UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

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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 F TO THE STIPULATION AND AGREEMENT OF SETTLEMENT: PROPOSED DÍAZ JUDGMENT

2 COMMONWEALTH OF PUERTO RICO COURT OF FIRST INSTANCE SAN JUAN SUPERIOR PART MANUEL DÍAZ, Plaintiff, v. RICHARD L. CARRIÓN; JUAN J. BERMÚDEZ; FRANCISCO M. REXACH, JR.; MICHAEL J. MASIN; MANUEL MORALES, JR.; JOSÉ R. VIZCARRONDO; MARÍA LUISA FERRÉ; FREDERIC V. SALERNO; WILLIAM J. TEUBER, JR., CIVIL NO. K AC (603 RE: DERIVATIVE ACTION Defendants, and POPULAR, INC., Nominal Defendant. JUDGMENT I. On September 9, 2009, Mr. Manuel Díaz (hereinafter, Díaz or Defendant filed the captioned Shareholders Derivative complaint (hereinafter, the Complaint against Richard L. Carrión, Juan J. Bermúdez, Francisco M. Rexach, Jr., Michael J. Masin, Manuel Morales, Jr., José R. Vizcarrondo, María Luisa Ferré, Frederic V. Salerno and William J. Teuber, Jr. The

3 Complaint also included Popular, Inc. (hereinafter, Popular as nominal defendant. As alleged in the Complaint, this action concerns a derivative action filed by shareholders of Popular, for the benefit of said entity, against certain officers and directors. The Complaint asserts five causes of action allegedly for: (1 violations of fiduciary duties; (2 abuse of control; (3 gross mismanagement; (4 waste of corporate assets; and (5 unjust enrichment. Popular and Richard L. Carrión (hereinafter, Carrión were served with process including a copy of the Complaint and summons in the captioned case on September 9, On October 5, 2009, the defendants served with summons in the action, to wit, Popular and Carrión, filed a Notice of Removal to the Federal District Court for the District of Puerto Rico (hereinafter, Federal District Court. 2 As a result, on 1 The record does not show that the remaining defendants named in this action have been served with process, with the exception of co-defendant María Luisa Ferré, who was served while this case was before the Federal District Court, after it was removed by Popular and Carrión. However, individual codefendants Juan J. Bermúdez, Francisco M. Rexach, Jr., Michael J. Masin, Manuel Morales, Jr., José R. Vizcarrondo, Frederic V. Salerno and William J. Teuber, Jr., have appeared before this Court and submitted to its jurisdiction for the sole purposes of seeking approval of the settlement through the Request for Judgment to be Entered Approving Settlement Agreement. 2 In their Notice of Removal, Popular and Carrión averred that the claims stated in the instant case are virtually identical to those asserted in two actions for securities violations and another derivative action (described herein below pending before the Federal District Court, which were consolidated for pre-trial matters because they contained common issues of facts and/or of law. Thus, Popular and Carrión argued that this action should 2

4 November 4, 2009, this Court entered judgment, which was notified on November 12, 2009, closing the case for statistical purposes, but preserving our jurisdiction in the event that the same was remanded. Subsequently, the case was remanded to this Court and as a result, on December 14, 2010, this Court ordered that the case be reopened to continue with the proceedings. Thereafter, on January 3, 2011, the parties informed this Court that prior to the December 14, 2010 order, they had signed a stipulation for a temporary stay of the proceedings in this case based on a potential settlement of the action by virtue of a mediation process scheduled to be held in late January On April 19, 2011, the parties filed a Joint Informative Motion Regarding Settlement Agreement and Requesting the Cancellation of Status Conference. In said motion, the parties informed the Court that they had reached an agreement in principle that would dispose of the entirety of the controversies in the instant case. Subsequently, the parties advised that the settlement agreement was carried out in compliance with the procedural requirements applicable to settlement agreements in derivative actions. The parties also advised that the settlement agreement be removed to the Federal District Court to be subsequently consolidated with the derivative action pending before said forum. 3

5 reached by the parties would be handled together with the settlement agreement in the derivative action filed prior to the filing of the captioned case by another shareholder of Popular, namely, Mr. Rubén García before the Federal District Court against the same defendants in this action, among others. Said action is styled: Rubén García v. Richard L. Carrión et al., Civil No (JAG (hereinafter, the Federal Derivative Action. 3 As stated by the parties, in order to ensure the efficiency of the proceedings before this Court, the matters relevant to the settlement agreement were handled jointly in both actions, since in both cases said agreement will operate for the benefit of Popular. Additionally, both actions substantially involve the same parties and the same controversies. In fact, for that reason the settlement agreement was also negotiated jointly with the active participation of the plaintiffs, namely, Rubén García and Manuel Díaz. On, 2011, the parties filed with this Court a Request for Judgment Approving Settlement Agreement informing the Court that after complying with the applicable procedures with respect to settlement agreements in derivative actions such as the instant case, the Federal District Court determined that said agreement is fair, 3 Said action is virtually identical to the instant action. 4

6 reasonable and adequate and thus, it approved the same and entered Judgment accordingly. The parties provided this Court with a copy of the settlement agreement, of the orders issued by the Federal District Court approving the same, of the Judgment entered and of other documents demonstrating the approval process before the Federal District Court for the approval of the referred settlement agreement. The parties have requested this Court to enter judgment approving the settlement agreement and dismissing with prejudice the instant action. The Court has examined the settlement agreement submitted to this Court and to the Federal District Court by the parties in this case. It has also examined the evidence reflecting that shareholders have been notified about the same and showing that the approval processes for said agreement were conducted before the Federal District Court. We have also confirmed that the latter issued the corresponding orders approving the same and entering the corresponding Judgment in the Federal Derivative Action, which is practically identical to and requests essentially the same remedies as the captioned case on behalf of the nominal defendant, Popular. Both the plaintiff and the defendants in this case, which defendants are substantially the same as named in the Federal Derivative Action, agreed to the notice and other aspects of the process of seeking approval of 5

7 the settlement from the Federal District Court. With the benefit of the appearances by the parties and the documents in the record of this Court concerning the settlement agreement reached, we proceed to resolve. II. RULE APPLICABLE TO SETTLEMENT AGREEMENTS IN DERIVATIVE ACTIONS. In Puerto Rico the filing of a shareholder derivative action is permitted under Article of the General Corporations Act of 2009(hereinafter, the Corporations Law, 14 L.P.R.A Having regard to Rule 23.1 of the Delaware Chancery Court and the case law interpreting said rule -that as the Supreme Court of Puerto Rico has held, has a persuasive and illustrative value in Puerto Rico-- Prof. Carlos Díaz Olivo is of the opinion that a settlement or dismissal of a derivative action must be approved by the Court, even though it is not an express requirement of the Corporations Law. 4 See Carlos E. Díaz Olivo, Corporaciones 290 (2005. To that end, Prof. Díaz Olivo 4 Our Corporations Law originates, to a great extent, in the Corporations Law of Delaware. For that reason it is a consummated doctrine that interpretations given by the courts of the state of Delaware and other jurisdictions to the corresponding sections of the General Corporations Act will have illustrative and persuasive value in this jurisdiction. D.A.C.O. v. Alturas Fl. Dev. Corp. y otro, 132 DPR 905, (1993 (citing Peña Clos v. Cartagena Ortiz, 114 DPR 576, 588 (1983; Hernández Agosto v. López Nieves, 114 DPR 601, 607 (1983; Pueblo v. Zavala, 78 DPR 484, 488 (1955; Corretjer v. Tribl. de Distrito, 72 DPR 754, 760 (

8 opines, it is required that a notification be issued to shareholders containing an explanation of the settlement agreement and of the correlative dismissal of the action. See id. He also opines that the Court, in turn, must examine whether the settlement agreement is fair, reasonable and adequate. See id.; see also In re Intel Corp. Derivative Litigation, Civil Act. No JJF, 2010 WL , * 1 (D. Del. Jul. 22, 2010 citing Bell Atlantic Corp. v. Bolger, 2 F.3d 1310, 1317 (3d Cir.1993 ( To grant its approval, the Court must find that the settlement is fair, adequate, reasonable and proper, and in the best interests of the class and the shareholders. ; Fischer & Porter Co. by Lepow Equities Corp. v. Tolson, 1993 WL , * 4 (E.D. Pa. Aug. 18, 1993 (Not reported( Prior to approving the settlement of a derivative action, the court must be satisfied that the compromise fairly and adequately serves the interests of the corporation on whose behalf the derivative action was instituted. quoting Mathes v. Roberts, 85 F.R.D. 710, 713 (S.D.N.Y.1980 (quoting Republic Nat'l Life Ins. Co.v. Beasley, 73 F.R.D. 658, 667 (S.D.N.Y The principal factor to be considered by the Court in issuing its decision with regard to the settlement agreement is the benefit it will represent for the corporation, which is the real party in interest in the derivative action litigation. See 7

9 Shlensky v. Dorsey, 574 F.2d 131, 147 (3d Cir (In making th[e] determination [to grant its approval with respect to a settlement agreement], the principal factor to be considered is the extent of the benefit to be derived from the proposed settlement by the corporation, the real party in interest. (Citations omitted. III. FACTUAL AND LEGAL CONCLUSIONS In order to prevent unnecessary duplicative efforts, as well as the poor use of judicial resources, on June, 2011, the parties in this case and their attorneys submitted to the consideration of the Federal District Court in the Federal Derivative Action the settlement agreement reached by the parties, which as previously indicated, comprises both the captioned action and the Federal Derivative Action, due to their substantially similar nature. In compliance with the legal requirements previously discussed, 5 on, 2011, the parties gave notice to Popular shareholders of the terms and consequences of the settlement agreement. Among other matters, in said notification the parties expressly advised that as a consequence of the agreement, once 5 In addition to those applicable to the Federal Derivative Action pursuant to Rule 23.1 of Federal Civil Procedure. 8

10 the same was approved by the Federal District Court and by this Court, the parties would voluntarily dismiss with prejudice both the Federal Derivative Action as well as the captioned case. Additionally, they informed the shareholders of their rights with regard to the agreement, as well as the details of the same and the benefit it would entail for Popular, which is the principal reason for the filing of any shareholder derivative action. Upon completion of the applicable proceedings, the Federal District Court issued its determination approving the settlement agreement presented by the parties. Said Court concluded that the agreement was fair, reasonable and adequate. To that end, the Federal District Court noted, among other things, that the settlement was the result of arm s length negotiations between experienced counsel; that the settlement notice was reasonable and constituted the best notice practicable under the circumstances of the proceedings and the matters set forth therein, to all persons entitled to such notice, and that the notice satisfied due process and applicable law. Upon review of the documents filed by the parties and the determination issued by the Federal District Court, this Court accepts the determination issued by the Federal District Court in all its aspects since we coincide with said Court to the 9

11 effect that the settlement agreement reached by the parties in the Federal Derivative Action and in this litigation is fair, reasonable and adequate in light of the particular circumstances of the instant case. In particular, the agreement reflects that Popular has adopted various measures concerning its governance that will be conducted for the benefit of Popular and that will result, in turn, in benefit for shareholders of said entity. Additionally, the fact that the parties have been able to reach said agreement resolving this case without incurring in additional expenses is, also, a critical factor that supports favorably considering the agreement. For that reason, this Court approves the settlement agreement reached by the parties in the captioned case in all its aspects. IV. JUDGMENT Based on the foregoing, we enter judgment determining that the settlement agreement filed by the parties is fair, reasonable and adequate and thus, it is approved in all its aspects and with all the legal effects it will entail, as approved by the Federal District Court. As a result, the instant action is dismissed with prejudice pursuant to the terms and conditions provided in the settlement agreement submitted by 10

12 the parties. RECORD AND NOTIFY THE JUDGMENT. In San Juan, Puerto Rico, this day of, GLORIA PÉREZ MAURY SUPERIOR JUDGE 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

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-01507-JAG-BJM Plaintiff,