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1
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.
 
 
 
 
 
 
2
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
 
 
 
3
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