal conduction of the operations of the Indemnified Party and/or the Easynvest Companies, in which case the Indemnifying Party agrees to perform the judicial deposit or provide the pledge, offer another guarantee that is deemed acceptable by the proper Governmental Authority or undertake any other necessary measure to prevent any restriction to the properties or activities of any Indemnified Party and/or the Easynvest Companies, which would prevent or limit the daily and normal condition of the operations of the Indemnified Party and/or the Easynvest Companies. In the event the Indemnifying Party has failed to comply with the obligations, the Indemnified Party may perform the deposit and/or provide the guarantee, and the respective costs shall be deemed Losses subject to indemnity, under the terms set forth in this Agreement.

 

(ix)

Entering into Settlement Agreement. In the event the Defense of the Third-party Claim is conducted by the Indemnified Party, the Indemnified Party shall not enter into any agreement, waiver, reorganization, transaction, adhesion to any amnesty program or payment in installment relating to any Taxes or similar acts (“Settlement Agreement”) in relation to the Third-party Claim without the previous and express consent of the Indemnifying Party. In the event the Defense of the Third-party Claim is conducted by the Indemnifying Party or certain contingency, not materialized, is confessed in the context of a Settlement Agreement, the Indemnifying Party shall request the previous consent of the Indemnified Party to sign any Settlement Agreement, considering that such consent shall not be denied in the event such Settlement Agreement (i) implies the irrevocable and unconditional settlement of the counterparty, (ii) does not involve any confession of default, (iii) does not represent any risk to the image of the respective Indemnified Party and Affiliates thereof, and (iv) does not represent any unfavorable precedent against the Indemnified Party.

 

(vi)

Payment of Losses. The amount relating to the indemnity obligation arising from any Third-party Claim shall solely be paid by the Indemnifying Party to the Indemnified Party within fifteen (15) Business Days as from the final decision or arbitration award, not subject to appeal; or judicial agreement or extrajudicial transaction that has been duly approved or signed, in which case such agreements shall comply with the provisions set forth in item (vi) of this Clause 8.7.

8.8.    Integral Recovery. Any indemnity determined under the terms set forth in this Chapter 8: (i) shall not be subject to the Taxes related thereto (that is, be added by the Taxes that the Indemnified Party may incur by virtue of the receipt of the indemnity); and (ii) shall cover any Loss effectively and directed incurred by an Indemnified Party, in which case the Indemnified Party shall return to the condition that the Indemnified Party would be if the Loss had not occurred.

 

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8.9.    Return of Amounts. The Parties agree that any amounts relating to the (i) costs that may be paid by the Indemnifying Party and, therefore, reversed on behalf of the Indemnified Party, including, but not limited to, reversal or release of the deposits and guarantees; (ii) amounts recovered before Third Parties, inclusive, however not solely the payment of the security coverage or indemnity paid by Third Parties, shall be fully returned by the Indemnified Party to the Indemnifying Party.

8.10.    Non-cooperating with Third-party Claims. The Parties and the Easynvest Companies agree to not denounce or induce, directly or indirectly, Third Parties to file, after the Closing Date, any Third-party Claim that could represent any Loss to be indemnified under the terms set forth in Clauses 8.1 or 8.4, however the case may be.

8.11.    Obligation to Reduce Losses. Upon occurrence of any Loss or any Third-party Claim, the Parties agree to undertake the best efforts to mitigate, in good faith and as possible, the Loss to be eventually indemnified by the Indemnifying Party, however the case may be, in conformity with the provisions set forth in this Agreement.

8.12.    Exclusive Remedy. The Parties agree that the provisions set forth in this Chapter 8 shall represent the sole and exclusive remedy of the Parties, except for default or fraud.

9.    NON-COMPETITION

9.1.    Non-competition. Each of the Easynvest Shareholders, except for the individuals indicated in “Annex 9.1”, during the period of two (2) years counted as from the Closing Date, agrees, as owner, shareholder, quota holder, Investor, partner, director, partner in joint venture, operator, consultant, executive officer or employee, to not develop, participate or invest in any activity included in any Restricted Business, in Brazil. The Easynvest Shareholders confirm that the payment of the Closing Acquisition Price is a fair and adequate compensation for purposes of compliance with the non-competition obligation set forth in this Clause 9.1.

 

(i)

Exception. Without prejudice to the abovementioned provisions, the violations of the provisions set forth in Clause 9.1 shall not include (a) the ownership of the marketable securities publicly traded, issued by the companies listed in any Brazilian stock exchange and that conduct the activities in the Restricted Business, provided that the respective Easynvest Shareholder holds an equity interest in such company in an amount that does not exceed five percent (5%) of the outstanding voting capital and the total capital of such company; provided that, although the respective Easynvest Shareholder solely holds such equity interest, such Easynvest Shareholder shall not hold the specific governance rights with respect to the company’s business or operations (including by means of the indication (individually or in conjunction with others, through shareholders’ agreement or voting agreement) of any management member); and/or (b) participation, on any account, of the current Easynvest Shareholders, in any Person that operates in the Restricted Business, however in which the revenues arising from the Restricted Business does not account for thirty percent (30%) of the annual income of the respective Person.

 

(ii)	Information on Atlas. [***].

 

(iii)

Fines. Upon occurrence of any violation of the obligations described in Clause 9.1, the Investor shall submit to the respective Easynvest Shareholder a notice including the information on such default, provided that the Easynvest Shareholder shall have thirty (30) days to resolve such default. In the event the default is not resolved within such period, and without prejudice to possible losses and damages, the non-compensatory fine shall be applied in the amount equivalent to fifteen thousand reais (R$15,000.00) per day of violation, limited to twenty million reais (R$20,000,000.00), or the amount received by the respective Easynvest Shareholder on the Closing Date, whichever is the lowest, except for Atlas, in which case the value per day shall be equivalent to seventy-five thousand reais (R$75,000.00), with a limit of one hundred million reais (R$100,000,000.00).

9.2.    Non-contracting of Employees. Each of the Easynvest Shareholders, during the period of two (2) years as from the Closing Date, agrees to, directly or indirectly, not contact, contract or employ, or otherwise enter into any service agreement or consulting agreement or similar instrument with any employee of the Easynvest Companies to act as the coordinator, executive officer, CEO, expert, manager or superintendent, in addition to the persons listed in “Annex 9.2” (collectively, the “Key Persons”). The Parties acknowledge and agree that the following activities shall not be considered as a violation of the non-contracting obligation: (i) the publication of general notices or other actions (including the contracting of recruiting firms) for the effective contracting of employees that are not exclusively directed to Key Persons; and (ii) the contracting of Key Persons after twelve (12) months from the termination of the relationship with the Easynvest Companies, provided that there is no request or influence over the Key Persons to terminate the relationship.

 

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10.    SPECIFIC OBLIGATIONS

10.1.    Confidentiality. The Parties and the Intervening Consenting Parties, themselves and by the representatives thereof (any executive officers, directors, employees, advisors, auditors, lawyers, consultants and/or contracted parties, on any account) agree to maintain strict confidentiality of the contents included in this Agreement and the Operation, as well as all private information provided by one Party to the other before the signature of this Agreement or during the effective period of the Agreement for purposes of performance of the transactions set forth herein (“Confidential Information”) for a period of two (2) years as from the Closing Date or termination date of this Agreement, whichever takes place firstly.

 

(i)

Any disclosure of Confidential Information shall solely be performed if agreed by all Parties, provided that Atlas is authorized to disclose the Confidential Information, as determined by applicable Law in force or to its Investors or advisors, in compliance with the obligations of disclosure of information, as set forth in the respective regulation. The Confidential Information, for the purposes of this Agreement, shall not include the information that: (a) was or may be disclosed to the public, provided that such disclosure has not violated any confidentiality obligation applicable to the Parties; or (b) is disclosed in compliance with legal provisions or as requested by the proper Governmental Authority, under the terms of applicable Law in force, provided that, in this case, the disclosing Party shall (x) immediately notify the owner of the Confidential Information so that the owner is able to adopt the necessary measures to lawfully prevent the disclosure; and (y) limit the disclosure of the Confidential Information to the extent deemed necessary for the compliance with the provisions set forth by applicable Law in force or as requested by proper Governmental Authority.

10.2.    Press Releases. The Parties shall not issue or disclosure any press release or communication related to this Agreement or the Operation without the previous approval in writing of the other Parties hereto, which approval shall not be denied or postponed without reasonable reason, except if the disclosure is otherwise required by applicable Laws or the proper Governmental Authority, in which case the Parties shall consult each other and undertake the best commercial efforts to include the comments of the other Party in such communication or disclosure.

10.3.    Notice of Certain Events. (i) The Easynvest Shareholders and the Easynvest Companies, on one side, and (ii) the Investor, Nu Holdings and the Guarantor, on the other side, agree to notify the other Party, as applicable and within a reasonable frequency, with respect to the following: (a) any notice or any other communication of any Person that alleged that the consent of such Person is or may be required in connection with the Operation set forth in this Agreement; (b) any notice or another communication of any Governmental Authority in relation to the Operation set forth in this Agreement; (c) any Claims or investigations relating to or that would involve or impact the Parties or this Agreement or the Operation; (d) any significant inaccuracy of any declaration or guarantee included in this Agreement (although the inaccuracy may have resulted by elapse of time or occurrence of new events), at any time, which could be reasonably expected to not comply with the conditions set forth in this Agreement; and (e) any act, event or circumstance that would prevent any of the Parties to comply or perform any obligation, condition or agreement to be performed or complied by the Parties, as set forth in this Agreement.

11.    TERMINATION

11.1.    Term. This Agreement shall become effective as of the date hereof and shall remain effective until compliance with all obligations set forth herein.

11.2.    Termination. Notwithstanding the irrevocable and unconditional nature, this Agreement may be terminated, at any time, before the Closing Date:

 

(i)	by an agreement in writing entered into by the Parties; or

 

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(ii)

by any of the Parties, in the event any Governmental Authority has issued, enacted or approved any Law, regulation, judgment, order, decision or decree, on a permanent basis, in effect and that is not reversed through the Deadline, which would make the Operation unlawful or otherwise would prevent the completion of the Operation, or would subject the approval of the Operation to the performance or compliance, however the case may be, with measures (in terms of structure or behavior), obligations or commitments that would impact the Investor’s original purposes with the completion of the Operation, in accordance, under any circumstance, with the provisions set forth in Clause 5.9; or

 

(iii)

by any of the Parties, in the event the Closing has not been performed through the Deadline, as set forth in Clause 5.6; or

 

(iv)

by the Investor, in the event the Easynvest Companies is subject to bankruptcy, reorganization, insolvency, liquidation or judicial or extrajudicial recovery (including extrajudicial intervention and liquidation, as set forth in Law 6,024, of March 13, 1974, and temporary administration system, in conformity with Decree Law 2,321, of February 25, 1987, in both cases, as amended or replaced from time to time); or

 

(v)

by the Easynvest Shareholders, in the event the Investor, Nu Holdings Ltd. or the Guarantor is subject to bankruptcy, reorganization, insolvency, liquidation or judicial or extrajudicial recovery (including extrajudicial intervention and liquidation, as set forth in Law 6,024, of March 13, 1974, and temporary administration system, in conformity with Decree Law 2,321, of February 25, 1987, in both cases, as amended or replaced from time to time); or

 

(vi)	by any of the non-defaulting Parties, in the event the other Party has significantly violated the obligations set forth in this Agreement, even after the term of thirty (30) days to resolve the default, without prejudice to the provisions set forth in Clause 14.6.

11.3.    For the purposes of clarification, it is hereby certain and agreed that the termination of this Agreement based on:

 

(i)

Items (i) and (ii) of Clause 11.2 above, shall occur on the date of signature of the agreement between the Parties, or the issuance, enactment or approval of a Law or order making it illegal or preventing the consummation of the Operation, as the case may be, regardless of a court order or arbitration award, or even upon conditioning the approval of the Operation to the fulfillment or compliance, as the case may be, with measures (structural or behavioral), obligations or commitments that compromise the Investor’s original objectives with the consummation of the Operation, subject, in any case, to the provisions of Clause 5.9, therefore waiving with any other measure.

 

(ii)	Item (iii) of Clause 11.2 above, shall occur on the date of sending a notice of termination by the innocent Party(ies) to the other Party(ies), regardless of court order or arbitration award, therefore waiving any other measure.

 

(iii)

Items (iv) and (v) of Clause 11.2 above, if exercised by the innocent Party, shall occur on the date of decree or occurrence of any of the events listed therein, regardless of a court or arbitration award determining the termination, therefore waiving any other measure.

 

(iv)

Item (vi) of Clause 11.2 above, shall occur by sending a notice of termination by the innocent Party to another Party. Upon sending the notice, in case the act, fact, event or circumstance giving rise to the right of termination may be remedied, the innocent Party shall grant the other Party(ies) a cure period of 30 (thirty) days, at the end of which, unless the Parties by mutual agreement decide otherwise, the innocent Party may choose to immediately terminate this Agreement or waive its right of termination based on the act, fact, event or circumstance in question.

11.4.    Effects of Termination. In the event of termination of this Agreement without the Operation being consummated, the Parties shall be released from completing the Operation, without prejudice to any losses and damages due by the infringing Party to the innocent Party, and all obligations of the Parties provided for in this Agreement shall be terminated, except for the obligations under Chapter 8 (Indemnification), Clause 10.1 (Confidentiality), Chapter 12 (Governing Law and Dispute Resolution), Chapter 13 (Notice) and Clause 14.15 (Commissions and Fees), which shall survive; provided, however, that the respective rights and obligations of the Parties with respect to any prior breach or failure to comply with this Agreement shall also survive any termination of this Agreement.

 

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11.5.    Cancellation of Acts due to Termination of this Agreement. If this Agreement is terminated as provided for herein, all filings, applications and other submissions related to the acts provided for herein and made before any Governmental Authority shall, to the extent possible, be cancelled. All other obligations under this Agreement shall no longer be binding upon any of the Parties, except that such termination shall not constitute a waiver by any of the Parties to any claim that it may have for damages caused by any reason, or mitigate any liability of any of the Parties for breach of this Agreement prior to its termination.

12.    GOVERNING LAW AND DISPUTE RESOLUTION

12.1.    Governing Law. This Agreement shall be governed by and construed pursuant to the laws of the Federative Republic of Brazil.

12.2.    Arbitration Clause. The Parties agree that any litigations, claims or disputes arising out of this Agreement and/or its Annexes and/or relating thereto, including any issues related to the existence, validity, effectiveness or performance of the Agreement, shall be mandatory, exclusive and ultimately submitted and resolved by arbitration to be conducted by the Arbitration and Mediation Center of the Brazil-Canada Chamber of Commerce – CAM-CCBC (“Arbitration Chamber”). The arbitration shall be established and processed in accordance with the Arbitration Chamber Regulation (“Arbitration Regulation”) and in compliance with Law No. 9,307/1996 (“Arbitration Law”). The Arbitration Court shall not have the power to settle disputes submitted to it by equity.

12.3.    Arbitration Court. The Arbitration Court (“Arbitration Court”) shall be composed of 03 (three) arbitrators, 01 (one) of them to be appointed by the claimant(s) and the other appointed by the respondent(s), pursuant to the Arbitration Regulation. The third arbitrator, who shall be the president of the Arbitration Court, shall be appointed by the 02 (two) arbitrators chosen by the parties to the arbitration, within 15 (fifteen) days of the appointment of the last arbitrator. If the parties to the arbitration do not appoint their respective arbitrators within the period stipulated by the Arbitration Chamber, or if the president of the Arbitration Court is not appointed by the co-arbitrators within a maximum period of 15 (fifteen) days from the appointment of the second arbitrator, the President of the Arbitration Chamber shall appoint the missing arbitrators pursuant to the Arbitration Regulation. In the event that there are multiple parties with different interests, which may not be combined as groups of claimants and/or respondents, the 03 (three) arbitrators shall be appointed by the President of the Arbitration Chamber, under the terms of the Arbitration Regulation.

 

(i)

In addition to the restrictions established under the Arbitration Regulation and the Arbitration Law, no member of the Arbitration Court may be an employee, representative, consultant or service provider (or former employee, former representative, former consultant or former service provider) of a part to the arbitration or any of its Related Parties.

12.4.    Place. The venue of the arbitration shall be the city of São Paulo, State of São Paulo, wherein the award shall be issued.

12.5.    Language. The official language for all arbitration acts agreed hereunder shall be Portuguese.

12.6.    Confidentiality. The Parties agree that the arbitration shall be kept in secrecy and confidential, and the elements thereof (including the statements of claim of the parties, evidence, expert reports and any other statements of third parties, and any other documents submitted or exchanged in the course of the arbitration proceeding) shall be disclosed only to the Arbitration Court, to the parties to the arbitration, their attorneys and to any person required for conducting the arbitration, except when such disclosure is required for the fulfillment of obligations imposed by Law or by any Governmental Authority, and the provisions hereof shall be deemed as proof of confidentiality agreed to between the parties, under article 189, item IV, of the Code of Civil Procedure.

12.7.    Binding Effect. The arbitration award shall be final and unappealable, and shall bind the parties to the arbitration, their successors and assignees, who undertake to comply with it voluntarily.

12.8.    Charges. The arbitration award shall fox the arbitration charges, including, but not limited to, attorney’s contractual fees, and shall decide which of the parties shall bear the payment thereof, or the proportion to be shared between the parties, according to the loss of suit of the parties in relation to the merits of the dispute submitted to arbitration. The Arbitration Court shall not have the power to arbitrate attorney fees for loss of suit.

 

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12.9.    Court Remedies. The parties may request for urgent and provisional remedies to the Judiciary Branch before the establishment of the Arbitration Court. As from the establishment thereof, all urgent or provisional relief shall be directly sought before the Arbitration Court, which may have powers to uphold, revoke or modify any such measures previously requested to the Judiciary Branch.

12.10.    Arbitration Support Courts. Provisional and urgent measures, when applicable, and acts for compliance, including any decision or arbitration award, whether partial or final, may be sough before the judicial district where the domicile or assets of any of the parties to the arbitration are located, or before the judicial district of the city of São Paulo, State of São Paulo. For other court remedies authorized by the Arbitration Law, the Parties elect the central courts of the judicial district of the São Paulo, State of São Paulo, excluding any other court having a judicial nature. The filing of any court remedies shall not be deemed as a waiver of the rights provided for in this Clause or to the arbitration as the sole method of resolution of disputes. Without prejudice to this Clause, the parties agree that the Emergency Arbitrator Procedure, provided for in Administrative Resolution No. 32/2018 of the Arbitration Chamber, may be initiated, at the request of the interested party, before the establishment of the Arbitration Court.

12.11.    Consolidation. Before the signing of the arbitration term, the Arbitration Chamber may, upon the request of any of the parties to the arbitration, consolidate simultaneous arbitration proceedings, involving (a) any of the parties, even if not all of them are part to both proceedings, and (b) this Agreement and/or other related instruments signed by the Parties and their respective successors. After the signing of the arbitration term, the consolidation shall be determined by the Arbitration Court, subject to the same criteria above, the compatibility of arbitration clauses that provide for the application of the Arbitration Regulation, and provided that there is no prejudice to the right to adversary proceedings of any of the parties thereto, and provided further that the equality of the parties is respected. In this event, the first Arbitration Court established shall have the power to consolidate, and its decision shall be binding upon all parties to the consolidated arbitrations.

12.12.    Enforceable Arbitration Provisions. A breach of this Agreement by a Party shall not affect the agreement under this Chapter 12 regarding the submission of any dispute to an arbitration proceeding. In addition, the obligations of the Parties under this arbitration clause shall survive the termination of this Agreement. The invalidity or unenforceability of any provision of this Chapter 12 shall not affect the validity or enforceability of the Parties’ obligation to submit their claims to the binding arbitration or the other provisions of this Chapter 12.

12.13.    Fine for Violation of this Arbitration Clause. Any party that, without a legal grounding, makes difficult or prevents the establishment of the Arbitration Court, either by not taking the necessary measures in due time, or by forcing the other party to adopt the measures provided for in article 7 of the Brazilian Arbitration Law, or even by not complying with all the terms of the arbitration award, shall pay a monetary fine equivalent to five thousand Reais (R$5,000.00) per day of delay, applicable, as appropriate, from the date on which the Arbitration Court should have been established, to be reasonably defined in the arbitration award and after hearing the Parties. In addition, a monetary fine equivalent to five thousand Reais (R$5,000.00) shall be legally levied to the detriment of the Party responsible, under the terms set forth in the arbitration award, for fulfilling the obligations provided for, within the deadlines designated in the arbitration award, and such fine may be added to the request to be made in any procedure for enforcement of the arbitration award, without prejudice to the decisions and penalties included in such arbitration award.

13.    NOTICES

13.1.    Notices. Any notices, letters, consents, requests or other communications under this Agreement shall be sent to the Parties as indicated in “Annex 13.1”, and shall be made in writing and sent by: (i) registered letter with confirmation of receipt; (ii) delivered in person, with confirmation of receipt; (iii) by email followed by delivery by courier or with written confirmation of email transmission and receipt; or (iv) by judicial or extrajudicial notice. Notices delivered as provided for in this Clause shall be deemed to have been delivered (a) on the date shown in the acknowledgment of receipt, if sent by mail; (b) on the delivery date, if delivered in person; (c) on the date shown on the acknowledgment of receipt, if sent by email; or (d) on the date of delivery, if delivered by judicial or extrajudicial notice.

 

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13.2.    Change of Contact Information. Any Party may change the contact information and the addresses to which notices shall be sent, by giving notice to the other Parties in writing in accordance with the terms of this Clause. If any communication of change of contact or address information is not made, any notices, letters, consents, requests and/or other communications sent to the address mentioned in “Annex 13.1”, or to any address that may be notified later in writing, shall be deemed to be valid and binding on the receiving Party.

14.    GENERAL PROVISIONS

14.1.    Joint and Several Warranty. The Guarantor warrants, jointly and severally and without benefit of order, irrevocably and irreversibly, for all purposes, the proper and timely performance of the obligations undertaken by the Investor under this Agreement, its Annexes and any agreements or instruments referred to herein.

14.2.    No Right to Offset. The Parties, their successors and assigns hereby unconditionally and irrevocably waive any rights to offset that such Parties, or any of their Affiliates, successors and assigns, have or may have in respect of any payments to be made by the respective Party pursuant to this Agreement.

14.3.    Entire Agreement; Annexes. The Annexes to this Agreement, the Easynvest’s Disclosure Letter and the Investor’s Disclosure Letter are an integral part of this instrument, and this Agreement, together with any of the other agreements contemplated in this Agreement, constitutes the entire agreement between the Parties regarding the Operation, and supersedes all other prior agreements made by either of them in this regard. There is no now and there has not existed restrictions, promises, representations, warranties, covenants, commitments or statements, oral or in writing, which have been taken as a basis by any Party hereof, except those expressly provided for in this Agreement, in its Annexes, in the Easynvest’s Disclosure Letter and in the Investor’s Disclosure Letter.

14.4.    Heirs, Successors and Assigns. This Agreement shall bind upon and inure to the benefit of the Parties and their respective heirs, successors and assigns.

14.5.    Inexistence of Third Party Beneficiary. The terms and conditions of this Agreement are intended solely for the benefit of each Party hereto, as applicable, and their respective successors, heirs or authorized assigns, and they are not intended by the Parties, as applicable, to confer rights on Third Party beneficiaries, and this Agreement does not confer any such rights on any other Person.

14.6.    Specific Performance. Subject to the provisions of this Agreement, the Parties acknowledge that the award of damages, although due and determined in accordance with the applicable Law, shall not constitute a sufficient remedy for the non-compliance with the obligations set forth in this Agreement, and any Party may seek in court the specific performance with the defaulted obligation, including both the main and ancillary obligations provided for herein.

14.7.    Extrajudicial Execution Instrument. This Agreement, as signed by 02 (two) witnesses, constitutes an extrajudicial execution instrument for all purposes and effects of the Code of Civil Procedure.

14.8.    Binding Effect. This Agreement (and all its terms and conditions) is entered into irrevocably and irreversibly (except as otherwise expressly provided for herein), and constitutes legal, valid and binding obligations, binding and remaining in force for the benefit of the Parties and the intervening consenting parties hereto, and of their respective heirs, successors and authorized assigns.

14.9.    Assignment. Except as otherwise provided for in this Agreement, any assignment of this Agreement or the rights and obligations arising therefrom by any Party shall require the prior written consent of the other Parties. Any assignment or other type of unauthorized transfer made without the consent of the other Parties shall be null and void.

14.10.    Amendments. Any amendments to or termination of this Agreement, or any of its Annexes, as well as the waiver of any obligations set forth herein, shall only be deemed valid and if they are made in writing and signed by all the Parties.

14.11.    Waivers. No waiver, release or termination of this Agreement or any terms or provisions hereof shall be binding on any Party hereof, unless it is confirmed in writing. No waiver by any of the Parties of any term or provision of this Agreement or any non-compliance with the terms hereof shall affect the rights of such Party to subsequently execute such term or provision, or to exercise any right or require any court remedy, in the event of any other non-compliance, whether similar or not.

 

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14.12.    Joint Efforts. Except as otherwise provided for in this Agreement, the Parties hereby agree that they shall take all necessary measures for the full compliance with the obligations set forth herein, thereby signing all instruments, certificates and other documents necessary to carry out the Operation contemplated herein.

14.13.    Severability. In the event that any Chapter, Clause, Annex, term or provision of this Agreement is declared null or unenforceable under the terms set forth in Law, such nullity or unenforceability shall not affect any other Chapters, Clauses, Annexes, terms or provisions of this Agreement, which shall remain in full force and effect. Upon determination that a term or provision of this Agreement is null or unenforceable, the Parties shall negotiate following the principles of good faith, in order to integrate this Agreement to bring it, as close as possible, to the actual intention of the Parties, in a mutually acceptable manner, so that the Operation contemplated herein may be consummated as originally stipulated, to the fullest extent possible.

14.14.    Joint Writing. The Parties agree and understand that all Clauses of this Agreement were drafted collaboratively between and by the Parties, and the interpretation of this Agreement shall in no way be affected by the fact that a certain Clause is considered to be drafted by any of the Parties.

14.15.    Commissions and Fees. Each Party shall be responsible for the payment of commissions and fees due to its respective legal, financial, accounting and technical intermediaries, advisors and consultants in connection with the negotiation of this Agreement (“Operation Costs”). Except for the Authorized Withdrawals, the Easynvest Companies shall not pay, reimburse or guarantee the Operation Costs and, if they make any payment of the Operation Costs in breach of this Clause, the Easynvest Shareholders shall fully reimburse the Easynvest Companies for such costs and expenses.

14.16.    Initials. The Parties and the Intervening Consenting Parties authorize the persons indicated in “Annex 14.16” to put their initials, independently, in their name and behalf, this Agreement and the Annexes to this Agreement.

In witness whereof, the Parties, the Intervening Consenting Parties, together with two witnesses, sign 7 (seven) counterparties of this instrument of equal content and form, for a single purpose.

São Paulo, September 10, 2020

 

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[Signature Page (1/3) of the Investment Agreement entered into on September 10, 2020]

 

			CARLOS AUGUSTO LUZ AVIAN
			/s/ Carlos Augusto Luz Avian
			JOSÉ MENDES DE FARIAS
			/s/ José Mendes de Farias
			MARCIO MARTINS CARDOSO
			/s/ Marcio Martins Cardoso
			AMERSON GALHARDO MAGALHÃES
			/s/ Amerson Galhardo Magalhães
			PAULO AVIAN
			/s/ Paulo Avian
			ATLAS INVESTIMENTOS FUNDO DE INVESTIMENTO EM PARTICIPAÇÕES MULTIESTRATÉGIA
	P.		/s/ Alfredo Sandes Sampaio
	Name:		Alfredo Sandes Sampaio
	Position:		Attorney-in-fact

 

	P.
	Name:
	Position:

 

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[Signature Page (2/3) of the Investment Agreement entered into on September 10, 2020]

 

	NU HOLDINGS LTD.
	By:		/s/ David Velez Osorno
	Name:		David Velez Osorno
	Position:		Executive Officer

 

	NU FINANCEIRA S.A. – SOCIEDADE DE CRÉDITO, FINANCIAMENTO E INVESTIMENTO
	By:		/s/ Guilherme Lago
	Name:		Guilherme Lago
	Position:

 

	NU PAGAMENTOS S.A.
	By:		/s/ David Velez Osorno
	Name:		David Velez Osorno
	Position:		Director

 

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[Signature Page (3/3) of the Investment Agreement entered into on September 10, 2020]

 

	EASYNVEST TÍTULO CORRETORA DE VALORES S.A.
	By:		/s/ Fernando Miranda/Anderson Magachães
	Name:		Fernando Miranda/Anderson Magachães
	Position:		Executive Officer/Executive Officer

 

	EASYNVEST HOLDING FINANCEIRA S.A.
	By:		/s/ Eric Bodin/Anderson Magachães
	Name:		Eric Bodin/Anderson Magachães
	Position:		Executive Officer/Executive Officer

 

	EASYNVEST PARTICIPAÇÕES S.A.
	By:		/s/ Fernando Miranda/Eric Bodin
	Name:		Fernando Miranda/Eric Bodin
	Position:		Executive Officer/Executive Officer

 

	EASYNVEST CORRETORAS DE SEGUROS LTDA.
	By:		/s/ Eric Bodin/Anderson Magachães
	Name:		Eric Bodin/Anderson Magachães
	Position:		Director/Director

 

	EASYNVEST GESTÃO DE RECURSOS LTDA.
	By:		/s/ Carlos Anais/Anderson Magachães
	Name:		Carlos Anais/Anderson Magachães
	Position:		Director/Director

 

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[Witnesses’ Signature Page of the Investment Agreement entered into on September 10, 2020]

Witnesses:

 

1.		/s/ Marina de Freitas Andrade				2.		/s/ Adriana Martins Scaleão Brasil
		Name:		Marina de Freitas Andrade CPF: [***]				Name:		Adriana Martins Scaleão Brasil
		ID:		[***]				ID:		[***]
										CPF: [***]

*    *    *    *    *

 

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Annex 1.1

to the

Investment Agreement and Other Covenants

dated

September 10, 2020

Definitions

The terms in capital letters used in this Agreement shall have the following meanings attributed to them below:

“Easynvest Shareholder” and/or “Easynvest Shareholders” has the meaning set forth in the Preamble.

“Broker Shares” has the meaning set forth in Whereas Clause (i).

“Easynvest Shares” has the meaning set forth in Whereas Clause (v).

“Easynvest Holding Financeira Shares” has the meaning set forth in Whereas Clause (iv).

“Easynvest Participações Shares” has the meaning set forth in Whereas Clause (v).

“Nubank Shares” has the meaning set forth in Clause 4.1.

“Broker Common Shares” has the meaning set forth in Whereas Clause (i).

“Broker Preferred Shares” has the meaning set forth in Whereas Clause (i).

“Settlement Agreement” has the meaning set forth in Clause 8.7(ix).

“Easynvest Shareholders’ Agreements” means (i) the Broker’s Shareholders’ Agreement entered into on March 6, 2018 between Carlos Avian, José Mendes, Mareio, Amerson, Paulo and Nyx Participações S.A. and, as intervening consenting party, the Broker; (ii) the Broker’s Shareholders’ Agreement, entered into on March 6, 2018 between Carlos Avian, José Mendes, Mareio, Amerson, Paulo and, as intervening consenting party, the Broker; and (iii) in the event the authorization for establishment of Easycred is granted by BACEN before the Closing Date, the Easycred’s Shareholders’ Agreement to be entered into between Carlos Avian, José Mendes, Mareio, Amerson, Paulo and Easynvest Holding Financeira and, as intervening consenting party, Easycred, shall be included in this definition for all purposes and effects of this Agreement.

“Affiliates” means, collectively or individually, (a) in relation to an individual, his/her direct or collateral descendants or ascendants up to the second degree, biological or not (adopted) (except for the Withdrawals, which collateral shall refer up to the third degree); and (b) in relation to a legal entity, any Person that, directly or indirectly, Controls, is Controlled by, or is under the common Control of such Person.

“Advent Affiliates” means, in relation to Atlas, any Affiliates or any Persons managed or administered, directly or indirectly, by Advent International Corporation.

“Acquisition Price Adjustment” has the meaning set forth in Clause 3.5.

“Amerson” has the meaning set forth in the Preamble.

“Material Change” means any measure, remedy or condition for the performance of the Operation that significantly impact the activities, products, strategies and businesses of the Easynvest Companies, the Investor, the Guarantor and/or the Affiliates based on the existing conditions on the Signature Date, which impact is demonstrated to the other party, on a reasonable basis. For purposes of clarification, the following situations are not Material Changes: (i) requirements for individual performance by any regulated institution (including the Broker) or compliance with the Basel Index of up to fourteen percent (14%), as agreed with the Central Bank of Brazil on the inception date of Nu Financeira); and/or (ii) matters related to the technical capacity of the Broker’s management members; and/or (iii) matters on the vehicle or entity of the Investor’s economic group to be used in the Operation or any corporate operations carried out by the Investor in connection with the Operation.

 

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“ANBIMA” means the Brazilian Association of Financial and Capital Market Entities.

“BACEN’s Approvals” has the meaning set forth in Clause 5.7.

“CADE’s Approval” has the meaning set forth in Clause 5.8.

“Atlas” has the meaning set forth in the Preamble.

“Closing Acts” has the meaning set forth in Clause 6.2.

“Auditor of the Price Adjustment” has the meaning set forth in Clause 3.5.4.

“Governmental Authority” means any authority, government or governmental body (federal, state, municipal or another political subdivision) with executive, legislative, judiciary, regulatory or administrative functions, including any authority, agency, department, board, commission, governmental agency or organization, any court or arbitration court, any stock exchanges or organized over-the-counter markets.

“B3” means B3 S.A. – Brasil, Bolsa, Balcão.

“BACEN” means the Central Bank of Brazil.

“Adjustment Balance Sheet” has the meaning set forth in Clause 3.5.

“BSM” means BSM Supervisão de Mercados.

“Beneficiaries of the Exercised Options” has the meaning set forth in Clause 2.3.

“CADE” means the Administrative Council of Economic Defense.

“Arbitration Chamber” has the meaning set forth in Clause 12.2.

“Cap” has the meaning set forth in Clause 8.3(iii).

“Working Capital” means the accounting balances (i) of the current assets, less (ii) the current liabilities.

“Minimum Working Capital” has the meaning set forth in Clause 3.5.1(ii).

“Carlos Avian” has the meaning set forth in the Preamble.

“Disclosure Letter” means the Easynvest’s Disclosure Letter or the Investor’s Disclosure Letter.

“Easynvest’s Disclosure Letter” means the letter delivered by Easynvest Companies to the Investor concurrently to the signature of this Agreement and accepted and acknowledged by the Investor, including specific information on this Agreement.

“Investor’s Disclosure Letter” means the letter delivered by the Investor and the Guarantor to the Easynvest Shareholders concurrently to the signature of this Agreement and accepted and acknowledged by the Easynvest Shareholders, including specific information on this Agreement.

“CDI” means the daily average rate for transactions with Interbank Deposit Certificate, expressed on an annual basis, based on two hundred and fifty-two (252) days, calculated by B3 and daily disclosed by the Operational Department of the Open Market – DEMAB of the Central Bank of Brazil, or any subsequent rate normally used for the offset of interbank deposit certificates.

“Circular 3,590/12” means BACEN Circular 3,590, of April 26, 2012, as amended, which sets forth the analysis of the concentration acts in the National Financial System by BACEN.

“Circular 3,611/12” means BACEN Circular 3,611, of October 31, 2012, as amended, which sets forth the procedures for election and appointment for the exercise of positions in the statutory bodies of the financial institutions.

 

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“Circular 3,649/13” means BACEN Circular 3,649, of March 11, 2013, as amended, which sets forth the procedures for changes in the Control and corporate reorganization of the financial institutions, including other matters.

“CMN” means the National Monetary Council.

“Civil Code” means Law 10,406, of January 10, 2002, as amended.

“Code of Civil Procedure” means Law 13,105, of March 16, 2015, as amended.

“Purchase and Sale of the Easynvest Shares” has the meaning set forth in Clause 2.2.

“Suspensive Conditions” means, collectively, the Parties’ Suspensive Conditions, the Easynvest’s Suspensive Conditions and the Investor’s Suspensive Conditions.

“Parties’ Suspensive Conditions” has the meaning set forth in Clause 5.1.

“Easynvest’s Suspensive Conditions” has the meaning set forth in Clause 5.2.

“Investor’s Suspensive Conditions” has the meaning set forth in Clause 5.3.

“Agreement” has the meaning set forth in the Preamble.

“Guarantee Agreement of Nubank’s Shares” has the meaning set forth in Clause 6.2(xiii).

“Carlos Option Agreement” means, collectively, the “Private Option Agreement, entered into between Carlos Avian and Fabio Eduardo Macedo de Oliveira, on August 15, 2017”, the “Private Option Agreement, entered into between Carlos Avian and Roger Ribeiro Ono, on August 15, 2017, the “Private Option Agreement, entered into between Carlos Avian and Alexandre Baldasseirine Neto, on August 15, 2017” and the “Private Option Agreement, entered into between Carlos Avian and Anderson Luis Paiva Pinto, on August 15, 2017.

“Pledge Agreement” means the Share Pledge Agreement entered into between Carlos Avian, José Mendes, Mareio and Amerson, as debtors, and Nyx Participações S.A., as creditor, on March 6, 2018.

“Control” (and related terms) has the meaning set forth in article 116 of the Brazilian Corporate Law.

“Adjustment for Inflation” has the meaning set forth in Clause 3.1(ii).

“Broker” has the meaning set forth in the Preamble.

“Normal Course of Business” means any operation or activity that represents a daily and common activity, carried out on a reasonable and professional basis, in conformity with past practices and procedures, and applicable Law in force, not subject to approval by the shareholders’ meeting, partners’ meeting, board of directors, executive board’s meeting or similar bodies.

“Operation Costs” has the meaning set forth in Clause 14.15.

“CVM” means the Brazilian Securities and Exchange Commission.

“Personal Data” means any information relating to an identified or identifiable individual that refers to data subject to protection under applicable Law in force.

“Adjustment Base Date” has the meaning set forth in Clause 3.5.

“Signature Date” has the meaning set forth in the Preamble.

“Submission Date of the Notice” has the meaning set forth in Clause 3.1(iii).

“Closing Date” has the meaning set forth in Clause 5.1.

“Deadline” has the meaning set forth in Clause 5.6.

 

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“De Minimis” has the meaning set forth in Clause 8.3(i).

“Essential Representations and Guarantees” means (A) in relation to the Easynvest Shareholders and the Easynvest Companies, the representations and guarantees provided under the terms set forth in Clauses 7.1(1) (Authority), 7.1(ii) (Absence of Conflict), 7.1(iii) (Approvals and Consents), 7.1(v) (Ownership of Shares), 7.1(vi) (Share Right), 7.1(vii) (Claims), 7.1(ix) (Advisors), 7.2(i) (Existence), 7.2(ii) (Authority), 7.2(iii) (Absence of Conflict), 7.2(iv) (Approvals and Consents), 7.2(v) (Claims), 7.2(vi) (Capitalization), 7.2(viii) (Subsidiaries); and (B) in relation to the Investor, the representations and guarantees provided under the terms set forth in Clauses 7.3(i) (Authority), 7.03(ii) (Absence of Conflict), 7.3(iii) (Approvals and Consents), 7.3(iv) (Claims), 7.4(i) (Existence), 7.4(ii) (Capitalization).

“Claim” means any demand, lawsuit, proceeding, claim, investigation, inquiry, arbitration, mediation, or any other type the lawsuit, arbitration or administrative proceeding, individual or collective and/or any claim that may represent a Loss.

“Third-party Claim” has the meaning set forth in Clause 8.7.

“Direct Claim” has the meaning set forth in Clause 8.6.

“Adjustment Statement” has the meaning set forth in Clause 3.5.

“Easynvest’s Intellectual Property Rights” has the meaning set forth in “Section 7.2(xxiii)” of the Easynvest’s Disclosure Letter.

“Adjustment Documents” has the meaning set forth in Clause 3.5.

“Investment Documents of Nubank’s Shares” has the meaning set forth in Clause 6.2(vi).

“DTVM Nubank” has the meaning set forth in Whereas Clause (ix).

“Business Day” means any day other than Saturday, Sunday or another day on which the banks are authorized or obligated to be closed in the City of São Paulo, State of São Paulo.

“Easycred” has the meaning set forth in Whereas Clause (vi).

“Easvnvest Corretora de Seguros” has the meaning set forth in the Preamble.

“Easvnvest Gestão de Recursos” has the meaning set forth in the Preamble.

“Easvnvest Holding Financeira” has the meaning set forth in the Preamble.

“Easvnvest Participações” has the meaning set forth in the Preamble.

“Material Adverse Effect” means, (A) in relation to the Easynvest Companies, any event, change or development that represents material effects against the business, financial condition, properties, assets, liabilities or operational results of the Easynvest Companies, taken as a whole, resulting in (i) net withdrawals (gross deposits deducted from gross withdrawals) of the assets under the custody of the Broker (Asset Under Custody – AUC) in an amount equivalent to or above ten percent (10%) of the assets under the custody of the Broker on the Signature Date (in which case, after such net withdrawals, the total assets under the custody of the Broker, not considering the changes in prices of the financial prices in the Market, are equivalent to or less than ninety percent (90%) of the assets under the custody of the Broker on the Signature Date); and/or (ii) any damage to the image of the Easynvest Companies and/or the Easynvest Shareholders holding an equity interest above five percent (5%) of the capital of any of the Easynvest Companies by virtue of any investigation, proceeding or procedure related to the determination of any possible violation to the Anticorruption Law; (B) in relation to the Investor, the Guarantors and Nu Holdings, means, any event, change or development that represents material effects against the business, financial condition, properties, assets, liabilities or operational results of the Investor, the Guarantors and Nu Holding, taken as a whole, resulting in (i) net withdrawals (gross deposits deducted from gross withdrawals) of the amounts deposited in Nucontas in an amount equivalent to or above ten percent (10%) of the amounts held or deposited in Nucontas on the Signature Date; and/or (ii) any damage to the image of the Investor, Nu Holdings and/or the Guarantors, or any shareholder of the abovementioned parties, provided that holding an equity interest above five percent (5%) of the capital of any of the abovementioned parties by virtue of any investigation, proceeding or procedure related to the determination of any possible violation to the Anticorruption Law. For purposes of definition of Material Adverse Effect, “Nucontas” means (i) the prepaid payment accounts with Nu Pagamentos; and (ii) the funds deposited by the clients in Nu Financeira in Bank Deposit Receipts (RDB) and Bank Deposit Certificates (CDB).

 

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Provided that any material effects arising, derived or resulting from:

 

(i)	this Agreement or the operation set forth herein, or the corresponding announcement to the press or disclosure under the regulatory requirements;

 

(ii)	the change in the Brazilian and/or global economic and/or political conditions and/or capital, financial and/or foreign exchange markets and/or market where the Parties operate; and

 

(iii)

the beginning or maintenance of natural disasters, wars, social and political events, terrorism practices (or similar practices), pandemic or any other force majeure event,

shall not be considered as a Material Adverse Event and shall not be considered in the determination whether any Material Adverse Effect effectively took place and/or could reasonably take place.

“Debts” means, in relation to the Easynvest Companies, the sum of the debts with individuals and/or legal entities, except for accounts payable to suppliers and Taxes in the Normal Course of Business (except for amounts not paid and/or in dispute), including, but not limited to, loans and financing with third parties and related parties, issuance of fixed income notes, convertible or not, in the local and/or international capital market, sum of pledges, sureties and guarantees provided to third parties (not including the guarantees provided to third parties in the Normal Course of Business), advanced receivables, assignment and/or discount of receivables with recourse, advanced foreign exchange contracts, as well as amounts payable to shareholders, net of balance receivable (or added by the balance payable) from derivative agreements, including hedge and/or swap. For purposes of clarification, Debt, for the purposes of this Agreement, shall not include the payment obligations of Easynvest Participações set forth in SPA Vérios, which shall not be, under any circumstance, greater than twelve million reais (R$12,000,000.00).

“Maximum Debt” has the meaning set forth in Clause 3.5.1(ii).

“Closing” has the meaning set forth in Clause 6.1.

“Guarantor” has the meaning set forth in the Preamble.

“Encumbrances” means, in relation to a specific property, right or asset, not subject to any burden, secured guarantee or personal guarantee, including, but not limited to, pledge, conditional sale, pledge, attachment, mortgage, use in confession of debts, lease, sublease, licensing, way of pass, borrowing, charge, any type of judicial or administrative restriction or encumbrance of any nature, as well as any Third-party rights, including, but not limited to, usufruct, repurchase right, stock option, preemptive right or tag along right, voting agreement or any other similar right that, on any account, binds, limits, restricts or subjects or that could bind, limit, restrict or subject, directly or indirectly, the ownership, holding and/or free use and disposal of a specific property, right or asset and/or all and any related rights.

“IBRACOR” means the Brazilian Institute of Self-Regulation of the Market of Insurance Brokers.

“Basel Index” means, in relation to the Broker, the Basel Index calculated in accordance with article 7, item I, of BACEN Circular 3,930, of February 14, 2019.

“Minimum Basel Index” has the meaning set forth in Clause 3.5.1(v).

“Confidential Information” has the meaning set forth in Clause 10.1.

“Intervening Consenting Parties” has the meaning set forth in the Preamble.

“Investor” has the meaning set forth in the Preamble.

 

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“IPCA” means the Extended Consumer Price Index, as disclosed by the Brazilian Institute of Geography and Statistics (IBGE).

“José Mendes” has the meaning set forth in the Preamble.

“LAPEF VI” has the meaning set forth in Clause 9.1(ii).

“Law” means any law, decree, regulation, regulatory requirement, rule, direction, instruction, resolution, mandate, decision, judicial order, corrective measure, determination or requirement by any Governmental Authority, including the tax, legal and monetary authorities, regardless of determined by a formal law or not.

“Brazilian Corporation Law” means Law 6404, of December 15, 1976, as amended.

“Arbitration Law” has the meaning set forth in Clause 12.2.

“Anticorruption Law” means any applicable Brazilian Laws in force for prevention and fight against corruption, money laundering, administrative improbity, and other similar violations, including, but not limited to, the Anticorruption Law (Law 12,846/2013, as amended), the Criminal Code (Decree Law 2,848/1940, as amended), the Bidding and Administrative Agreement Law (Law 8,666/93, as amended), the Tax Order Crime Law (Law 8,137/90, as amended), the Anticorruption Law of Foreign Public Officers in International Commercial Transactions (Decree 3,678/00, as amended), the Administrative Improbity Law (Law 8,429/92, as amended), the Money Laundering Law (Law 12,683/2012, as amended) and, as applicable, the US Foreign Corrupt Practice Act - FCPA”.

“Mareio” has the meaning set forth in the Preamble.

“Basket Amount” has the meaning set forth in Clause 8.3(ii).

“Restricted Business” means the development and/or operation of the retail investment platform in Brazil, including the following activities (always mainly directed to the retail market): (a) intermediation, distribution and brokerage of marketable securities, including pension plan products; and/or (b) manager exclusively related to robot advisor or management of net asset funds, which quotas are mainly distributed in its own retail platform.

“BACEN’s Notice” has the meaning set forth in Clause 5.7.

“CADE’s Notice” has the meaning set forth in Clause 5.8.

“Adjustment Notice” has the meaning set forth in Clause 3.5.

“Price Disagreement Notice” has the meaning set forth in Clause 3.5.2.

“Indemnity Notice” has the meaning set forth in Clause 8.6(i).

“Third Party’s Indemnity Notice” has the meaning set forth in Clause 8.7.

“Nu Financeira” has the meaning set forth in the Preamble.

“Nu Holdings” has the meaning set forth in the Preamble.

“Nu Pagamentos” has the meaning set forth in the Preamble.

“Operation” has the meaning set forth in Whereas Clause (x).

“Payment of the Nubank’s Shares” has the meaning set forth in Clause 4.2(ii).

“Party” and/or “Parties” has the meaning set forth in the Preamble.

“Indemnifying Party” has the meaning set forth in Clause 8.6.

“Indemnified Party” has the meaning set forth in Clause 8.6.

 

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“Investor Indemnified Party” has the meaning set forth in Clause 8.1.

“Easvnvest Indemnified Party” has the meaning set forth in Clause 8.4.

“Related Parties”, in relation to one Party, the Person that is: (A) the subsidiary and/or Affiliate; (B) Controls, is Controlled or is under common Control; (C) the associate; (D) the shareholder, director and/or member of the fiscal council, including subsidiaries and/or Affiliates; (E) in relation to an individual, the direct or collateral descendants or ascendants up to the second degree, biological or not (adopted) (except for the Withdrawals, which collateral shall refer up to the third degree); (F) in relation to investment funds, the managers or administrators or other funds and/or investment vehicles managed and/or administered by such managers.

“Reference Equity” means, in relation to the Broker, the Reference Equity calculated in accordance with CMN Resolutions 4,192 and 4,193, of March 1, 2013.

“Equity” means, in relation to the Easynvest Operational Companies, the total equity of the Easynvest Operational Companies.

“Minimum Equity” has the meaning set forth in Clause 3.5.1(iii).

“Paulo” has the meaning set forth in the Preamble.

“Loss” means, without duplicity, any losses, disbursements, fines, rates, penalties, damages, costs, expenses, responsibilities or obligations (including fees and reasonable legal costs, accountants’ fees and other professional fees), effectively incurred or suffered by any Person, provided that the Losses under the terms set forth in this instrument shall not include the losses relating to loss of profits (except for Third-party Claims) or Losses relating exclusively to the evaluation of the Easynvest Companies (i.e. “multiple of income”, “multiple of cash flow”, “multiple of earnings”).

“Review Term” has the meaning set forth in Clause 3.5.2.

“Transition Period” has the meaning set forth in Clause 5.10.

“Person” means, however the case may be, any individual or legal entity, of any nature, including, but not limited to, any corporation or limited-liability company, association, foundation, consortium, company, company without legal personality, investment fund, condominium, pension fund and Governmental Authority.

“Key Person” has the meaning set forth in Clause 9.2.

“Easynvest Option Plan” means, collectively, the 1st Option Plan and the 2nd Option Plan.

“1st Option Plan” means the Broker’s 1st Stock Option Plan, as approved at the Extraordinary Shareholders’ Meeting held on April 30, 2019.

“2nd Option Plan” means the Broker’s 2nd Stock Option Plan, as approved at the Extraordinary Shareholders’ Meeting held on February 3, 2020, based on which the following programs were implemented (i) the 1st Stock Option Plan, with total volume of three hundred and two thousand, six hundred and thirty-five (302,635) Broker’s Class A preferred shares; and (ii) the 2nd Stock Option Plan, with total volume of three hundred and two thousand, six hundred and thirty-five (302,635) Broker’s Class B preferred shares.”

“Easynvest’s Phantom Share Plan” means the Broker’s Shared-based Payment Program with Settlement in Cash – Phantom Shares, as approved at the Extraordinary Shareholders’ Meeting held on February 3, 2020, which beneficiaries are described in “Annex 5.3(iv)(a)” hereof.

“Base Acquisition Price” has the meaning set forth in Clause 3.1.

“Closing Acquisition Price” has the meaning set forth in Clause 3.4.

“Accounting Principles” means the accounting principles generally accepted and in effect in Brazil or in the Cayman Islands, however the case may be, based on Law 6,404/76, the rules issued by the Brazilian Securities and Exchange Commission (CVM), the accounting standards defined by the Federal Accounting Council and the Brazilian Institute of Independent Auditors (IBRACON), the resolutions undertaken by the Federal Accounting Council (CFC), the Accounting Plan of the Institutions of the National Financial System (Cosif) and the International Financial Reporting Standards (IFRS), however the case may be.

 

42

 

“PTAX” means, on a specific Business Day, the foreign exchange rate used as reference for the US sales quotation, published by BACEN on such Business Day, mainly referred to as Sales PTAX (or any other foreign exchange rate published by BACEN that may replace this rate).

“Own Funds” means, in relation to the Easynvest Companies, the difference between (1) the funds and other financial assets comprised of (i) cash and cash equivalents, (ii) interbank investments, (iii) marketable securities; and (iv) other immediately available financial assets; and (2) the liabilities representing (i) the negotiation and intermediation of funds, (ii) the balance of clients; and (iii) the taxes and guarantees from clients. For purposes of clarification, the sub items of items (1) and (2) shall not be considered twice.

“Minimum Own Funds” has the meaning set forth in Clause 3.5.1(i).

“KYC/AML’s Regulation” has the meaning set forth in Section 7.2(xxviii) of the Easynvest’s Disclosure Letter.

“Arbitration Regulation” has the meaning set forth in Clause 12.2.

“Price Adjustment Report” has the meaning set forth in Clause 3.5.4.

“Post Closing Report” has the meaning set forth in Clause 3.5.4.

“Corporate Reorganization” has the meaning set forth in Whereas Clause (vii).

“Resolution 2,723/00” means CMN Resolution 2,723, of May 31, 2000, as amended, which set forth the rules, conditions and procedures for the establishment of facilities overseas and the direct or indirect investment in Brazil or overseas, by financial institutions and other institutions authorized to operate by BACEN.

“Resolution 4,122/12” means CMN Resolution 4,122, of August 2, 2012, as amended, which provides for the requirements and procedures for changes in shareholding control, corporate reorganizations and conditions for the exercise of positions in statutory bodies of the financial institutions, amongst other matters.

“Withdrawal” means, except for the Authorized Withdrawals: (i) any dividend, distribution (in currency or in cash), capital reduction, redemption, amortization or interest on capital; (ii) any payment performed or agreed (in currency or in cash, including bonus, payment of loans, payments or accumulated interest on commissions or amounts payable as management, monitoring, services, management fees, charges or other payments), as well as any asset transferred, sold or disposed, or including any transfer, sale or disposal accepted/agreed by the Easynvest Companies to the Easynvest Shareholders or any Affiliates (except for the compensation for the services provided and benefits received by the Easynvest Shareholders in the Ordinary Course of Business); (iii) any guarantee, indemnity, responsibility, obligation or Encumbrance assumed or incurred by or on behalf of the Easynvest Companies on behalf of the Easynvest Shareholders or any of the Affiliates, materialized or contingent; (iv) any bonus or another payment performed exclusively by virtue of the Operation paid or subject to payment by the Easynvest Companies to any member of the board of directors, executive officer, administrator, manager, employee or consultant of the Easynvest Companies, or any Person related to any of such Persons or Easynvest Shareholders or any of the Affiliates thereof; (v) the waiver, deferral or disbursement of any amount payable by the Easynvest Shareholders or the Affiliates thereof to the Easynvest Companies; (vi) the signature or amendment of the terms of any loan or debt from or to any Easynvest Shareholder or the Affiliates thereof to or from any Easynvest Companies; (vii) any cost or expense incurred in connection with the Operation paid or incurred by the Easynvest Companies that, for any reason, is not reimbursed by the Easynvest Shareholders to the Easynvest Companies, including any cost relating to the Corporate Reorganization; and (viii) any Tax, cost or expense paid, incurred or payable by the Easynvest Companies by virtue of any of the payments or matters referred to in items (i) to (vii) above. Any payment performed by the Easynvest Companies between August 30, 2020 and the Closing Date by the virtue of the exercise and/or cancellation of the options granted in the context of the Easynvest Option Plan, the Easynvest’s Phantom Share Plan and the Carlos Option Agreement, including possible Taxes and expenses, shall be considered as an Authorized Withdrawal for all purposes and effects of this Agreement.

 

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“Authorized Withdrawal” means, exclusively (i) the payments performed to the advisors that participated in the Operation, in the amount of up to thirty million reais (R$30,000,000.00), (ii) the bonus and extraordinary payments performed to employees and/or associates of the Easynvest Companies in connection with this Operation, limited to three million reais (R$3,000,000.00), and provided that the amounts paid do not exceed four hundred thousand reais (R$400,000.00) per person; and (iii) the possible payments that may be performed by Easynvest Companies by virtue of the exercise and/or cancellation of the options granted in the context of the Easynvest Option Plan and the Easynvest’s Phantom Share Plan, up to the limit of five hundred thousand reais (R$500,000.00).

“Sanctions” means economic or financial sanctions, or commerce restrictions imposed, managed or applied, from time to time, by (a) the European Union and implemented by the State members; (b) the Organization Security Council of the United Nations; (c) the Her Majesty’s Treasury of the United Kingdom; or (d) the US government, including those administered by the U.S. Treasury, Office of Foreign Assets Control.

“SPA Vérios” means the Share Purchase and Sale Agreement and Other Covenants, entered into between Easynvest Participações, Vérios and other, on August 19, 2020, for purposes of acquisition of 100% of Vérios by Easynvest Participações.

“Easynvest Companies” means, collectively, Easynvest Holding Financeira, Easynvest Participações, Easynvest Corretora de Seguros, Easynvest Gestão de Recursos and the Broker, provided that (i) in the event the authorization for establishment of Easycred has been granted by BACEN before the Closing Date, and/or (ii) in the event the acquisition of Vérios is concluded before the Closing Date, such definition shall also include Vérios and/or Easycred, as applicable, for all purposes and effects of this Agreement.

“Easynvest Operational Companies” means, collectively, Easynvest Corretora de Seguros, Easynvest Gestão de Recursos and the Broker.

“SUSEP” means the Superintendent of Private Insurance.

“Third Party” means any Person other than the Parties and/or the Easynvest Companies.

“Arbitration Court” has the meaning set forth in Clause 12.3.

“Taxes” means any tax, social contribution, social security contribution, fee or other rates imposed by any Governmental Authority, including taxes on income, gross income, consumption, ownership, sales, gains, use, license, customs rights, transfer, payroll, withholding tax, pension fund, income, donations, labor indemnity, added value, credit, services, lease, employment, seal and other taxes, including, but not limited to State Sales Tax (ICMS), Excise Tax (IPI), taxes on income (COFINS and PIS), Social Contribution on Net Income (CSLL), Tax on Services (ISS), Urban Property Tax (IPTU), Rural Property Tax (ITR), Tax on Real Estate Transmission (ITBI), Tax on Causa Mortin Transmission and Donation (ITCMD), Tax on Vehicles (IPVA), Income Tax (IR), Withholding Income Tax (IR-Withholding), National Institute of Social Security (INSS), Brazilian Government Severance Indemnity Fund (FGTS) and Tax on Financial Operations (IOF), including interest, fines or additions attributable thereto or attributable to any omission in the performance of any obligation relating to tax returns.

“Par Value” has the meaning set forth in Clause 4.2(i).

“Vérios” means Vérios Gestão de Recursos S.A., company headquartered in the City of São Paulo, at Avenida Angélica, 2529, 2nd floor, InovaBra Habitat, Bela Vista, Zip Code 01227-200, enrolled with CNPJ/ME 23.351.397/0001-61.

* * * * *

 

44

 

Exhibit 12.1

CERTIFICATION BY THE PRINCIPAL EXECUTIVE OFFICER PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, David Vélez Osorno, certify that:

1.       I have reviewed this annual report on Form 20-F of Nu Holdings Ltd.;

2.       Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.       Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

4.       The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and have:

a.       Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b.       [Reserved];

c.       Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d.       Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting.

5.       The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

a.       All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and

b.       Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.

Date: April, 20, 2022

By: /s/ David Vélez Osorno

Name: David Vélez Osorno

Title: Chairman and Chief Executive Officer

Exhibit 12.2

CERTIFICATION BY THE PRINCIPAL FINANCIAL OFFICER PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Guilherme Marques do Lago, certify that:

1.       I have reviewed this annual report on Form 20-F of Nu Holdings Ltd.;

2.       Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.       Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

4.       The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the company and have:

a.       Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b.       [Reserved];

c.       Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d.       Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting.

5.       The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

a.       All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and

b.       Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.

Date: April 20, 2022

By:	/s/ Guilherme Marques do Lago
Name:	Guilherme Marques do Lago
Title:	Chief Financial Officer

Exhibit 13.1

CERTIFICATION BY THE PRINCIPAL EXECUTIVE OFFICER PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

The certification set forth below is being submitted in connection with the Annual Report on Form 20-F of Nu Holdings Ltd. (the “Company”) for the fiscal year ended December 31, 2021 (the “Report”), I, David Vélez Osorno, certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge:

1.       the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

2.       the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: April 20, 2022

By: /s/ David Vélez Osorno

Name: David Vélez Osorno

Title: Chairman and Chief Executive Officer

Exhibit 13.2

CERTIFICATION BY THE PRINCIPAL FINANCIAL OFFICER PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

The certification set forth below is being submitted in connection with the Annual Report on Form 20-F of Nu Holdings Ltd. (the “Company”) for the fiscal year ended December 31, 2021 (the “Report”). I, Guilherme Marques do Lago, certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge:

1.       the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

2.       the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: April 20, 2022

By:	/s/ Guilherme Marques do Lago
Name:	Guilherme Marques do Lago
Title:	Chief Financial Officer

Exhibit 21.1

Subsidiaries of the Registrant

The following are the subsidiaries of the Registrant:

#	Entity	Principal activities	Functional currency	Country
1	Nu 1-B, LLC (“Nu 1-B”)	Holding Company	US$	USA
2	Nu 2-B, LLC (“Nu 2-B”)	Holding Company	US$	USA
3	Nu 3-B, LLC (“Nu 3-B”)	Holding Company	US$	USA
4	Nu 1-A, LLC (“Nu 1-A”)	Holding Company	US$	USA
5	Nu 2-A, LLC (“Nu 2-A”)	Holding Company	US$	USA
6	Nu 3-A, LLC (“Nu 3-A”)	Holding Company	US$	USA
7	Nu Payments, LLC (“Nu Payments”)	Holding Company	US$	USA
8	Nu MX LLC (“Nu MX”)	Holding Company	US$	USA
9	Nu Cayman Ltd (“Nu Cayman”)	Investment company	US$	Cayman
10	Nu Finanztechnologie GmbH (“Nu Finanz”)	Technology E-Hub	EUR	Germany
11	Nu BN México, S.A. de CV (“Nu México”)	Multiple purpose financial company	MXN	México
12	Nu BN Servicios México, S.A. de CV (“Nu Servicios”)	Credit card operations	MXN	México
13	Nu BN Tecnologia, S.A de CV (“Nu Tecnologia”)	Computer consulting service	MXN	México
14	Nu Colombia S.A. (“Nu Colombia”)	Credit card operations	COP	Colombia
15	Nu Argentina S.A. (“Nu Argentina”)	Talent E-Hub	ARS	Argentina
16	Cognitect, Inc. (“Cognitect”)	Technology E-Hub	US$	USA
17	Internet – Fundo de Investimento em Participações Multiestratégia (“Internet FIP”)	Investment company	BRL	Brazil
18	Nu Pagamentos S.A. – Instituição de Pagamentos (“Nu Pagamentos”)	Credit card and prepaid account operations	BRL	Brazil
19	Nu Financeira S.A. – SCFI (“Nu Financeira”)	Loan operations	BRL	Brazil
20	Nu Asset Management Ltda. (“Nu Asset”) – former “Nu Investimentos”	Fund manager	BRL	Brazil
21	Nu Distribuidora de Títulos e Valores Mobiliários Ltda. (“Nu DTVM”)	Securities distribution	BRL	Brazil
22	Nu Produtos Ltda. (“Nu Produtos”)	Insurance commission	BRL	Brazil
23	Nu Participações Financeiras S.A (“Nu Participações Financeiras”) – former “Easynvest Holding Financeira”	Holding Company	BRL	Brazil
24	Nu Invest Corretora de Valores S.A (“Nu Invest”) former “Easynvest TCV”	Investment platform	BRL	Brazil
25	Nu Participações S.A. (“Nu Participações”) – former “Easynvest Participações”	Holding Company	BRL	Brazil
26	Nu Corretora de Seguros Ltda. (“Nu Corretora de Seguros”) – former “Easynvest Corretora”	Insurance commission	BRL	Brazil
27	Easynvest Gestão de Recursos Ltda. (“Easynvest Gestão”)	Fund manager	BRL	Brazil
28	Vérios Gestão de Recursos S.A. (“Vérios”)	Fund manager	BRL	Brazil
29	Nu Plataformas – Intermediação de Negocios e Serviços Ltda (“Nu Plataforma”)	Services platform	BRL	Brazil
30	Nu Tecnologia S.A (“Nu Tecnologia”)	Multiple purpose financial company	UYU	Uruguay
31	Nu México Financiera, S.A. de C.C., - former(“Akala”)	Multiple purpose financial company	MXN	México
32	Nuplat S.A. ("Nuplat")	Talent E-Hub	UYU	Uruguay

 

33	Spin Pay Serviços de Pagamentos Ltda. ("Spin Pay")	Payment Hub	BRL	Brazil
34	Olivia AI, Inc ("Olivia Inc")	Services platform	US$	USA
35	Olivia AI do Brasil Participações Ltda. ("Olivia Participações")	Services platform	BRL	Brazil
36	Olivia AI do Brasil - Instituição de Pagamento Ltda. ("Olivia IP")	Services platform	BRL	Brazil

 

 

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the registration statement on Form S-8 (333-261924) of Nu Holdings Ltd. of our report dated April 20, 2022, with respect to the consolidated financial statements of Nu Holdings Ltd.

 

/s/ KPMG Auditores Independentes Ltda.

 

São Paulo, Brazil
April 20, 2022