EX-10.29 4 d52551dex1029.htm EX-10.29
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EXHIBIT 10.29
SERVICES AGREEMENT
This
Agreement
(the “
Agreement
”)
is entered
into by
and between
Popular,
Inc.
(“
Popular
”),
a
corporation
duly
organized existing
under the
laws of Commonwealth
of Puerto
Rico and
Carlos J.
Vázquez (“
Consultant
”) (each
a
“
Party
” and together the “
Parties
”), on December 7, 2023.
WHEREAS, Consultant is currently employed by Popular as Executive Vice
President and Chief Financial Officer;
WHEREAS, Consultant has decided to retire from Popular effective
March 31, 2024; and
WHEREAS, in connection with
Consulant’s voluntary
retirement, Popular desires to
retain Consultant following
his
retirement to provide
certain consulting services
to Popular, and Consultant
desires to provide
such consulting services
to Popular, all subject to the terms and conditions
set forth herein; and
NOW THEREFORE,
in consideration
of the
promises and
the mutual
covenants and
agreements contained
herein,
and
for
other
good
and
valuable
consideration,
the
receipt,
sufficiency
and
adequacy
of
which
are
hereby
acknowledged, the parties hereby agree as follows:
1.
Services
1.1
Service Engagement. Consultant represents and agrees that it shall provide and render to Popular such consulting
services, as may be
reasonably requested by Popular, (i) to facilitate
the transition of the Chief
Financial Officer’s
responsibilities to
Consultant’s
successor and
(ii) to
support other
general business
initiatives (collectively,
the
“
Services
”).
1.2
Independent Parties.
Consultant is
an independent
contractor.
Nothing in
this Agreement
creates an
employer-
employee relationship with Popular, nor a partnership, affiliation, joint
venture, agency relationship or other form
of business association between the Parties hereto.
2.
FEES, INVOICES AND PAYMENT
2.1
Fees and Reimbursable Expenses. For the Services provided under this Agreement, Popular shall pay Consultant
a
fee
equal
to $32,000
per month,
for
an aggregate
total fee
of $384,000
during
the
Term
(as
defined
below)
(“
Fees
”).
The
Fees
include
all
fees,
costs
and
administrative
and
overhead
expenses.
Popular
will
reimburse
Consultant only for those expenses previously agreed to by Popular and, unless otherwise stated, meal and travel
expenses will be reimbursed in accordance with Popular’s
guidelines, which will be provided upon request.
2.2
Payment. Popular will pay the Fees in United States Dollars, monthly in arrears, no later than the fifteenth (15th)
day of the
calendar month following
the month in which
such fee was earned.
Popular will deposit
the payment
electronically to the bank account designated by Consultant or as otherwise
mutually agreed to by the Parties.
2.3
Taxes.
Consultant shall pay all taxes related to
the Services provided under this Agreement. If
Popular is required
by Federal
or US
state Law
to withhold
taxes on
any amount
payable to
Consultant, Popular
will deduct
such
taxes
and
pay
them
to
the
appropriate
taxing
authority,
unless
Consultant
submits
evidence
of
a
government-
issued exemption or waiver. However,
Popular’s omission from withholding any applicable taxes, in whole or in
part, will not
discharge Consultant’s
responsibility to
pay any such
taxes when due.
Consultant shall indemnify
Popular from
any and all
liability that may
arise for nonpayment
of any applicable
taxes. Popular shall
pay any
state sales,
use or
value added
tax applicable
to the
Services or
products.
The withholding
Party shall
provide
proof of payment of the taxes withheld.
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3.
TERM AND TERMINATION
3.1
Term of the Agreement.
The Agreement will
commence on April
1, 2024 (the
“
Effective Date
”) and will
continue
in effect until March 31, 2025 (the “
Term
”).
3.2
Termination.
Either
Party
may
terminate
the
Agreement
for
cause
upon
written
notice
to
the
other
Party
as
follows:
(1) if the cause for termination relates to a violation of Laws (defined below), breach of confidentiality,
privacy
or
other
compliance
matter,
the
termination
may
be
effective
immediately
or
(2)
for
Consultant’s
noncompliance with its obligations under the
Agreement, the effective termination date will
be ten (10) days after
delivery of the notice of the breach to the breaching Party if it remains uncured
at the expiration thereof.
3.3
Effect
of
Termination.
Upon
expiration
or
termination
of
the
Agreement
for
any
reason,
Consultant
shall
promptly:
(a)
deliver
to
Popular
all
documents,
work
product,
and
other
materials,
whether
or
not
complete,
prepared by or on behalf of Consultant during the course of performing the Services for which Popular has made
the
corresponding
payment;
(b)
return
to
Popular
all
Popular-owned
property,
equipment,
or
materials
in
its
possession or
control; (c)
remove any
Consultant-owned property,
equipment, or
materials located
at Popular’s
locations; and (d) comply with
the provisions related to the destruction
of Popular’s Confidential Information
as
provided below.
3.4
Survival of
Terms.
Any provision
of the
Agreement that
expressly or
by implication
is intended
to continue
in
force shall survive termination or expiration of the Agreement.
4.
CONFIDENTIALITY OF INFORMATION
4.1
General.
The Parties acknowledge that, in furtherance of the Agreement, the Consultant (the “
Receiving Party
”)
may
receive
from
Popular
(the
“
Disclosing
Party
”)
Confidential
Information.
Unless
otherwise
agreed,
the
Disclosing Party will remain the owner of the Confidential Information and any derivative thereof and retains
its
entire
right,
title,
and
interest,
including
all
intellectual
property
rights,
therein.
Any
disclosure
of
such
Confidential
Information
hereunder
shall
not
be
construed
as
an
assignment,
grant,
option,
license,
or
other
transfer
of
any
such
right,
title,
or
interest
whatsoever
to
the
Receiving
Party.
Other
than
the
limited
rights
hereunder, the Receiving Party has no other rights
in or to any Disclosing Party’s Confidential
Information.
4.2
Definition
of
Confidential
Information.
The
term
“
Confidential
Information
”
means
any
and
all
of
the
Disclosing Party’s confidential
or proprietary non-public information or data, whether
in electronic or hard copy
format,
that
is collected,
generated,
developed,
or used
in its
business
or operations.
Confidential Information
includes: (1) nonpublic information or data related to actual or
potential employees, clients or suppliers including
agreement terms
and conditions
and lists;
(2) Intellectual
Property (as
defined below);
(3) products
or services
currently provided or to be developed, including
any market research, forecasts or surveys, plans, specifications,
documentation, quality guidelines, and analyses of strengths or weaknesses; (4) marketing and sales information,
such
as
techniques
and
data,
product
development
and
delivery
schedules
and
methods
and
logistical
requirements,
strategic
planning,
marketing
and
advertising
plans
and
budget;
(5)
technical
and
technological
information,
including
computer
software
and
related
documentation,
license
terms,
designs,
formulas
and
algorithms, hardware and systems
design, specifications, dataflow, networks, physical and
systems environments,
troubleshooting guidelines, test and
audit results, data and databases, interfaces,
performance characteristics and
reports;
(6)
financial
information,
including,
financial
statements,
revenue,
income,
overhead
costs,
profit
margins,
banking
and
financing
data,
budgeting
data
and
reports,
tax
information
and
pricing
policies;
(7)
organizational
information including,
merger,
acquisition and
expansion plans,
facilities and
equipment design
and location;
and (8)
Popular’s overall
strategies, specific
programs and
strategies utilized
by Popular;
and the
success or lack of
success of those programs and strategies.
To the extent applicable to the Services, Confidential
Information includes Popular’s
clients’ statutorily protected non
-public personal information or data
(“
Personal
Data
”) as defined in applicable Law and this Agreement. Confidential
Information does not include information
that the Receiving Party can
reasonably demonstrate: (1) was already
known to or was
rightfully in the possession
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of the Receiving Party at
the time of disclosure; (2)
becomes a matter of public
knowledge other than as a
result
of
a
breach
of
any
obligation
of
confidentiality
hereunder
or
under
any
confidentiality
agreement
that
the
Receiving Party
may have
with a third-party;
(3) was
independently developed
by the
Receiving Party
without
reference to
any Confidential
Information of
the Disclosing
Party; (4)
was lawfully
received from
a third-party
without
a
duty
of
confidentiality;
or
(5)
was
approved
for
release
by
the
Disclosing
Party
in
writing.
Notwithstanding
this
exception,
Popular’s
Intellectual
Property
and
Personal
Data
will
always
be
considered
Confidential Information.
4.3
Confidential Information Use and Disclosure.
(A)
Any disclosure by the Receiving
Party of any of the Disclosing Party’s
Confidential Information in order to
comply with
applicable Law,
or with a
valid order
issued by a
court or
governmental agency
of competent
jurisdiction
(a
“
Legal
Order
”)
shall
be
subject
to
the
terms
of
this
Section.
Before
making
any
such
disclosure,
the Receiving
Party shall
provide the
Disclosing Party
with: (a)
prompt written
notice of
such
requirement so
that the
Disclosing Party
may seek,
at its sole
cost and
expense, a
protective order
or other
remedy;
and
(b)
reasonable
assistance,
at
the
Disclosing
Party’s
sole
cost
and
expense,
in
opposing
such
disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and
assistance, the Receiving
Party (or other persons
to whom such Legal
Order is directed)
remains subject to
a Legal Order,
the Receiving Party shall
disclose no more
than that portion
of the Confidential Information
which,
on
the
advice
of
the
Receiving
Party’s
legal
counsel,
such
Legal
Order
specifically
requires
it
to
disclose and, on
the Disclosing Party’s request,
shall use
commercially reasonable efforts
to obtain
assurances
from
the
applicable
court
or
agency
that
such
Confidential
Information
will
be
afforded
confidential
treatment. Nothing herein shall require either Party to fail to honor a subpoena, court or administrative order
or a similar requirement
or request on a
timely basis. If Confidential
Information includes materials
subject
to the attorney-client
privilege, work product doctrine
or any other applicable
privilege concerning pending
or reasonably
foreseeable legal
proceedings or
governmental investigations,
the sharing of
such material
is
not intended to, and shall
not, waive or diminish in any
way the confidential nature of
the information or its
continued protection under the attorney-client privilege, work product doctrine or other applicable privilege.
(B)
The
Consultant
shall
not,
without
Popular’s
prior
written
consent:
(i)
use,
reproduce,
sell,
market,
disseminate, modify or disclose, reverse engineer, translate, discover the source code or trade secrets, render
anonymous, aggregate, segregate or
mine any Confidential
Information for any
purpose other than
to perform
the
obligations
for
which
the
Confidential
Information
is
being
disclosed;
(ii)
disclose
the
Confidential
Information; (iii) use,
access, disclose, process,
transmit, share or
store Confidential Information
outside of
the jurisdiction of the United States; or (vi) remove
any proprietary rights or confidentiality legend from the
Confidential Information.
4.4
Confidential
Supervisory
Information.
Consultant
agrees
that
it
will
(i)
not
disclose
Confidential
Supervisory
Information
(“
CSI
”)
to
any
person
or
entity
without
the
prior
written
approval
of
Popular
and
the
pertinent
banking regulatory agency and (ii)
not use the CSI
for any purpose other than
as necessary to provide
the Services
under this Agreement. “Confidential
Supervisory Information” or “CSI”
means nonpublic information that is by
law
or
regulation
exempt
from
disclosure
and
that
is
or
was
created
or
obtained
in
furtherance
of
a
banking
regulatory
agency’s
supervisory,
investigatory
or
enforcement
activities
relating
to
a
supervised
financial
institution, together with
any information derived
from or related to
such information. Confidential
Supervisory
Information is confidential and
privileged and remains at
all times the
property of the
pertinent banking regulatory
agency.
4.5
Protection
of Confidential
Information.
The Consultant
agrees to
implement and
maintain updated
during the
Term, controls necessary and
appropriate for the
Consultant in
order to protect
Popular’s Confidential Information
against anticipated threats
or hazards or
unauthorized access to
or use thereof.
If the Consultant discovers
it has
suffered
an unauthorized
access, disclosure,
loss or
use of
Popular’s
Confidential Information
it will
promptly
4
notify the incident to Popular and will take all reasonable steps to immediately mitigate, remedy and prevent any
further disclosure and assist the Popular in any investigation regarding
the incident, all at its expense.
4.6
Destruction. Upon Popular’s
request, the Consultant
shall promptly return
or destroy all copies
of the Popular’s
Confidential
Information,
whether
in
physical
or
digital
formats,
and
derivatives
and
metadata
related
thereto
including copies embedded
in computer files,
extracts from computer
files and analyses
or other material
based
upon the Confidential
Information. Should Popular
request evidence of the
destruction of any such
Confidential
Information, the Consultant
shall submit, within
thirty (30) calendar
days of such
request (or such
other time as
agreed to
between the
Parties), an
attestation executed
by the
Consultant certifying
that any
such Confidential
Information has been destroyed.
5.
COMPLIANCE AND AUDIT
5.1
Compliance Requirements.
(A)
Legal Requirements in General.
Consultant will provide the Services and comply with his obligations under
the Agreement
in a
professional manner
and in
accordance with
industry best
practices and
in compliance
with
applicable
federal,
state,
local,
and
foreign
law,
rule,
regulation,
administrative
determinations,
and
guidance,
as
well
as
the
judgments
and
orders
issued
by
competent
government
authorities
thereunder
(“Laws”), and professional code of conduct.
(B)
OFAC.
Consultant represents and warrants that: (a) he complies, and shall at all times during the Term will
continue to comply,
with the regulations of
the U.S. Treasury
Department Office of
Foreign Assets Control
(“
OFAC
”) and any statute, executive order, or rule relating thereto, as well as any similar
laws of a relevant
jurisdiction that may be applicable to the Consultant; (b) he or persons acting on Consultant’s
behalf do not,
and
shall
not
during
the
term
of
the
Agreement,
appear
on
OFAC’s
Specially
Designated
Nationals
and
Blocked Persons List (“
SDN List
”), Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification
List (“
SSI List
”), or on any other similar
list maintained by OFAC
or any other governmental authority;
(c)
he is not located in any country or
territory that is the subject to the
broad U.S sanctions prohibitions; and (d)
Consultant, is not
as of the
Effective Date,
the subject of
any investigation
relating to
a sanctions violation
or a potential
sanctions violation
and if any
is found in
the future to
be in such
a violation, it
will promptly
inform Popular, to the extent not prohibited
by Law.
(C)
Anti-Bribery/Anti-Corruption.
1)
Consultant acknowledges and agrees that he complies and during the Term
will continue to comply, with all
applicable anti-bribery and anti-corruption Laws, including, but not limited to, the Foreign Corrupt Practices
Act (15
USC §dd-1,
et. seq.) (“ABC
Laws”).
To
this effect,
Consultant agrees
that, while performing
the
Services or purporting to act on behalf of Popular, Consultant will not: (1) make, offer,
promise or authorize
the payment of anything of value (including, but
not limited to, unlawful gifts, bribes, meals, entertainment,
kickbacks or benefits), either directly or through a third -party, to any official or employee of any local, U.S.
or foreign government
authority,
organization or instrumentality
thereof, or to any
political party or official
thereof or
to any candidate
for political office
(a “Public Official”)
for any purpose
that violates applicable
ABC Laws, in
order to: (i)
influence any act
or decision of
such Public
Official, including
a decision to
do
or omit
to do
any act
in violation
of his
lawful duties
or proper
performance of
functions; (ii)
induce such
Public Official to use its authority or position with any government entity or with any other person or entity,
to influence any governmental
act or decision; (iii)
obtain or retain business
for, direct
business towards, or
secure an
improper advantage
for,
Popular; or
(iv) perform
any act
or make
any decision
that is
otherwise
prohibited by applicable law; or (2) solicit or accept
anything of value in connection with the performance of
any
service or
activity for
or on
behalf of
Popular.
Furthermore,
unless specifically
requested, Consultant
agrees not
to, directly
or through an
intermediary: (1)
contact any federal,
state, local or
foreign regulatory
5
body or Public Official regarding any matter or issue in connection with the
Services for Popular; (2) engage
in lobbying efforts on
behalf of Popular, or
(3) make payments
to a Public
Official on behalf of
Popular solely
to expedite or secure
the performance of routine,
non-discretionary government actions
to which Popular is
already entitled (“facilitating payments”).
2)
Consultant represents that, to the best of Consultant’s knowledge, he does not have a close association based
on a
family,
romantic or
friendship
relationship
(“personal
relationship”)
with a
Public Official
who may
need to act
or omit to
act directly or
indirectly as part
of its lawful
duties, in relation
to any part
of the Services
Consultant renders for Popular.
3)
Consultant agrees to report in writing to
Popular any known or suspected violations of
applicable ABC Laws
or the terms of
this Section that
occur in connection with Consultant’s performance of
the Services, including
if he identifies
that any unlawful
payment has occurred
in violation of
the above or
if he receives
a request
or solicitation for any such payment.
5.2
Code of
Ethics. Consultant
represents that
he has
read, and
shall comply
with, the
Code of
Ethics for
Popular
Suppliers,
as
may
be
amended
from
time
to
time,
a
copy
of
which
is
located
at
https://investor.popular.com/eng/corporate
-governance/default.aspx or such other site identified by Popular.
5.3
Monitoring and Audit Rights.
(A)
Consultant acknowledges that Popular, its internal or external auditors and
its regulators may perform audits,
assessments, examinations,
or reviews
of Consultant’s
Services (“
Audit
”) in
order to
confirm compliance
with the Agreement, as well as with Laws and industry standards. Upon Popular’s written request,
at a time,
frequency
and
place
reasonably
agreed
to
between
the
Parties,
Consultant
shall
submit
the
information,
provide periodic
reports (including
those of
internal controls,
systems, financial
condition or
compliance),
respond to risk
questionnaires or allow
access to
relevant Personnel, systems,
documents or physical
premises
in a
timely manner
so as
to permit
Popular to
comply with
the Audit.
If an
Audit reveals
areas of
material
concern
to
Popular,
the
Parties
will
agree
on
a
plan
to
address
the
deficiency
in
an
adequate
and
timely
manner.
If Consultant does not address such material deficiencies in accordance with the plan, Popular may
modify
the frequency
of the
monitoring
activities at
Consultant’s
expense or
terminate the
Agreement
for
cause.
6.
INTELLECTUAL PROPERTY
6.1
Ownership.
Each Party acknowledges
that the other
Party owns
the intellectual property
associated with or
related
to the other Party and, in the
case of Popular, its affiliates,
and their respective businesses, products
and services
including copyrights, patents,
patent disclosures and
inventions (whether patentable
or not), trademarks,
service
marks,
trade secrets,
know-how,
and other
confidential information,
trade dress,
trade names,
logos, corporate
names and domain
names, together with
all of
the goodwill associated
therewith, and derivative
works in whatever
medium
whether
or
not
registered,
and
all
related
rights
therein
(“Intellectual
Property”).
Each
Party
further
acknowledges
that it
receives no
right, title
to or
interest in
or to
any of
the other
Party’s
Intellectual Property
other than as provided under the Agreement.
6.2
Popular Ownership
of Work
Product. Unless
otherwise explicitly
agreed to
in writing by
the Parties, Popular
is
and
will
be
the
sole
and
exclusive
owner
of
all
right,
title
and
interest
throughout
the
world
in
and
to
all
deliverables that are the results and proceeds of the Services performed under the Agreement, whether developed
singly or jointly with
any other person or
entity, for or on behalf
of Popular (“Work Product”).
The Work Product
6
includes,
without
limitation,
all
works
of
authorship,
data,
materials
or
information
gathered,
originated,
developed,
processed
or
obtained,
and
all
program
codes
or
documentation
together
with
any
associated
copyrights. Consultant agrees that
all Work Product will be
deemed “work for
hire” as defined
by Law for
Popular
and all
copyrights therein
automatically and
immediately vest
in Popular.
If for
any reason
Work
Product does
not constitute
work for
hire, Consultant
irrevocably assigns
(and will
perform all
acts necessary
to make
such
assignment,
including
agreements
from
its
Personnel
or
Subcontractors)
to
Popular,
for
no
additional
consideration, the entire right, title, and interest throughout the world in and
to such Work Product.
7.
LIABILITY;
INDEMNIFICATION
7.1
Indemnity.
Each Party
shall indemnify,
hold harmless,
and defend
the other
Party and
each of
its affiliates
and
their
respective
officers,
directors,
employees,
agents,
successors,
and
assigns
(collectively,
“
Indemnitees
”)
against
losses,
damages,
liabilities,
deficiencies,
claims,
actions,
judgments,
settlements,
interest,
awards,
penalties,
fines,
costs,
or
expenses,
including
professional
fees
and
reasonable
attorneys’
fees
(collectively,
“
Losses
”), related
or incidental
to, or
arising
out of:
(i)
the actual
or alleged
violation of
Laws; (ii)
actual or
alleged act, failure to act
or omission, constituting fraud, negligence or
willful misconduct relating to the
Services
(iii)
a
third-Party
claim,
suit,
or
proceeding
arising
out
of,
related
to,
or
alleging
infringement
of
intellectual
property right by the Work Product or any Intellectual Property used to provide the Services or made available to
Popular
as
part
of
the
Services;
or
(iv)
claims
alleging
injury
or
damage
to
persons
or
property
caused
by
Consultant during the
provision of its Services.
The indemnification obligations
shall survive the termination
of
the Agreement.
7.2
Limitation
of
Liability.
NEITHER
PARTY
SHALL
BE
LIABLE
TO
THE
OTHER
PARTY
FOR
ANY
INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING LOSS
OF
PROFITS,
REVENUE,
BUSINESS
OR
SAVINGS,
WHETHER
IN
AN
ACTION
IN
CONTRACT
OR
TORT,
EVEN
IF
SUCH
DAMAGES
ARE
POSSIBLE
OR
FORESEEABLE.
LIABILITY
FOR
GENERAL
CLAIMS FOR
BREACH OF
CONTRACT WILL
BE LIMITED
TO AN
AMOUNT EQUIVALENT
TO THE
FEES FOR SERVICES
PAID
OR PAYABLE
BY POPULAR TO
CONSULTANT
DURING THE TWENTY-
FOUR MONTHS
PRIOR TO
THE DATE
OF THE
CLAIM.
NOTWITHSTANDING
ANYTHING TO
THE
CONTRARY HEREIN, THE LIMITATIONS
SET FORTH IN THIS SECTION SHALL NOT APPLY
IN THE
EVENT OF EITHER
PARTY’S
GROSS NEGLIGENCE,
WILLFUL MISCONDUCT,
FRAUD, VIOLATION
OF LAW (INCLUDING THOSE RELATED TO PRIVACY
AND DATA
PROTECTION), OR THIRD-PARTY
CLAIMS FOR INTELLECTUAL PROPERTY
INFRINGEMENT.
8.
RESTRICTIVE COVENANTS
8.1
Non-Compete. During the
Term of this Agreement,
Consultant agrees that
he will
not work or
associate (including
as a
director,
officer,
employee, partner,
consultant, agent
or advisor)
with or
otherwise provide
services to,
or
operate, manage or
control in any way,
a Competitive Enterprise
performing the same
or similar duties as
those
which
were
performed
by
him
during
the
12-month
period
immediately
preceding
the
Effective
Date
of
this
Agreement.
“Competitive
Enterprise”
means
any
business
enterprise
that
either
(1)
engages in
commercial
or
consumer
financial
services, retail
banking,
internet
banking,
or other
financial,
investment,
financial
advisor,
trust or insurance services
to either commercial or
consumer customers in the Commonwealth
of Puerto Rico or
the States
of New
York
or Florida,
or (2)
holds a
5% or
greater equity,
voting or
profit participation
interest in
any enterprise that engages in such a competitive activity within the Commonwealth of Puerto Rico or the States
of New York
or Florida.
8.2
Non-Solicitation of Customers.
During the Term
of this Agreement, Consultant
agrees that he will
not, directly
or indirectly or
through associates, agents,
or employees solicit,
participate in or
assist in the
solicitation of any
of
Popular’s
customers
serviced
by
him
or
with
whom
he
had
Material
Contact
and/or
regarding
whom
he
received Confidential Information
(as defined in
Popular’s Code of
Ethics) during the
three-year period prior
to
7
Effective Date
who were
still customers
of Popular
during the
immediately preceding
12
-month period,
for the
purpose of
providing products
or series
in competition
with Popular’s
products or
services. “Material
Contact”
means interaction between Consultant
and the customer within
the three-years prior to
the Effective Date which
takes place to manage, service or further the business relationship.
8.3
Non-Solicitation of Popular
Employees. During the
Term of
this Agreement, Consultant
agrees that he will
not,
directly
or
indirectly
or
through
associates,
agents,
or
employees
solicit,
recruit
or
assist
in
the
solicitation
or
recruitment of any
employee or consultant of
Popular (or who was
an employee or consultant
of Popular within
the prior
six months
of the
Effective
Date) for
the purpose
of encouraging
them to
leave Popular’s
employ or
sever an agreement for services.
8.4
Definition. The term “Solicit”, when used
in this section, will mean any direct
or indirect communication of any
kind regardless of who initiates it, that in any way invites, advises, encourages or requests any person to take any
action;
provided
that
such
term
will
not
be
deemed
to
include
solicitation
by
public
advertisement
media
of
general distribution (i.e., not targeted to present employees, consultants
or customers of Popular) without specific
instructon or direction by Consultant.
9.
GENERAL TERMS
9.1
Additional
Representations
and
Warranties.
Each
Party
represents
and
warrants
to
the other
Party
that
(a) the
Agreement will not violate the terms of any other agreement or contract to which such Party is bound nor require
any
third-party
consent or
approval;
and (b)
the Agreement
constitutes a
valid
and
binding
obligation
of such
Party,
enforceable against
it in accordance
with its terms
except to the
extent that enforceability
may be limited
by
bankruptcy,
insolvency,
receivership,
moratorium,
reorganization
or
other
similar
laws
affecting
the
enforcement of creditors’ rights generally or general principles of equity
or considerations of public policy.
9.2
No
Waiver.
The failure
or delay
by a
Party
to require
performance
of
the other
Party of
any
provision
of the
Agreement shall
not affect
the right
of such
Party to
enforce the same
provision, nor
shall the
waiver by
either
Party of
any breach
of any
provision hereof
be taken
or held
to be
a waiver
of any
succeeding breach
of such
provision, or as a waiver of the provision itself. The Parties may exercise any right or remedy in order to enforce
the terms and conditions of the Agreement.
9.3
Notice. All notices
or communication
required hereunder
must be made
in writing to
the corresponding
Party’s
contact and address. Legal notices (including claims, breach of contract, indemnification requests,
and regulatory
compliance
issues) from
Consultant
to
Popular
must
be
sent
by
messenger
with
acknowledgement
of
receipt,
certified
mail
or
national
courier
with
copy
to
the
Legal
Representative
in
the
same
manner.
Any
changes
or
additions to the above contact information must be notified in writing with receipt acknowledged. Notification to
the Party’s contact of record shall be presumed
correct.
9.4
Severability. Should a court or arbiter with competent
jurisdiction determine that any clause is illegal, invalid, or
unenforceable under
present or future
law,
such provision
will be fully
severable, and
the remaining
provisions
of the Agreement will remain in full force and effect.
9.5
Governing Law and Jurisdiction.
The Agreement and all
transactions contemplated therein
will be governed by,
and construed and enforced in accordance with, the laws of the Commonwealth of Puerto Rico, without regard to
any
conflicts
of
law
provisions
thereof.
Any
civil
action
or
legal
proceeding
arising
out
of
or
relating
to
the
Agreement will be
brought exclusively in
the courts of the
Commonwealth of Puerto
Rico. Each Party consents
to the jurisdiction of such court
in any such civil action or
legal proceeding and waives any objection to
the venue
of any such
civil action or
legal proceeding in
such court. EACH
PARTY
KNOWINGLY AND VOLUNTARILY
WAIVES
ANY
RIGHT TO
A TRIAL
BY JURY
IN ANY
ACTION OR
PROCEEDING
TO
ENFORCE OR
DEFEND ANY RIGHTS OR DUTIES UNDER THIS AGREEMENT.
8
9.6
Assignment.
Popular
may
assign,
whether
voluntarily
or
involuntarily,
by
operation
of
law
or
otherwise,
the
Agreement or any rights or obligations under the Agreement
to any subsidiary or affiliate without providing prior
written notice to Consultant. Consultant may not assign, whether
voluntarily or involuntarily, by operation of law
or
otherwise
his
rights
and
obligations
under
the
Agreement
without
Popular’s
prior
written
consent,
which
consent
may
be
withheld
at
Popular’s
convenience
which
may
include
following
its
vendor
management
procedures prior to allowing the assignee to provide the Services.
9.7
Entire
Agreement
and
Amendments.
The
Agreement
and
any
Annex,
Schedule,
appendix, exhibit,
certificate,
amendment or other document attached or subsequently attached hereto or to
which reference is made herein will
be incorporated and made a part hereof as if fully set forth
herein and will be subject to the terms and conditions
hereof and together with the Agreement will constitute the entire contract between the Parties, and supersedes all
prior
or
contemporaneous
agreements
or
understandings,
written
or
oral,
concerning
the
subject
matter
of
the
Agreement.
The Agreement
may not
be modified,
amended or
supplemented in
any manner
except by
mutual
agreement of the Parties and set forth in a writing signed by a duly authorized representative
of each Party.
9.8
No Third-Party
Beneficiaries.
The Agreement
shall be binding
upon and
inure to the
benefit of the
Parties and
their respective successors
and permitted assigns
and, unless otherwise
agreed to by
the Parties, nothing
herein,
express or
implied, is
intended to
or shall
confer upon
any other
person any
legal or
equitable right,
benefit or
remedy of any nature whatsoever under or by reason of the Agreement.
9.9
EACH
PARTY
ACKNOWLEDGES
THAT,
BEFORE
EXECUTING
THIS
AGREEMENT,
SUCH
PARTY
HAS
HAD
THE
OPPORTUNITY
TO
SEEK
THE
ADVICE
OF
INDEPENDENT
LEGAL
COUNSEL
(WHETHER OR NOT IT ACTUALLY ELECTED TO DO SO), AND HAS READ AND UNDERSTOOD ALL
OF
THE
TERMS
AND
PROVISIONS
OF
THIS
AGREEMENT.
THIS
AGREEMENT
SHALL
NOT
BE
CONSTRUED AGAINST ANY PARTY
BY REASON OF THE DRAFTING OR PREPARATION
HEREOF.
9.10
Counterparts. The
Agreement may
be executed
in one
or more
counterparts, each
of which
will be
deemed an
original, but all of which taken together will
constitute one and the same instrument. Signatures to
the Agreement
transmitted by
electronic mail
in .pdf
form, or
by any
other electronic
means intended
to preserve
the original
graphic
and
pictorial
appearance
of
a
document,
will
have
the
same
effect
as
physical
delivery
of
the
paper
document
bearing
the
original
signature.
The
Parties
may
sign
the
Agreement
using
DocuSign,
or
any
other
electronic signature application.
9.11
Electronic
Signature.
Each
Party
represents
that
if
the
Agreement
is
executed
with
an
electronic
signature
application,
the
electronic
signatures
are
the
same
as
handwritten
signatures
for
the
purposes
of
validity,
enforceability, and admissibility and will not dispute the legally binding nature thereof on the basis that the terms
were
accepted
with
an
electronic
signature.
Furthermore,
the
Parties
agree
they
(a)
shall
comply
with
all
applicable electronic records and signatures laws, including but not limited to
the Electronic Signatures in Global
and
National
Commerce
Act;
and
(b)
shall
ensure
that
their
respective
electronic
signatures
vendor
has
the
necessary processes and controls to comply with the confidentiality obligations
of the Agreement.
Signature Page Follows
9
IN WITNESS WHEREOF,
the Parties have executed this Agreement on December 7, 2023.
Popular,
Inc.
Consultant
/s/ Ignacio Alvarez
/s/ Carlos J. Vázquez
Name: Ignacio Alvarez
Name: Carlos J. Vázquez
Title: President and Chief Financial Officer