UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

Transcription

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO RUBEN GARCIA, derivatively for the benefit of and on behalf of the Nominal Defendant POPULAR INC., Civil Action No. 3:09-cv JAG-BJM Plaintiff, vs. RICHARD CARRIÓN, DAVID H. CHAFEY, JORGE A. JUNQUERA, ROBERTO H. HERENCIA, MANUEL MORALES, FRANCISCO M. REXACH, JUAN J. BERMÚDEZ, MARÍA L. FERRÉ, WILLIAM J. TEUBER, JOSÉ R. VIZCARRONDO, FREDERIC V. SALERNO, MICHAEL J. MASIN, AND PRICEWATERHOUSECOOPERS, LLP, Defendants, and POPULAR, INC., a Puerto Rico Corporation, Nominal Defendant. EXHIBIT C TO THE STIPULATION AND AGREEMENT OF SETTLEMENT: NOTICE OF SETTLEMENT OF SHAREHOLDER DERIVATIVE ACTION

2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO RUBEN GARCIA, derivatively for the benefit of and on behalf of the Nominal Defendant POPULAR INC., Civil Action No. 3:09-cv JAG-BJM Plaintiff, vs. RICHARD CARRIÓN, DAVID H. CHAFEY, JORGE A. JUNQUERA, ROBERTO H. HERENCIA, MANUEL MORALES, FRANCISCO M. REXACH, JUAN J. BERMÚDEZ, MARÍA L. FERRÉ, WILLIAM J. TEUBER, JOSÉ R. VIZCARRONDO, FREDERIC V. SALERNO, MICHAEL J. MASIN, AND PRICEWATERHOUSECOOPERS, LLP, Defendants, and POPULAR, INC., a Puerto Rico Corporation, Nominal Defendant. NOTICE OF SETTLEMENT OF SHAREHOLDER DERIVATIVE ACTION TO: ALL SHAREHOLDERS OF POPULAR, INC. YOU ARE HEREBY NOTIFIED that, pursuant to Rule 23.1 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the District of Puerto Rico (the Court, a proposed settlement (the Settlement has been reached, subject to Court approval, in the above-captioned shareholder derivative action, Garcia v. Carrión, et al., No. 3:09-cv JAG-BJM (D.P.R. (the Garcia Action. The same Settlement resolves a substantially similar shareholder derivative action, captioned Díaz v. Carrión, et al., No. K AC (603 (P.R. Ct. of First Instance (the Díaz Action and, collectively with the

3 Garcia Action, the Derivative Actions, currently pending in the Commonwealth of Puerto Rico Court of First Instance, San Juan Part (the Commonwealth Court. 1 A hearing (the Settlement Hearing will be held before the Honorable Jay A. Garcia Gregory, of the United States District Court for the District of Puerto Rico, at the Clemente Ruíz Nazario United States Courthouse, 150 Carlos Chardón Street, Room [ ], San Juan, Puerto Rico 00918, on, 2011, at m., to determine whether the Settlement of the Garcia Action is fair, reasonable, and adequate and in the best interests of Popular and its shareholders; to determine whether the Court should enter the Garcia Order and Final Judgment approving the Settlement; to consider whether Lead Counsel s application for attorneys fees and reimbursement expenses in the total amount of $2,100,000 (the Attorneys Fees and Expense Award is reasonable and should be granted; and to consider whether Lead Counsel s request to pay the Garcia Plaintiff and the Díaz Plaintiff an incentive award not to exceed $10,000 in the aggregate for all such plaintiffs and to be paid out of the Attorneys Fees and Expense Award, if any, should be granted. This notice describes the rights you may have under the Settlement of the Garcia Action and what steps you may, but are not required to, take related to the Settlement of the Garcia Action, the terms and conditions of which are set forth in the Stipulation dated June 3, 2011, and filed in the Garcia Action on, If the Court approves the Settlement, the Garcia Parties will ask the Court at the Settlement Hearing to enter the Garcia Order and Final Judgment dismissing the Garcia Action on the merits and with prejudice. Because the Díaz Action is pending in the Commonwealth Court, and not in the United States District Court for the District of Puerto Rico, the Settlement Hearing will not address the proposed resolution or dismissal of the Díaz Action. However, if the proposed Settlement is approved by the Court in the Garcia Action, the parties to the Díaz Action intend to jointly request that the Commonwealth Court dismiss the Díaz Action with prejudice, in accordance with the terms of the proposed Settlement. Thus, the proposed Settlement is intended to resolve both the Garcia Action and the Díaz Action. The Garcia Parties prepared this notice, which does not constitute the findings of the Court and should not be construed as an expression of any opinion of the Court as to the merits of any of the claims or defenses raised by any of the Settling Parties. IF YOU ARE A SHAREHOLDER OF POPULAR, INC., YOUR RIGHTS MAY BE AFFECTED BY THIS SETTLEMENT 1 Any capitalized terms used in this Settlement Notice that are not otherwise defined herein shall have the meanings ascribed to them in the Stipulation and Agreement of Settlement dated June 3, 2011 and entered into by and among the Garcia Parties (the Stipulation. A copy of the Stipulation is available at: www. popular.com/settlement-notice, and -2-

4 BACKGROUND OF THE LITIGATION 1. On and after May 14, 2009, two class action lawsuits were filed in the United States District Court for the District of Puerto Rico against Popular, Inc. ( Popular or the Company and certain of its officers and directors, alleging that Popular violated the federal securities laws by disseminating false and misleading statements to the market concerning the value of its deferred tax assets. These securities class actions were later consolidated into a single action captioned Hoff v. Popular, Inc., et al., No GAG-BJM (the Hoff Action. 2. On June 5, 2009, Ruben Garcia, a purported shareholder of Popular, filed a verified shareholder derivative complaint on behalf of nominal defendant Popular, in the Court, Garcia v. Carrión, et al., No. 3:09-cv JAG-BJM, alleging claims against certain directors and officers of Popular for breach of fiduciary duty, gross mismanagement and waste of corporate assets in connection with the conduct alleged in the Hoff Action. 2 On September 9, 2009, the Díaz Plaintiff filed a substantially similar shareholder derivative complaint Díaz v. Carrión, et al., No. K AC (603 (P.R. Ct. of First Instance in the Commonwealth Court. On October 15, 2009, the Garcia Defendants moved to dismiss the Garcia complaint for failure to make a demand on the board of directors before initiating litigation. On November 20, 2009, the Garcia Plaintiff filed an amended complaint, and, on December 21, 2009, the Garcia Defendants moved to dismiss that amended complaint. On August 11, 2010, the Court granted in part and denied in part the Garcia Defendants motion to dismiss. The Court dismissed the gross mismanagement and corporate waste claims, but declined to dismiss the breach of fiduciary duty claim. On January 18 19, 2011, the parties to the Hoff, Garcia, and Díaz Actions engaged in nonbinding mediation before the Honorable Nicholas Politan (Ret. (the Mediation. As a result of the Mediation, the parties to the Hoff Action reached a settlement, which is not the subject of this Settlement Notice. In addition to the two days of in-person mediation on January regarding the Derivative Actions, throughout the months of February and March, Judge Politan continued to mediate settlement discussions relating to the Derivative Actions. During these negotiations, the parties to the Derivative Actions exchanged written proposals for corporate governance changes at Popular. The parties to the Derivative Actions thereupon agreed to resolve the Derivative Actions, subject to the terms and conditions described in the Stipulation. REASONS FOR THE SETTLEMENT 3. Plaintiffs believe that the Derivative Claims have merit and that the evidence supports them, and yet they recognize and acknowledge the expense and time required to prosecute the Derivative Claims through trial and appeals. Plaintiffs also take into account the uncertain outcomes and concomitant risks associated with litigating the Derivative Actions, as 2 The Garcia Action named the following former and current directors and officers as defendants: Richard L. Carrión; David H. Chafey; Jorge A. Junquera; Roberto R. Herencia; Manuel Morales; Francisco M. Rexach, Jr.; Juan J. Bermúdez; María L. Ferré; William J. Teuber, Jr.; José R. Vizcarrondo; Michael J. Masin; and Frederic V. Salerno (the Individual Defendants. -3-

5 well as the difficulties and delays inherent in derivative litigation generally. Plaintiffs are mindful that Defendants have asserted substantial defenses. Based upon the aforementioned considerations, Plaintiffs and Plaintiffs counsel believe that the Settlement is fair, reasonable, adequate and in the best interest of Popular and its shareholders, and, therefore, fully and finally settle the Derivative Actions subject to the terms and conditions set forth in the Stipulation. 4. The Individual Defendants have denied and continue to deny each and every claim and contention alleged in the Complaints underlying the Derivative Actions. Moreover, the Individual Defendants have denied and continue to deny any and all allegations that Popular has suffered any damages by reason of the conduct alleged in the Complaints underlying the Derivative Actions. Defendants nevertheless have concluded that further litigation of the Derivative Actions could be protracted and expensive. Thus, Defendants have concluded that full and final settlement of the Derivative Actions, in the manner and upon the terms and conditions set forth in this Stipulation, is desirable. 5. In light of these considerations, Plaintiffs and Defendants, though their counsel, engaged in arm s-length negotiations and have agreed that the Settlement, the terms of which are set forth entirely in the Stipulation, is in the best interest of Popular and its shareholders. Nominal defendant Popular does not and shall not contest that the pendency of the Garcia Action was a substantial cause of the Settlement or that the Settlement confers a substantial benefit upon Popular and its shareholders as described below. TERMS OF THE SETTLEMENT 6. In full settlement of the Derivative Actions and the Released Claims, as consideration for the Stipulation, Popular has agreed, within thirty (30 days of the Effective Date of the Settlement, to implement certain corporate governance practices, measures and policies (the Corporate Governance Measures. These Corporate Governance Measures will remain in effect for a minimum of three years, unless a majority of the Independent Directors, acting in good faith and with notice to Plaintiffs Counsel, finds that due to changed circumstances it is in the best interest of Popular and its shareholders that the Corporate Governance Measures implemented pursuant to the Settlement be modified. The Corporate Governance Measures are set forth in Exhibit A to the Stipulation and reproduced here: CORPORATE GOVERNANCE MEASURES I. Both the Board of Directors, and/or as the case may be, the appropriate Board committee, will consider whether to, and in appropriate circumstances as determined at their discretion, will: (a Retain and consult with outside experts and use their own best judgment not only to evaluate the issues that come before them in the ordinary course of their business, but also to act proactively in order to determine for themselves the particular issues that merit oversight, analysis and review; -4-

6 (b Review whether corporate governance structure and compensation policies of the Company properly balance the interests of the Company s stakeholders; (c Review the development and implementation of the Company s tax planning strategy and tax planning strategy processes, and what the lines of reporting for tax planning strategies are; (d Review compliance with Popular s ethical codes and monitor ongoing ethics education and other compliance activities for its Executive Officers and Board; (e Maintain an anonymous whistleblower hotline either by phone, e- mail or other similar system and receive all whistleblower complaints to be logged and provided in writing to the Office of the General Counsel and promptly report all complaints relating to accounting or financial reporting matters directly to the Audit Committee. II. Each member of the Audit Committee will be required to participate in a continuing education program directly related to the functions of that committee from a reputable and responsible source within 180 days of beginning service on the Audit Committee and at least once every three years thereafter (unless the member has had, as a result of other board service or otherwise, continuing education within three years; III. Each of the Audit, Governance and Compensation Committees will be required annually to review and revise, if necessary, its respective committee charters and report to the full Board on its activities. Each of these Committees will also perform an annual self-assessment of its operation and report same to the Board. IV. The Audit Committee will be required to review and discuss annual and quarterly financial statements, the MD&A and risk factors included in Forms 10-Q and 10-K and press releases related to quarterly/annual earnings and any other significant announcement related to earnings. These discussions would include, insofar as the Audit Committee in its discretion determined appropriate, separate sessions with the internal and external auditors. (a The Audit Committee will review major company tax strategies (including the applicability and use of deferred tax assets at least quarterly and report in writing on same at least once per year to the full Board. (b The Risk Management Committee will monitor the Company s system of risk assessment and risk management and report -5-

7 periodically to the Board regarding material risk and steps taken to mitigate such risks. V. Each member of the Board of Directors will be required to timely (within 20 calendar days update the Board with any new information in relation to interests or relationships relevant to his or her independence. In addition to annual assessments, the Board would re-assess its prior determinations of independence when any new interests or relationships are disclosed by a Director. VI. Section III of Popular s Corporate Governance Guidelines, Board Composition, currently is structured whereby the CEO/Chairman roles are held by the same individual. So long as the positions of Chairman and CEO are held by the same individual, Popular will maintain provisions whereby the Company will appoint a Lead Independent Director who has power, among other things, to call meetings of the independent directors and appoint counsel for the independent directors. 3 VII. To ensure the continuing independence of the Board of Directors, in the event of the death, resignation or removal of any independent director, Popular will maintain provisions to ensure that the absence of the independent director would be filled within three months with another independent director. In the event that an independent director s position is not filled within three months, there will be other remedies to ensure that any vote of the Board of Directors is decided by a majority vote of the independent board members (e.g., requiring that a non-independent director abstain in all votes until such time as a new independent director is properly elected. VIII. Popular s Corporate Governance Guidelines, Section X, Executive Session, provides that the Lead Director will preside over meetings in executive session of the independent directors. Popular will maintain provisions that the members of the Board who are independent of management should hold periodic meetings in executive session, i.e., without the attendance or participation of members of management. IX. Popular s Corporate Governance Guidelines, Section XI, The Committees of the Board currently provide that each of the Corporate Governance and Nominating Committee and the Audit Committee is composed of at least three directors who are independent under the NASDAQ rules. Popular will maintain provisions that the Audit, Compensation and Nominating Committees will be comprised entirely of 3 The term independent director herein means independent under the then existing NASDAQ rules. -6-

8 such independent directors and that each of these Committees should meet outside of the presence of management on a regular basis. X. The Compensation Committee will be charged with ensuring, in the context of its oversight of the development and implementation of executive compensation programs, that the incentive compensation plan in place for senior management does not provide incentives for undue risk taking or reward behavior or decisions which are unethical, and creates an appropriate balance between long-term and short-term success, and that the overall goal and purpose of the Corporation s incentive compensation system are consistent with these policies. The Compensation Committee will report, in writing, at least annually to the full Board on its efforts to create fair and appropriate incentive compensation plans and why it believes the plans in place are appropriate. XI. The Company s outside auditor will be required to disclose to the Audit Committee any non-auditing and non-tax services valued in excess of $250,000 in a single calendar year. XII. The Audit Committee Charter, Article 7, Meetings will be amended to establish that the Audit Committee has the express power to meet with the Company s auditors privately, outside the presence of any member of management, in connection with the quarterly reviews and annual audit. XIII. The Lead Independent Director Responsibilities, as set forth in the Company s Corporate Governance Guidelines, will include the amendments shown in the attached revised version of those Guidelines. Lead Independent Director Responsibilities (from Popular s 2/18/2010 Corp. Governance Guidelines 4 When the Chairman is not an independent director, a Lead Director will be elected annually by the majority of the independent members of the Board. The Lead Director shall be an independent director. The lead director shall have the following responsibilities, together with such others as the Board might specify from time to time: 4 In addition to implementing the above-indicated provisions, Popular has agreed as part of the Corporate Governance Measures required by the Settlement to amend the Company s Lead Independent Director Responsibilities, which are set forth in the Company s Corporate Governance Guidelines. The text of the Lead Independent Director Responsibilities is set forth herein, and the amendments to that text are indicated by underlined text where language has been added and strikeouts where language has been deleted. -7-

9 preside over meetings of the Board at which the Chairman is not present; preside over executive sessions of the independent directors; act as the liaison between the independent directors and the Chairman of the Board and Chief Executive Officer; call meetings of independent directors; assist the other independent directors by ensure ensuring that independent directors have adequate opportunities to meet in executive sessions and communicate to the Chief Executive Officer, as appropriate, the results of such sessions and other private discussions among outside directors; assist the Chairman and the remainder of the Board in assuring effective corporate governance in managing the affairs of the Board; serve as the contact person to facilitate communications requested by major shareholders with independent members of the Board; approve in collaboration with the CEO meeting agendas and information sent to the Board; approve in collaboration with the CEO meeting schedules to assure that there is sufficient time for discussion of all agenda items; serve temporarily as Chairman of the Board and the Board s spokesperson if the Chairman is unable to act; interview Board candidates; recommend to the Governance Committee nominees to Board Committees and sub-committees as may come to the Lead Director s attention; ensure that the Board works as a cohesive team;. make such recommendations to the Board as the Lead Director shall deem appropriate for the retention of consultants who will report to the Board; and retain consultants, with the approval of the Board, as the Lead Director and the Board deem appropriate. -8-

10 ATTORNEYS FEES AND EXPENSES 7. If the Settlement is approved by the Court, Lead Counsel intends to apply to the Court for an Attorneys Fees and Expense Award not exceeding $2,100,000. Popular has agreed to pay, or to cause its insurers or their successors-in-interest to pay, an Attorneys Fees and Expense Award up to that amount. Lead Counsel may apply for an incentive fee up to $10,000 in the aggregate to compensate the Garcia Plaintiff and the Díaz Plaintiff for the time and expense of serving as derivative plaintiffs. The incentive fee shall be deducted from and shall reduce any Attorneys Fees and Expense Award ordered by the Court. THE SETTLEMENT HEARING 8. The Court has scheduled a Settlement Hearing, which will be held on, 2011, at m., before the Honorable Jay A. Garcia-Gregory, of the United States District Court for the District of Puerto Rico, at the Clemente Ruíz-Nazario United States Courthouse, 150 Carlos Chardón Street, Room [ ], San Juan, Puerto Rico The purpose of the Settlement Hearing will be to determine whether the Settlement of the Garcia Action is fair, reasonable and adequate and in the best interests of Popular and its shareholders; to determine whether to enter the Garcia Order and Final Judgment approving the Settlement and dismissing the Garcia Action on the merits and with prejudice; to rule on Lead Counsel s application for an Attorneys Fees and Expense Award and any application for an incentive award; to hear and determine any objections to the proposed Settlement; and to rule on other such matters as the Court may deem appropriate. 9. The Court may adjourn the Settlement Hearing from time to time by oral announcement without further notice to anyone other than the Garcia Parties. The Court may approve the Settlement with or without modification, enter the Order and Final Judgment, order the payment of an Attorneys Fees and Expense Award and order the payment of an incentive fee without further notice. RIGHT TO APPEAR AND OBJECT 10. Any Popular shareholder may appear at the Settlement Hearing, in person or through counsel of his, her or its choice, to show cause why (a the proposed Settlement should not be approved as fair, reasonable, adequate and in the best interests of Popular and its shareholders; (b why Lead Counsel s request for an Attorneys Fees and Expense Award should not be granted; (c why an incentive fee should not be awarded; or (d why the proposed Order and Final Judgment dismissing the Garcia Action should not be entered. 11. Any objection or request to be heard at the Settlement Hearing must be in writing and received by the Court and the counsel identified in the Settlement Notice no later than, 2011, unless good cause is shown for an extension of this deadline. Such objection or request to be heard must include the following information: (a the person or entity s name, address and telephone number; (b the number of shares of Popular stock currently held, together with third-party documentary evidence, such as the most recent account statement, showing such share ownership; (c a detailed statement of the basis of the person or entity s objections to or -9-

11 comments upon the Settlement, Lead Counsel s request for an Attorneys Fees and Expense Award, the request to pay an incentive fee to the Garcia Plaintiff and the Díaz Plaintiff, or any other matters before the Court; (d any supporting documents, including all documents and writings that the person or entity wants the Court to consider; and (e a statement indicating whether the person or entity intends to appear at the Settlement Hearing. 12. Any objection or request to be heard at the Settlement Hearing must be filed with the Clerk of Court: Hon. Frances Ríos de Morán, Esq. Federico Degetau Federal Building 150 Carlos Chardón Street, Room 150 San Juan, Puerto Rico and at the same time copies of all such papers must be served on counsel for the Garcia Parties as follows: Joseph E. Neuhaus, Esq. SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York Néstor M. Méndez-Gómez, Esq. PIETRANTONI MÉNDEZ & ALVAREZ LLP Popular Center, 19th Floor 209 Muñoz Rivera Avenue San Juan, Puerto Rico Counsel for Garcia Defendants except Outside Directors Jay B. Kasner, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York Ana Matilde Nin-Torregrosa, Esq. NIN-TORREGROSA & RODRÍGUEZ-RUIZ Citibank Tower, Suite Ponce de León Avenue San Juan, Puerto Rico Counsel for Outside Directors Joseph P. Guglielmo, Esq. SCOTT + SCOTT LLP 500 Fifth Avenue, 40th Floor -10-

12 New York, New York Lead Counsel for Plaintiff Garcia Luis E. Miñana, Esq. LUIS E. MIÑANA & ASOC. ABOGADOS- NOTARIOS LUIS E. MIÑANA 122 Ave. Dómenech Altos San Juan, Puerto Rico Liaison Counsel for Plaintiff Garcia 13. Unless the Court otherwise directs, no person or entity will be entitled to object to or otherwise be heard with respect to the matters before the Court, except by filing and serving written objections as described above. 14. Any person or entity that fails to object in the manner set forth above will be deemed to have waived his, her or its right to object to (including the right to appeal or otherwise be heard concerning the Settlement, the Attorneys Fees and Expense Award and the request to pay an incentive fee, and shall forever be barred from raising such objection or request in this or any other action or proceeding. CERTAIN DEFINITIONS 15. As used herein, the following terms have the meanings specified below: (a Defendants means Richard L. Carrión; David H. Chafey; Jorge A. Junquera; Roberto R. Herencia; Manuel Morales; Francisco M. Rexach, Jr.; Juan J. Bermúdez; María L. Ferré; William J. Teuber, Jr.; José R. Vizcarrondo; Michael J. Masin; Frederic V. Salerno; and nominal defendant Popular, Inc. (b Derivative Claims means all of the claims asserted or encompassed in the Complaints. (c Complaint or Complaints means any and all of the following: the original complaint filed in the Garcia Action on June 5, 2009, the amended complaint filed in the Garcia Action on November 20, 2009 and the complaint filed in the Díaz Action on September 9, (d Díaz Defendants means Richard L. Carrión; Manuel Morales; Francisco M. Rexach, Jr.; Juan J. Bermúdez; María L. Ferré; William J. Teuber, Jr.; José R. Vizcarrondo; Michael J. Masin; Frederic V. Salerno; and nominal defendant Popular, Inc. (e Effective Date means the first date by which all of the events and conditions specified in 5.1 of the Stipulation have been met and have occurred. -11-

13 (f Final means, with respect to any judicial ruling or order issued in the Garcia Action, including the Order and Final Judgment, that the period for any appeals, petitions, motions for reconsideration, rehearing or certiorari or any other proceedings for review ( Review Proceeding has expired without initiation of a Review Proceeding, or, if a Review Proceeding has been timely initiated, that there has occurred a full and final disposition of any such Review Proceeding without a reversal or any material modification to the Garcia Order and Final Judgment, including the exhaustion of proceedings in any remand and/or subsequent appeal after remand. Notwithstanding any other provision hereof, any proceeding, order, or any appeal pertaining solely to the Attorneys Fees and Expense Award or the request to pay an incentive fee shall not in any way delay or preclude the Order and Final Judgment from becoming Final. (g Garcia Defendants means Richard L. Carrión; David H. Chafey; Jorge A. Junquera; Roberto R. Herencia; Manuel Morales; Francisco M. Rexach, Jr.; Juan J. Bermúdez; María L. Ferré; William J. Teuber, Jr.; José R. Vizcarrondo; Michael J. Masin; Frederic V. Salerno; and nominal defendant Popular, Inc. (h Released Claim or Released Claims means any and all claims, rights demands, suits, matters, issues and causes of action of every nature and description, whether arising under federal, state, common or foreign law, that Plaintiffs on behalf of themselves or derivatively on behalf of nominal defendant Popular: (a asserted in the Derivative Actions; or (b could have asserted or could assert, in any forum, arising out of or relating in any way to the allegations, transactions, facts, matters, occurrences, representations or omissions involved, set forth, or referred to in the Complaints, including Unknown Claims. Notwithstanding anything herein to the contrary, Released Claim and Released Claims do not include the claims asserted in In re Popular ERISA Litigation, No. 09-cv ADC (D.P.R.; Hoff v. Popular, Inc., et al., No GAG-BJM (D.P.R.; or Montilla-Rojo, et al. v. Popular, Inc., et al., No. 11-cv-1050-JAG (D.P.R., against any of the Defendants as of the execution date of the Stipulation. (i Released Parties means Defendants and their respective predecessors, successors, parents, subsidiaries, related entities, affiliates, officers, contractors, consultants, advisors, accountants, attorneys, agents, insurers, reinsurers, transferees, assigns, present and former spouses, immediate family members, and all other current and former officers and directors of Popular. (j Unknown Claims means any and all claims not known or suspected to exist at the time of the release of the Released Parties that if known might have affected the Settlement with and release of the Released Parties or might have affected the decision not to object to the Stipulation. Upon the Effective Date, any and all such claims shall be deemed to have been, and by operation of the Judgment, shall be, expressly waived, including any and all provisions, rights and benefits conferred by any law of any state or territory of the United States, or any other state, sovereign or jurisdiction, or principle of common law which is similar, comparable, equivalent to, or that is contained in Cal. Civ. Code 1542, which provides: A general release does not -12-

14 extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. It is acknowledged that facts hereinafter may be discovered in addition to or different from those presently known or believed to be true with respect to the subject matter of the Released Claims. All such claims will be deemed waived upon the Effective Date and, by operation of the Garcia Order and Final Judgment and the Díaz Judgment, shall be finally and forever settled and released as to any and all Released Claims, without regard to the subsequent discovery or existence of such different or additional facts. Plaintiffs, nominal defendant Popular, and all Popular shareholders shall be deemed by operation of the Garcia Order and Final Judgment and the Díaz Judgment to have acknowledged that the foregoing waiver was separately bargained for and is a key element of the Settlement. INTERIM STAY AND INJUNCTIONS 16. Pending the Settlement Hearing and Final Approval of the Settlement, all proceedings in the Garcia Action, other than proceedings necessary to carry out or enforce the terms and conditions of the Stipulation, are stayed. 17. Pending Final determination of whether the Settlement should be approved, neither the Garcia Plaintiff nor any Popular shareholder shall commence, maintain or prosecute any action or proceeding asserting any of the Released Claims against the Released Parties as these terms are defined herein. SCOPE OF THE SETTLEMENT NOTICE 18. This Settlement Notice is a summary description of the Garcia Action, the Complaints, the terms of the Settlement and the Settlement Hearing. For a more detailed statement of the matters involved in the Garcia Action and the complete terms and conditions of the Settlement, shareholders are directed to www. popular.com/settlement-notice, or to or shareholders without access to the Internet can: (a review the Stipulation filed with the Court, which may be inspected during business hours, at the office of the Clerk of Court, Federico Degetau Federal Building, 150 Carlos Chardón Street, Room 150, San Juan, Puerto Rico or (b obtain a copy of the Stipulation by contacting: Enrique Martel Investor Relations Officer Popular, Inc.209 Muñoz Rivera Avenue P.O. Box San Juan, Puerto Rico Tel: ( or (

15 Other inquiries may be made to Lead Counsel for the Garcia Plaintiff: Joseph P. Guglielmo, Esq. SCOTT + SCOTT LLP 500 Fifth Avenue, 40th Floor New York, New York Tel: ( DO NOT CONTACT THE COURT REGARDING THIS NOTICE. DATED:,