TECHNOLOGY AGREEMENT
Exhibit 99.4
EXECUTION VERSION
This TECHNOLOGY AGREEMENT (this “Agreement”) is made and entered into as of September
30, 2010 (the “Effective Date”), by and between Popular, Inc., a Puerto Rico corporation
(“Popular”), and EVERTEC, Inc., a Puerto Rico corporation (together with its subsidiaries,
“EVERTEC”) (each a “Party” and, collectively, the “Parties”).
WHEREAS, Popular, AP Carib Holdings Ltd (“Apollo”), Carib Acquisition, Inc., and
EVERTEC have entered into an Agreement and Plan of Merger, dated as of June 30, 2010, as amended
(the “Merger Agreement”);
WHEREAS, simultaneously with the closing of the transactions contemplated by the Merger
Agreement (the “Closing”), Popular, Banco Popular de Puerto Rico (“BPPR”), and
EVERTEC are entering into an Amended and Restated Master Service Agreement, made as of the date
hereof (the “MSA”), under which EVERTEC, among other things, uses its proprietary
technology to provide certain services to Popular;
WHEREAS, the availability of such services and technology is critical to Popular and its
Affiliates in the conduct and continuity of their businesses and, therefore, Popular desires access
to the proprietary technology in the event of certain circumstances as specifically described
herein;
WHEREAS, in order to provide for such access, Popular and EVERTEC, each agreed in the Merger
Agreement to deliver, at Closing, a Technology Escrow Agreement duly executed by Popular, EVERTEC
and the Technology Escrow Agent reflecting and consistent with the Technology Escrow Agreement Term
Sheet attached to the Merger Agreement as Exhibit 1.1(a)(H); and
WHEREAS, in order to effect the intent and purposes of the Merger Agreement, the Parties
desire to enter into this Technology Agreement, as supplemented by the Three-Party Master
Beneficiary Escrow Service Agreement to be entered into by and among Popular, EVERTEC, and Iron
Mountain Intellectual Property Management, Inc. (“Iron Mountain”) simultaneously with this
Agreement (the “MBESA”), substantially in the form of the agreement attached hereto as
Exhibit A;
NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants set
forth herein, and for other good and valuable consideration, Popular and EVERTEC hereby agree as
follows:
ARTICLE I
DEFINITIONS; INTERPRETATION AND RULES OF CONSTRUCTION
Section 1.1 Definitions. The following capitalized terms used in this Agreement shall
have the meanings set forth below.
“AAA” means the American Arbitration Association.
“Affiliate” means, with respect to any Person, any other Person, directly or
indirectly, through one or more intermediaries, Controlling, Controlled by, or under common Control
with, such Person. Notwithstanding the foregoing, (i) with respect to Apollo, the term “Affiliate”
shall (x) include any investment fund with respect to which Apollo Global Management LLC or its
Controlled Affiliates (including its and their respective successors) are the sole or, if not sole,
primary investment managers and, subject to clause (y) below, each of their Subsidiaries and (y)
not include portfolio companies of Apollo Global Management LLC or its Controlled Affiliates and,
(ii) with respect to Popular (to the extent that at the time of determination it is engaged in a
private equity or similar business), the term “Affiliate” shall not include portfolio companies of
Popular or its Controlled Affiliates.
“Arbitration Procedures” has the meaning set forth in Section 9.1(a).
“Agreement” has the meaning set forth in the Preamble.
“Apollo” has the meaning set forth in the Recitals.
“Asset Acquirer” has the meaning set forth in Section 10.6(c).
“Assignee Sub” has the meaning set forth in Section 10.6(b).
“Bankruptcy Code” has the meaning set forth in Section 10.14.
“Bankruptcy Event” shall have the meaning set forth in Section 10.14.
“beneficially owned”, “beneficial ownership” and similar phrases have the same
meanings as such terms have under Rule 13d-3 (or any successor rule then in effect) under the
Exchange Act, except that in calculating the beneficial ownership of any Person, such Person shall
be deemed to have beneficial ownership of all securities that such Person has the right to acquire,
whether such right is currently exercisable or is exercisable upon the occurrence of a subsequent
event. Notwithstanding the foregoing, no Person (the “Initial Person”) shall be deemed to
beneficially own any securities beneficially owned by another Person who is not an Affiliate of
such Initial Person (the “Other Person”) (disregarding solely for the purposes of
determining securities beneficially owned by such Other Person, (i) application of this sentence to
any securities that have been Transferred (other than in the form of a pledge, hypothecation or
similar grant of a security interest only and which shall not involve the grant of a proxy or other
right with respect to the voting of such securities) to such Other Person in compliance with the
Stockholder Agreement or other applicable Group Agreement and (ii) any Group Securities with
respect to such Other Person), including without limitation, another Holder that is not an
Affiliate of such Initial Person.
“BPPR” has the meaning set forth in the Recitals.
“Business Day” means any day other than a Saturday, a Sunday or a day on which banks
in New York, New York or San ▇▇▇▇, Puerto Rico are authorized or obligated by Law or executive
order to close.
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“Change of Control” means, with respect to a Person, the acquisition, by a
non-Affiliate of such Person, of (i) more than fifty percent (50%) of the voting power of such
Person or (ii) the legal power to designate a majority of the board of directors (or other persons
performing similar functions) of such Person.
“Chosen Courts” has the meaning set forth in Section 10.9.
“Clawback Right” has the meaning set forth in Section 5.1.
“Common Shares” means the common stock of EVERTEC, par value $1.00 per share (or the
common stock of any successor or other entity holding all or substantially all the assets of
EVERTEC and its Subsidiaries).
“Commonwealth” means the Commonwealth of Puerto Rico.
“Control Acquirer” has the meaning set forth in Section 10.7(a).
“Confidential Information” has the meaning set forth in the MSA.
“Control,” and the correlative terms “Controlling” and “Controlled,” means the
possession, direct or indirect, of the power to direct or cause the direction of the management
policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Closing” shall have the meaning set forth in the Recitals.
“Cured Service” has the meaning set forth in Section 5.1.
“Deposit Account” has the meaning set forth in the MBESA.
“Deposit Bundle” has the meaning set forth in Section 2.1.
“Deposit Materials” means the software (including all source and object code forms)
and related documentation, libraries, files, scripts, databases, specifications, tools, database
schema, designs, and other tangible embodiments of technology and documentation therefor, the
intellectual property rights of which are owned by EVERTEC, its successors or assigns and used
either (i) by Popular or any of its Affiliates in any of their respective businesses; or (ii) by or
on behalf of EVERTEC in providing services under the MSA to or on behalf of Popular (or any of its
Affiliates that receives services under the MSA), excluding the software and other technology used
only in the Merchant Acquiring Business, the TicketPop Business, and the ATH Network Business (as
“Merchant Acquiring Business”, “TicketPop Business” and “ATH Network
Business” are defined in the Merger Agreement). For the avoidance of doubt, Deposit Materials
do not include any materials to the extent that the intellectual property rights therein are
licensed by EVERTEC from a third party.
“Drag-Along Transaction” has the meaning set forth in Section 4(d)(i) of the
Stockholder Agreement.
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“Dragged Asset Sale” has the meaning set forth in Section 4(d)(vii) of the Stockholder
Agreement.
“Encumbrances” means any direct or indirect encumbrances, lien, pledge, security
interest, claim, charges, option, right of first refusal or offer, mortgage, deed of trust,
easement, or any other restriction or third-party right, including restrictions on the right to
vote equity interests.
“Elected License” has the meaning set forth in Section 4.3.
“Excess Deposit Materials” has the meaning set forth in Section 4.1.
“EVERTEC” has the meaning set forth in the Preamble.
“EVERTEC Change of Control” means, with respect to EVERTEC, any:
(i) merger, consolidation or other business combination of EVERTEC (or any Subsidiary or
Subsidiaries that alone or together represent all or substantially all of EVERTEC’s consolidated
business at that time) or any successor or other entity holding all or substantially all the assets
of EVERTEC and its Subsidiaries that results in the stockholders of EVERTEC (or such Subsidiary or
Subsidiaries) or any successor or other entity holding all or substantially all the assets of
EVERTEC and its Subsidiaries or the surviving entity thereof, as applicable, immediately before the
consummation of such transaction or a series of related transactions, holding, directly or
indirectly, less than fifty percent (50%) of the voting power of EVERTEC (or such Subsidiary or
Subsidiaries) or any such successor, other entity or surviving entity, as applicable, immediately
following the consummation of such transaction or series of related transactions; provided
that this clause (i) shall not be deemed applicable to any merger, consolidation or other business
combination if, as a result of any such merger, consolidation or other business combination, no
Person or Group of Persons that had not had “control” of EVERTEC immediately prior to such
transaction, as such term is defined under the Bank Holding Company Act of 1956, shall have
obtained such “control”;
(ii) Transfer (other than in the form of a pledge, hypothecation or similar grant of a
security interest only and which shall not involve the grant of a proxy or other right with respect
to the voting of such equity), in one or a series of related transactions, of equity representing
fifty percent (50%) or more of the voting power of EVERTEC (or any Subsidiary or Subsidiaries that
alone or together represent all or substantially all of EVERTEC’s consolidated business at that
time) or any successor or other entity holding all or substantially all the assets of EVERTEC and
its Subsidiaries to a Person or Group of Persons (other than an Transfer of such equity to Apollo
Global Management LLC, Popular, any Permitted Ultimate Parent, or their respective Controlled
Affiliates);
(iii) transaction in which a majority of the board of directors or equivalent governing body
of EVERTEC (or any successor or other entity holding all or substantially all the assets of EVERTEC
and its Subsidiaries) immediately following or as a proximate cause of such transaction is
comprised of persons who were not members of the board of directors or equivalent governing body of
EVERTEC (or such successor or other entity) immediately prior to
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such transaction (or are not nominated by Apollo Global Management LLC, Popular, any Permitted
Ultimate Parent or their respective Controlled Affiliates) except, (X) resulting from the
compliance, at the time of an initial public offering of either Holdco or EVERTEC (or any successor
or other entity holding all or substantially all the assets of EVERTEC and its Subsidiaries), with
the listing requirements, listed company manual or similar rules or regulations of the securities
exchange on which Holdco’s or EVERTEC’s (or such successor’s or other entity’s), as the case may
be, equity securities will be listed pursuant to such initial public offering, (Y) if a majority of
such board of directors is not “independent” under the rules of the applicable securities exchange
on the date following such initial public offering upon which Holdco or EVERTEC (or any successor
or other entity holding all or substantially all the assets of EVERTEC and its Subsidiaries), as
the case may be, first ceases to be a “controlled company” (or similar status) under the rules and
regulations of such exchange, resulting from compliance with the rules and regulations of such
exchange that first apply upon Holdco or EVERTEC (or such successor’s or other entity’s), as the
case may be, ceasing to be a “controlled company” (or similar status), or (Z) the loss of directors
of EVERTEC pursuant to Section 2 of the Stockholder Agreement (as in effect on the date hereof or
as may be amended with the approval of Popular and BPPR) that does not result in another Person or
Group of Persons having the right or ability to appoint a majority of the board of directors or
equivalent governing body of Holdco or EVERTEC (or any successor or other entity holding all or
substantially all the assets of EVERTEC and its Subsidiaries) as a result of such transaction;
provided that, for the avoidance of doubt, this clause (Z) shall only apply to the
resignation and initial replacement of such directors and not to any subsequent replacement of such
directors (whether in connection with another transaction or otherwise); or
(iv) sale or other disposition in one or a series of related transactions of all or
substantially all of the assets of EVERTEC and its Subsidiaries (or any successor or other entity
holding all or substantially all the assets of EVERTEC and its Subsidiaries) to a Person who is not
an Affiliate of EVERTEC at such time.
“Exchange Act” means the Securities Exchange Act of 1934.
“Future Deposits” had the meaning set forth in Section 2.2.
“Government Entity” means the government or any agency thereof, of any nation, state,
commonwealth (including the Commonwealth of Puerto Rico), city, municipality or political
subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to the government that have regulatory, supervisory,
and/or examination authority with respect to BPPR and/or of EVERTEC, any quasi Government Entity or
arbitral body, any SRO and any applicable stock exchange.
“Group Agreement” means any agreement governing the acquisition, holding, voting or
disposition of securities of a Person; provided that, so long as Apollo or a subsequent
Permitted Controlling Holder is an Affiliate of such Person, such Person is a party to such
agreement.
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“Group of Persons” means a group of Persons that would constitute a “group” as
determined pursuant to Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder.
“Group Securities” means any securities beneficially owned by a Person solely as a
result of the Stockholder Agreement or any other Group Agreement and, for the avoidance of doubt,
which securities have not been Transferred to such Person or any of its Controlled Affiliates.
“Holdco” means Carib Holdings, Inc., a corporation organized under the laws of the
Commonwealth of Puerto Rico.
“Holdco Common Shares” means the common stock of Holdco, par value $0.01 per share.
“Holders” means the holders of Holdco Common Shares who are parties to the Stockholder
Agreement as set forth in Schedule I thereto, as the same may be amended or supplemented from time
to time.
“Improper Release” has the meaning set forth in Section 3.3.
“Indebtedness” means, with respect to any Person, (a) all indebtedness of such Person,
whether or not contingent, for borrowed money, and (b) all obligations of such Person evidenced by
notes, bonds, debentures or other similar debt instruments.
“Initial Deposit” has the meaning set forth in Section 2.1.
“Initial Person” has the meaning set forth in the definition of “beneficially owned.”
“Jurisdiction” has the meaning set forth in Section 10.6(b).
“IP Purchase and Sale Agreement” means that certain IP Purchase and Sale Agreement,
dated as of the date hereof, between EVERTEC and Popular.
“Law” means any federal, national, supranational, state, provincial, Commonwealth,
local or foreign or similar law, statute, ordinance, rule, regulation, code, Order, writ, judgment,
injunction, directive, guideline or decree enacted, issued, promulgated, enforced or entered by a
Government Entity or Self-Regulatory Organization (including, for the sake of clarity, any policy
statement or interpretation that has the force of law with respect to any of the foregoing, and
including common law).
“Legal Holiday” means Saturday, Sunday or any legal holiday in the Commonwealth of
Puerto Rico that is observed by EVERTEC.
“Losses” has the meaning set forth in Section 8.1.
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“Master Services Agreement” means the Amended and Restated Master Services Agreement,
dated as of the date hereof, among Popular, BPPR and EVERTEC, as it may be amended, restated or
supplemented from time to time.
“Material Breach” has the meaning set forth in the MSA.
“MBESA” has the meaning set forth in the Recitals.
“Merger Agreement” has the meaning set forth in the Recitals.
“MSA” has the meaning set forth in the Recitals.
“Non-Controlled Public Entity” means a Person which has equity securities listed on
national stock exchange and which Person’s Affiliates do not beneficially own securities
representing the majority of the voting power to elect the members of the board of directors or
other governing body of such Person.
“Order” means any order, injunction, judgment, decree, writ or other enforcement
action of a Government Entity.
“Other Person” has the meaning set forth in the definition of “beneficially owned”.
“Party” and “Parties” have the meaning set forth in the Preamble.
“Permitted Assignment” means a Permitted Subsidiary Assignment or a Permitted
Third-Party Assignment.
“Permitted Controlling Holder” means a Person that (i) beneficially owns equity
securities representing a majority of the voting power to elect the directors of EVERTEC or (ii)
any successor or any other entity holding all or substantially all of the assets of EVERTEC and its
Subsidiaries in a transaction or series of transactions, in each case, without contravening Section
10.6 or without Popular validly exercising its termination right pursuant to Section 10.7
provided that such Person shall be a “Permitted Controlling Holder” only with respect to
the applicable entity that issues such securities.
“Permitted Subsidiary Assignment” means an assignment by EVERTEC of any of its rights,
duties or obligations under this Agreement to an Assignee Sub in compliance with the provisions of
Section 10.6.
“Permitted Third-Party Assignment” means an assignment by EVERTEC of all its rights,
duties and obligations under this Agreement to an Asset Acquirer in compliance with the provisions
of Section 10.6.
“Permitted Ultimate Parent” means with respect to a Permitted Controlling Holder, its
Ultimate Parent Entity.
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“Person” shall be construed broadly and shall include, without limitation, an
individual, a partnership, a limited liability company, a corporation, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization and a Government Entity or
any department, agency or political subdivision thereof.
“Popular” has the meaning set forth in the Preamble.
“Release Event” has the meaning set forth in Section 3.1.
“Requested Improvements” has the meaning set forth in Section 3.1(e).
“Rights” has the meaning set forth in Section 4.1.
“Self-Regulatory Organization” means the Financial Industry Regulatory Authority, the
American Stock Exchange, the National Futures Association, the Chicago Board of Trade, the New York
Stock Exchange, any national securities exchange (as defined in the Securities Exchange Act of
1934, as amended), any other securities exchange, futures exchange, contract market, any other
exchange or corporation or similar self-regulatory body or organization.
“Service Failure” has the meaning set forth in Section 3.1(a).
“Service Fees” has the meaning set forth in the MBESA.
“Solvent” with regard to any Person, means that (i) the sum of the assets of such
Person, both at a fair valuation and at a present fair salable value, exceeds its liabilities,
including contingent, subordinated, unmatured, unliquidated and disputed liabilities; (ii) such
Person has sufficient capital with which to conduct its business; and (iii) such Person has not
incurred debts beyond its ability to pay such debts as they mature. For purposes of this
definition, “debt” means any liability on a claim, and “claim” means (x) a right to payment,
whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) a right to
an equitable remedy for breach of performance to the extent such breach gives rise to a payment,
whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or unsecured. With respect to any such
contingent liabilities, such liabilities shall be computed at the amount which, in light of all the
facts and circumstances existing at the time, represents the amount which can reasonably be
expected to become an actual or matured liability.
“Specified Materials” has the meaning set forth in Section 4.3.
“Specified Term” has the meaning set forth in Section 4.3.
“SPV Affiliate” means with respect to any Person, any Affiliate of such Person, whose
direct or indirect interest in the Common Shares constitutes more than thirty percent (30%) (by
value) of the equity securities portfolio of such Affiliate.
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“Stockholder Agreement” means the Stockholder Agreement among Carib Holdings, Inc. and
the holders party thereto dated September 30, 2010.
“Subsidiary” means, with respect to any Person, any corporation, association,
partnership, limited liability company or other business entity of which fifty percent (50%) or
more of the total voting power or equity interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election of directors,
managers, representatives or trustees thereof is at the time owned or Controlled, directly or
indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person, or (c)
one or more Subsidiaries of such Person.
“Term” has the meaning set forth in Section 7.1.
“Transfer” means any direct or indirect sale, assignment, transfer, conveyance, gift,
bequest by will or under intestacy laws, pledge, hypothecation or other Encumbrance, or any other
disposition, of the stated security (or any interest therein or right thereto, including the
issuance of any total return swap or other derivative whose economic value is primarily based upon
the value of the stated security) or of all or part of the voting power (other than the granting of
a revocable proxy) associated with the stated security (or any interest therein) whatsoever, or any
other transfer of beneficial ownership of the stated security, with or without consideration and
whether voluntarily or involuntarily (including by operation of law). Notwithstanding anything to
the contrary set forth in this Agreement, (i) each of (x) a Transfer of equity interests of Popular
and (y) a Change of Control of Popular shall be deemed not to constitute a Transfer of any equity
interest beneficially owned by Popular; (ii) each of (x) a Transfer of equity interests of Apollo
Global Management LLC or any of its Controlled Affiliates that is not an SPV Affiliate, and (y) a
Change of Control of Apollo Global Management LLC or any of its Controlled Affiliates that is not
an SPV Affiliate shall be deemed not to constitute a Transfer of any equity interest beneficially
owned by Apollo or such Affiliate, as applicable, and (iii) each of (x) a Transfer of equity
interests of any Permitted Ultimate Parent or any of its Controlled Affiliates that is not an SPV
Affiliate, and (y) a Change of Control of any Permitted Ultimate Parent or any of its Controlled
Affiliates that is not an SPV Affiliate shall be deemed not to constitute a Transfer of any
security beneficially owned by such Permitted Ultimate Parent Entity or such Controlled Affiliate,
as applicable; provided that, for the avoidance of doubt, subject to clause (i) above, any
Change of Control of an SPV Affiliate shall be deemed to constitute a Transfer of the Common Shares
beneficially owned by such SPV Affiliate.
“Transition Period” has the meaning set forth in the MSA.
“Ultimate Parent Entity” means (i) with respect to Apollo, Apollo Global Management
LLC and its successors, (ii) with respect to Popular, Popular and its successors and (iii) with
respect to a Permitted Controlling Holder, (x) the Person which (A)(i) Controls such Permitted
Controlling Holder or (ii) if no Person Controls such Permitted Controlling Holder, the beneficial
owner of a majority of the voting power of such Permitted Controlling Holder and (B) is not itself
Controlled by any other Person that is an Ultimate Parent Entity of such Permitted Controlling
Holder or, (y) if no such Person exists, the Permitted Controlling Holder; provided that,
with respect to determining an Ultimate Parent Entity (i) the Control of any entity by a
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natural person shall be disregarded and (ii) the Control of any Non-Controlled Public Entity by any
Person shall be disregarded.
“Work Request” has the meaning set forth in the MBESA.
Section 1.2 Rules of Interpretation.
(a) Wherever the word “include,” “includes” or “including” is used in this Agreement, it shall
be deemed to be followed by the words “without limitation.”
(b) The words “hereof,” “herein” and “hereunder” and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any particular provision of
this Agreement.
(c) The terms defined in the singular have a comparable meaning when used in the plural, and
vice versa.
(d) References herein to the Preamble or the Recitals shall refer, respectively, to the
Preamble or the Recitals of this Agreement.
ARTICLE II
ESCROW DEPOSITS
Section 2.1 Initial Deposit. Within ninety (90) days after the Effective Date,
EVERTEC shall (i) identify the Deposit Materials that are applicable to each of the application
categories listed on Exhibit B or such other categories that are mutually agreed upon by
the Parties (each, a “Deposit Bundle”); and (ii) pursuant to the terms of the MBESA, shall
deliver one copy of the most recent version of the Deposit Materials applicable to each Deposit
Bundle, and all other Deposit Materials, if any, that are not applicable to any particular Deposit
Bundle, to Iron Mountain along with instructions to deposit each such Deposit Bundle into a
separate Deposit Account designated by the application categories set forth in Exhibit B
and/or any other mutually agreed upon categories (collectively, the “Initial Deposit”).
Section 2.2 Deposit Updates. Following the Initial Deposit, on a semi-annual basis
during the term of the MSA and thereafter for the term of any Transition Period, EVERTEC will
deliver to Iron Mountain pursuant to the MBESA the then-current versions of the Deposit Materials
and any new Deposit Materials (“Future Deposits”) for deposit into the applicable existing
Deposit Account(s) and/or one or more new Deposit Accounts, as applicable. All Future Deposits
will automatically be deemed part of the Deposit Materials; provided, however, that
EVERTEC will not be required to deposit any Future Deposits that are not used (i) by Popular or any
of its Affiliates in their respective businesses or (ii) by or on behalf of EVERTEC in providing
services under the MSA to or on behalf of Popular (or any of its Affiliates that receive services
under the MSA). Notwithstanding the foregoing, following any Release Event as set forth below with
respect to any one or more Deposit Bundles, EVERTEC shall deliver to the Escrow Agent a current
copy of each such Deposit Bundle for redeposit into each such applicable Deposit Account.
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ARTICLE III
ESCROW RELEASES
Section 3.1 Release Events. Popular shall have the right and option to obtain the
release of the Deposit Materials upon the occurrence of any of the following events (“Release
Events”):
(a) failure of, or failure to provide, a service (including any transition service) under the
MSA that has a material adverse impact on or significantly degrades the availability, use or
performance of such service or the relevant business of Popular or any of its Affiliates, if such
failure remains uncured seventy-two (72) hours after written notice thereof to EVERTEC
(“Service Failure”) or a Material Breach (as defined in the MSA) by EVERTEC under the MSA
that is not cured within the time period specified under the MSA (in either case, Popular shall
have the right and option to obtain the release of only those Deposit Bundles affected by the
Service Failure or Material Breach and any other Deposit Bundles that are reasonably necessary to
use and support the affected Deposit Bundles);
(b) expiration or termination of the MSA for any reason;
(c) EVERTEC is subject to a voluntarily or involuntary bankruptcy proceeding;
(d) regulatory requirement (in which case, Popular shall have the right and option to obtain
the release of only those Deposit Bundles affected by the regulatory requirement and any other
Deposit Bundles that are reasonably necessary to use and support the affected Deposit Bundles);
(e) EVERTEC declines Popular’s request for certain improvements, enhancements or other
developments (“Requested Improvements”) that EVERTEC is capable of fulfilling (in which
case, Popular shall have the right and option to obtain the release of only those Deposit Bundles
reasonably necessary to enable the development and support of the Requested Improvements, and
Popular will not use such Deposit Bundles except in connection with the development and maintenance
of the Requested Improvements); provided, however, in this case Iron Mountain shall
not be authorized to release the Deposit Materials unless Popular certifies that the following
conditions are met: (A) Popular has negotiated with a third-party vendor an arrangement to prepare
the Requested Improvements, (B) after negotiating the arrangement with a third-party vendor Popular
offers EVERTEC the right to prepare the Requested Improvements for a price that is equal to that
negotiated between Popular and the third-party vendor and upon terms and conditions substantially
equivalent to those offered by the third-party vendor (provided that the terms and
conditions that EVERTEC would need to meet would not require the delivery of the Requested
Improvements in source code form to Popular or require the transfer of the ownership of the
intellectual property rights in the Requested Improvements), and (C) EVERTEC does not
unconditionally accept such offer within ten (10) business days of its receipt thereof; and
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(f) EVERTEC notifies Popular that it is incapable for any reason of fulfilling or otherwise
does not accept Popular’s request for Requested Improvements or EVERTEC accepts Popular’s request
for Requested Improvements and fails to satisfy, in any material respect, any material terms upon
which the Parties have agreed such Requested Improvements will be provided (in which case, Popular
shall have the right and option to obtain the release of only those Deposit Bundles reasonably
necessary to enable the development and support of the Requested Improvements, and Popular will not
use such Deposit Bundles except in connection with the development and maintenance of the Requested
Improvements).
Section 3.2 Release Requests. To obtain the release of any Deposit Materials, Popular
shall submit to Iron Mountain: (i) a Work Request to release such Deposit Materials that specifies
the Deposit Account(s) to be released; and (ii) a certification that a Release Event has occurred
(and in the case of Section 3.1(e), the required certification) with respect to such Deposit
Account(s).
Section 3.3 Release Disputes. If EVERTEC does not agree that a Release Event has
occurred, it may dispute the basis for the release through the Arbitration Procedures, but in no
event shall any such dispute prevent or delay the release of any Deposit Materials. If it is
finally determined in such arbitration (after any permitted appeals) that a Release Event did not
in fact occur (an “Improper Release”), then (i) EVERTEC will resume providing the relevant
services (if and to the extent EVERTEC had ceased providing such services in accordance with the
MSA) and Popular will deliver such Deposit Materials to Iron Mountain for redeposit into the
applicable Deposit Account(s) and destroy any copies thereof still in its possession; (ii) any
Elected License with respect to such Deposit Materials would terminate; and (iii) Popular shall pay
to EVERTEC an amount equal to the greater of (A) the fees paid or payable by Popular to EVERTEC
during the preceding twelve (12) months with respect to the service(s) for which the Deposit
Materials were specified by Popular for release from escrow pursuant to an Improper Release; and
(B) Five Million Dollars (US $5,000,000). Such payment will be considered liquidated damages for
any damages that EVERTEC may have then incurred as a result of the release (other than future
damages that EVERTEC may incur as a result of any unauthorized use or disclosure of the Deposit
Materials).
ARTICLE IV
LICENSE
Section 4.1 Grant of Rights. EVERTEC hereby grants to Popular a perpetual, worldwide,
irrevocable, non-exclusive right and license (with the right to sublicense to its Affiliates and to
third-party contractors solely for the benefit of Popular and its Affiliates) to use, reproduce,
modify, create derivative works of, distribute, display and otherwise exploit the Deposit Materials
for the benefit of its business and the businesses of its Affiliates (provided that, for
clarity, the foregoing rights of distribution and public display shall apply only to object code
forms or publicly available versions of the Deposit Materials) (collectively, the
“Rights”).
Section 4.2 Limitations. Popular agrees that it shall not exercise the Rights unless
and until a Release Event occurs. Further, upon the occurrence of a Release Event, Popular may, at
its option, exercise the Rights under the applicable Elected License for the applicable Deposit
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Materials, but Popular and its Affiliates shall not exercise any Rights with respect to any
Deposit Materials for which Popular does not elect to receive an Elected License or with respect to
which the Specified Term of such Elected License has expired and was not renewed.
Section 4.3 Election of Rights. Within ten (10) days following the release of any
Deposit Materials, Popular shall send to EVERTEC written notice specifying (a) the Deposit
Materials with respect to which it elects to exercise the Rights, which may be all or any part of
the Deposit Materials released pursuant to Section 3.2 (the “Specified Materials”), and (b)
the applicable term or terms of the license for which Popular elects to exercise the Rights with
respect to such Deposit Materials, which term(s) may be perpetual, term-limited or renewable, in
each case, as specified by Popular (the “Specified Term”). In each case, the rights of
Popular and its Affiliates that are specified pursuant to this Section 4.3 are referred to herein
as the “Elected License”.
Section 4.4 End of the Specified Term. Within ninety (90) days following the
expiration of the Specified Term under any Elected License, an officer of Popular shall certify in
writing that, to the extent permitted by Law, all the Specified Materials (excluding any data or
other information contained therein that is owned by Popular, its Affiliates or any of their
respective customers) licensed under such Elected License, together with any Future Developments
based upon such Specified Materials, have been permanently deleted or destroyed (or otherwise
disposed of pursuant to EVERTEC’s reasonable instructions) and that no copies of any of the
foregoing remain in Popular’s possession or control, directly or indirectly, subject only to the
requirements of any applicable Law or Government Entity. Furthermore, Popular will transfer in
writing all Rights under the applicable Elected License back to EVERTEC, as a result of which
Popular, pursuant to Section 4.2, will be prohibited from exercising such Rights. If Popular does
not comply with the requirements set forth in this Section 4.4, Popular hereby consents to EVERTEC
being granted equitable relief, such as specific performance to compel Popular to comply with those
requirements.
Section 4.1 Excess Deposit Materials. In the event that the release of the contents
of a Deposit Account results in Popular receiving Deposit Materials that are not Specified
Materials (“Excess Deposit Materials”), Popular will deliver such Excess Deposit Materials
to Iron Mountain for redeposit into escrow and destroy any copies thereof still in its possession.
ARTICLE V
CLAWBACK RIGHT
Section 5.1 Clawback Right. If, during the term of the MSA, (i) a Release Event
occurs and Popular elects to obtain the release of Deposit Materials pursuant to the terms and
conditions of this Agreement and the MBESA, and (ii) following such release, the circumstances
giving rise to such Release Event are cured (with respect to circumstances that are capable of
cure) and the circumstances are such that EVERTEC is capable of resuming services enabled by such
Deposit Materials without there being a Release Event, then so long as EVERTEC is capable of
adequately providing the service(s) applicable to such Deposit Materials in accordance with the
terms and conditions of the MSA that gave rise to the Release Event (each, a “Cured
Service”), EVERTEC will have the right, upon reasonable prior notice and subject to the
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conditions set forth below, (A) to require that Popular return to EVERTEC or destroy such
Deposit Materials with respect to such Cured Service and all copies thereof, (B) require that any
Elected License associated with such Deposit Materials for the Cured Service would terminate, and
(C) resume providing the Cured Service to Popular under the MSA (a, b and c, collectively the
“Clawback Right”); provided, however, that if EVERTEC exercises the
Clawback Right, EVERTEC will (without limiting any right or remedy of Popular under the MSA) (1)
reimburse Popular for all of Popular’s out-of-pocket costs and expenses incurred in connection with
the Release Event and Popular’s efforts to resume the service under the MSA that gave rise to
Popular’s release request; (2) ensure a transition back to the Cured Service at EVERTEC’s cost with
minimal disruption to business continuity; and (3) promptly deliver to Iron Mountain one copy of
any such Deposit Materials for redeposit into escrow in accordance with the terms of the MBESA.
Section 5.2 Limitations. Notwithstanding Section 5.1, EVERTEC may not exercise the
Clawback Right to the extent that such exercise would result in:
(a) a violation of Law, or
(b) Popular breaching a contract that it entered into with a third party to provide Popular
with services previously provided by EVERTEC under the MSA or otherwise required after a Service
Failure or a termination or break-up fee under such a contract, and Popular has used commercially
reasonable efforts without compromising its business continuity to avoid the condition giving rise
to such breach or such termination or break-up fee provision; provided, however,
that EVERTEC may exercise the Clawback Right under this subsection (b) if Popular:
(i) does not notify EVERTEC that the exercise would result in its breach of a
third-party contract within thirty (30) days following the date that EVERTEC notifies
Popular in writing that it is exercising the Clawback Right, or
(ii) does so timely notify EVERTEC of the likelihood of a breach of contract and
EVERTEC agrees to indemnify and defend Popular with respect to liability to the third party
for a claim of breach of contract.
Section 5.3 Clawback Disputes. If the Parties do not mutually agree both: (i) that
EVERTEC is capable of adequately providing the service under the MSA that gave rise to Popular’s
release request, and (ii) upon the amount of the reimbursement to Popular pursuant to the preceding
paragraph, the Parties will submit the matter(s) to arbitration in accordance with the Arbitration
Procedures.
ARTICLE VI
FEES
Section 6.1 FMV. Upon the release of any Deposit Materials, Popular and EVERTEC will
negotiate in good faith to reach an agreement as to the fair market value (“FMV”) of the
Elected License. If after thirty (30) days following the release of Deposit Materials from escrow
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(or, if such release requires the approval of a Government Entity, ten (10) days after the
receipt of such approval), EVERTEC and Popular cannot reach a binding agreement as to the FMV for
the Elected License, the matter will be determined in accordance with the Arbitration Procedures.
In connection with the arbitration, each Party may present testimony and a report of a valuation
expert.
Section 6.2 Payment. Once FMV has been determined, Popular will pay to EVERTEC the
amount due (whether, at Popular’s election, the full amount due for a Specified Term of a perpetual
duration, or the applicable amount due for a Specified Term of limited duration). If Popular
elects a Specified Term of limited duration, then such Specified Term will automatically renew for
additional successive terms of a duration equal to the initial renewable Specified Term elected by
Popular under the Elected License, unless canceled by Popular in writing delivered to EVERTEC at
least thirty (30) days prior to the expiration of the then-current term, and Popular will pay the
applicable renewal fee upon such renewal.
Section 6.3 Failure to Pay. If Popular fails to make such payment within thirty (30)
days of the Parties entering into a binding agreement as to FMV or final determination of FMV
through arbitration (after any permitted appeals or the time for appeal has lapsed), then,
following written notice thereof and failure to cure such non-payment or post an equivalent bond
within an additional ten (10) days, EVERTEC shall have the right upon written notice to Popular (i)
to terminate the MSA, including EVERTEC’s obligation to provide transition services thereunder; and
(ii) to require that Popular (A) cease exercising its rights under the Elected License, and (B)
return or destroy all copies of the Deposit Materials in its possession or control. Furthermore,
Popular will transfer in writing all Rights under the applicable Elected License back to EVERTEC,
as a result of which Popular, pursuant to Section 4.2, will be prohibited from exercising such
Rights. If Popular does not comply with the requirements in the foregoing Subsection 6.3(ii),
Popular hereby consents to EVERTEC being granted equitable relief, such as specific performance and
injunctive relief, to compel Popular to comply with such requirements. If the Parties do not
mutually agree both: (i) that EVERTEC is capable of adequately providing the service under the MSA
that gave rise to Popular’s release request, and (ii) upon the amount of the reimbursement to
Popular pursuant to the preceding paragraph, the Parties will submit the matter(s) to arbitration
in accordance with the Arbitration Procedures.
ARTICLE VII
TERM
Section 7.1 Term. The term of this Agreement shall commence on the Effective Date and
shall continue indefinitely.
ARTICLE VIII
APPORTIONMENT OF INDEMNIFICATION OBLIGATIONS
Section 8.1 Apportionment of Liability. Popular shall be responsible for, and shall
reimburse EVERTEC for, any direct and indirect damages, liabilities, losses, costs, and expenses
(including reasonable attorney’s fees and out of pocket disbursements) (“Losses”) paid by
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EVERTEC to Iron Mountain pursuant to a claim brought by Iron Mountain against EVERTEC under
Section 7 of the MBESA (an “Iron Mountain Claim”), solely to the extent that such Iron
Mountain Claim arises from any (A) Deposit Materials that were part of the Initial Deposit and the
intellectual property rights of which were owned by EVERTEC or its subsidiaries as of the Closing;
or (B) copies of such Deposit Materials. For the avoidance of doubt, EVERTEC shall be responsible
and liable for all Losses arising from an Iron Mountain Claim to the extent such Iron Mountain
Claim arises from any (i) Deposit Materials that were part of the Initial Deposit but for which
EVERTEC or any of its subsidiaries did not own the intellectual property rights until after the
Closing; or (ii) Deposit Materials that were neither part of the Initial Deposit nor copies of
Deposit Materials that were part of the Initial Deposit.
Section 8.2 Defense of an Iron Mountain Claim. The Parties shall cooperate to
determine in good faith which party shall control and direct the defense, and exercise the other
rights of EVERTEC, pursuant to Section 7 of the MBESA. In the event that the Parties do not
promptly each make such a determination, the Party who bears (or based on the Iron Mountain Claim,
is reasonably likely to bear) the greater responsibility for the Iron Mountain Claim shall have the
primary right and power to direct and control the defense of any Iron Mountain Claim;
provided that, both Parties shall cooperate fully, and each Party shall have the right (at
its own expense and cost) to participate in such defense. Notwithstanding the foregoing, neither
Party shall enter into any settlement or agreement that would prejudice the other Party’s rights in
the Deposit Materials or under this Agreement or the MBESA, or otherwise impose any liability or
obligation on the other Party, without the prior written consent of such Party.
Section 8.3 Procedures. EVERTEC will promptly notify Popular of any Iron Mountain
Claim. Any dispute in connection with the obligations under this Article VIII shall be settled in
accordance with the Arbitration Procedures.
ARTICLE IX
DISPUTE RESOLUTION
Section 9.1 Arbitration Procedures.
(a) Any controversy or claim solely as between the Parties arising out of or relating to this
Agreement, or the breach of the same, shall be settled by binding arbitration in accordance with
the following arbitration procedures (the “Arbitration Procedures”). A matter submitted
for resolution by arbitration shall be arbitrated in accordance with the then-existing commercial
arbitration rules of the AAA by a panel of three (3) independent arbitrators, with one appointed by
each Party, and the two appointees selecting the third arbitrator in accordance with such rules.
If either Party hereto fails to select an arbitrator within ten (10) days after notice of such
failure from the other party or the AAA, then the AAA shall appoint such arbitrator. If the two
appointees are unable to agree on the third arbitrator, then the AAA shall select the same using
the foregoing qualification.
(b) The arbitration hearing shall be held in San ▇▇▇▇, Puerto Rico, at such date, time and
place as established by the arbitrators and the proceedings shall be conducted in English.
Witnesses whose native language is not English may give oral or written testimony in
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their native language, with appropriate translation into English. Documentary evidence in
Spanish may be submitted, with appropriate translation into English.
(c) The arbitrators must render their arbitral decision and award and give a written opinion
setting forth the basis of their decision, all not later than ninety (90) days after the conclusion
of the arbitration. The factual determinations of the Arbitration Panel shall be final, and an
arbitration decision may only be appealed on procedural grounds.
(g) Each Party shall take or cause to be taken all reasonable action to facilitate the conduct
of the arbitration and the rendering of the arbitral award at the earliest possible date.
(h) The costs of the arbitration shall be borne and paid equally by the Parties.
Section 9.2 Injunctive Relief. The Parties recognize and acknowledge that in the
event of a potential, anticipatory or actual breach of this Agreement, it may be necessary or
appropriate for the non-breaching Party to seek injunctive relief, if and to the extent legally
available, in order to avoid harm or further harm to the non-breaching Party. If a Party desires
injunctive relief, it may pursue the same in any court of competent jurisdiction; provided,
however, that, if granted, such injunctive relief shall apply only to prevent a breach or
further breaches and shall remain in effect only so long as the court deems necessary or
appropriate to permit resolution of the underlying disputes in accordance with this Article IX.
Neither the seeking of injunctive relief nor the granting thereof is intended or shall result in
the application of a substantive or procedural law other than the applicable governing law pursuant
to this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.1 Confidentiality. Popular’s use of Deposit Materials that comprise
Confidential Information will be subject to confidentiality obligations under the MSA, which
confidentiality obligations will survive any termination of the MSA. Furthermore, notwithstanding
anything in the MSA that would require a lesser degree of care or diligence, Popular will use its
best efforts to hold all Deposit Materials that comprise Confidential Information in strict
confidence to protect the Deposit Materials from unauthorized disclosure and use. Furthermore,
notwithstanding anything in the MSA to the contrary, Popular’s obligations with respect to
confidentiality and use of the Deposit Materials shall survive termination of this Agreement.
Section 10.2 Costs and Expenses. Except as otherwise specified in this Agreement, all
costs and expenses, including fees and disbursements of counsel, financial advisors and accountants
incurred in fulfilling the obligations under this Agreement, shall be paid by the Party incurring
such costs and expenses. Popular shall pay all Service Fees.
Section 10.3 Notices. All notices, requests, claims, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, courier or overnight delivery service if transmitted prior
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to 5 p.m. on a Business Day, upon delivery (and otherwise such notice, request, claim, demand
or other communication shall be deemed not to have been given until the next Business Day), or (b)
if mailed, four Business Days after deposit in certified or registered mail and with first-class
postage prepaid, or (c) in the case of facsimile notice, when sent and transmission is confirmed if
transmitted prior to 5 p.m. on a Business Day in the place of receipt (and otherwise such notice,
request, claim, demand or other communication shall be deemed not to have been given until the next
Business Day), and, regardless of method, addressed to the Party at its address or facsimile number
set forth below (or at such other address or facsimile number as the Party shall furnish to the
other Party in accordance with this Section 10.3):
If to Seller:
Popular, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CEO & President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CEO & President
copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Executive Vice President & General Counsel
▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Executive Vice President & General Counsel
▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
with copies to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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if to the Company:
EVERTEC, Inc.
▇▇▇▇ #176, Km 1.3
Cupey Bajo, Rio Piedras Puerto Rico 00926
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
▇▇▇▇ #176, Km 1.3
Cupey Bajo, Rio Piedras Puerto Rico 00926
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
copy to: ▇▇▇▇▇ ▇▇▇▇, Esq.
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
with copies to:
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
with copies to:
Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Section 10.4 Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this Agreement, or the
application thereof to any Person or any circumstance, is invalid or unenforceable, (i) a suitable
and equitable provision shall be substituted therefor in order to carry out, so far as may be valid
and enforceable, the intent and purpose of such invalid or unenforceable provision and (ii) the
remainder of this Agreement and the application of such provision to other Persons or circumstances
shall not be affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
Section 10.5 Entire Agreement. This Agreement (including all the Exhibits hereto),
the MBESA and the MSA constitute the entire agreement between the Parties with respect to the
subject matter hereof and thereof and supersede all other prior agreements and understandings, oral
or written, between the Parties with respect to the subject matter hereof and thereof.
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Section 10.6 Assignment.
(a) Assignment. Other than a Permitted Assignment pursuant to this Section 10.6, this
Agreement or the MBESA may not be assigned by either Party without the prior written consent of the
other Party; provided that either Party may assign its rights, duties and obligations under
this Agreement or the MBESA to its financing sources solely in connection with the grant of a
security interest and the enforcement of all rights and remedies that the assigning party has
against the other party under this Agreement or the MBESA (as applicable), subject to claims,
defenses and rights, including rights of set off, that such other party may have against the
assigning party.
(b) Assignment to Subsidiaries. EVERTEC may assign any of its rights, duties or obligations
under this Agreement or the MBESA to a direct or indirect wholly-owned Subsidiary of EVERTEC (an
“Assignee Sub”) if (i) such Assignee Sub is identified by EVERTEC to Popular at least 20
Business Days prior to the consummation of the proposed assignment; (ii) (A) such proposed
assignment is legally required in order for EVERTEC to perform for Popular or its Subsidiaries, in
the country, state, territory or other jurisdiction (“Jurisdiction”) in which the Assignee
Sub is organized, the specific obligations required to be performed pursuant to the assignment of
this Agreement or the MBESA (as applicable), and only (x) to the extent of such legal requirement
and (y) if EVERTEC provides a written opinion of qualified counsel that opines that such legal
requirement is applicable and is based upon reasonable assumptions with respect to such legal
requirement or (B) Popular has provided its prior written consent, such consent not to be
unreasonably delayed, withheld or conditioned; (iii) such Assignee Sub will be Solvent immediately
after and giving effect to such proposed assignment and Popular is reasonably satisfied with the
terms and conditions of the proposed assignment; (iv) Popular is a third-party beneficiary to the
assignment agreement, which is in form and substance that is reasonably satisfactory to Popular,
and which provides that the Assignee Sub’s rights under the assignment agreement will be terminated
if the Assignee Sub ceases to be a wholly-owned Subsidiary, directly or indirectly, of EVERTEC; and
(v) EVERTEC remains fully liable with respect to the performance of all its obligations under this
Agreement or the MBESA (as applicable) and EVERTEC guarantees the performance of all of the
obligations of EVERTEC to Popular assumed by Assignee Sub under this Agreement or the MBESA (as
applicable), which guarantee provides that, for the avoidance of doubt, after any termination of
the proposed assignment, EVERTEC shall continue to be obligated with respect to any obligation
undertaken by Assignee Sub prior to such termination.
(c) Assignment to Third Parties. EVERTEC may assign all of its rights, duties and obligations
under this Agreement or the MBESA (or those rights, duties and obligations arising after the
effectiveness of the assignment) in a transaction with a third-party assignee (an “Asset
Acquirer”) if (i) such Asset Acquirer is identified by EVERTEC to Popular at least 30 Business
Days prior to the consummation of the proposed assignment; (ii) such Asset Acquirer (A) acquires at
least ninety percent (90%) of the consolidated gross assets (excluding cash) of EVERTEC (including
all intellectual property rights in the Deposit Materials), and (B) assumes at least 90% of the
consolidated gross liabilities (excluding Indebtedness) of EVERTEC and its Subsidiaries (including
the assignment and assumption of all commercial agreements between EVERTEC or any of its
Subsidiaries, on the one hand, and Popular, BPPR or any of
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their respective Subsidiaries, on the other hand) through one legal entity; (iii) neither the
Asset Acquirer nor any of its Affiliates is engaged, directly or indirectly, in the banking,
securities, insurance or lending business, from which they derive aggregate annual revenues from
the Commonwealth of Puerto Rico in excess of $50 million unless none of them has a physical
presence in the Commonwealth of Puerto Rico that is used to conduct any such business; (iv) the
Asset Acquirer will be Solvent immediately after and giving effect to such proposed assignment; and
(v) EVERTEC reasonably believes that the Asset Acquirer, after completion of the proposed purchase
and assumption transaction, will be capable of performing the obligations and duties of EVERTEC
under this Agreement or the MBESA (as applicable). For clarity, this Agreement and the MBESA shall
be considered a “commercial agreement” for purposes of clause (ii) in the immediately preceding
sentence and in the corresponding provision in the MSA.
(d) Cooperation. EVERTEC shall use its reasonable best efforts to cooperate with Popular in
evaluating whether any proposed assignment pursuant to this Section 10.6 would be in compliance
with the requirements of the provisions contained in this Section 10.6, including the ability of
Assignee Sub or Asset Acquirer, as applicable, to comply with the terms of this Agreement,
including, in each case, by providing any non-confidential information regarding the purposes and
plans in connection with such proposed assignment other than information that would create any
potential liability under applicable Law, violate any confidentiality obligation, or that
reasonably would be expected to result in the waiver of any attorney-client privilege.
(e) Notice Obligation. Popular shall notify EVERTEC in writing within 15 Business Days
following receipt of EVERTEC’s notice of the proposed assignment of any objection to any proposed
assignment to an Asset Acquirer under Section 10.6(c) unless EVERTEC has failed to satisfy its
obligations pursuant to Section 10.6(d) and Popular asserts such failure prior to the expiration of
the 15 Business Day objection period, in which case such 15 Business Day period shall be tolled
until EVERTEC satisfies its obligations pursuant to Section 10.6(d). If Popular fails to timely
object to such proposed assignment (taking into account any tolling of the 15 Business Day
objection period), it shall be deemed to have consented to such proposed assignment.
(f) Implied Consent. Notwithstanding anything contained herein, if Popular, BPPR or any of
their respective Controlled Affiliates votes in favor of a transaction resulting in a proposed
assignment and was not compelled to do so as part of a Dragged Asset Sale or other requirement of
the Stockholder Agreement or any other Group Agreement with respect to securities issued by Holdco
or EVERTEC or any successor or other entity that acquired all or substantially all the assets of
Holdco or EVERTEC or any of their respective successors then it shall be deemed to have consented
to the assignment.
(g) Invalidity of Impermissible Assignments. Any attempted or purported assignment in
violation of this Section 10.6 hereof shall be null and void and the assignee’s rights assigned
pursuant to any assignment made in compliance with this Section 10.6 will terminate in the event
and to the extent of the termination of this Agreement or the MBESA (as applicable).
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Section 10.7
EVERTEC Change of Control.
(a) EVERTEC Change of Control. Popular shall have the right, subject to Section 10.7(c), to
terminate this Agreement or the MBESA, up to 30 days following the later of (i) the occurrence of
an EVERTEC Change of Control or (ii) the date on which EVERTEC provides Popular written notice that
an EVERTEC Change of Control has occurred or is likely to occur (provided that if EVERTEC has not
satisfied its obligations pursuant to Section 10.7(b) and that Popular asserts such failure prior
to the expiration of the 30 day period then such 30 day period shall be tolled until EVERTEC
satisfies its obligations under Section 10.7(b) and provided further that if an
EVERTEC Change of Control occurs, and EVERTEC fails to provide Popular written notice thereof
within 30 days thereof, then Popular shall have an unqualified right to terminate this Agreement),
unless (w) the Person or Group of Persons proposing to engage in such proposed EVERTEC Change of
Control transaction (the “Control Acquirer”) is identified to Popular by EVERTEC at least
30 Business Days prior to such proposed EVERTEC Change of Control; (x) neither the Control Acquirer
nor any of its Affiliates is engaged, directly or indirectly, in the banking, securities, insurance
or lending business, from which they derive aggregate annual revenues from the Commonwealth of
Puerto Rico in excess of $50 million unless none of them has a physical presence in the
Commonwealth of Puerto Rico that is used to conduct any such business; (y) EVERTEC (or its
successor, as applicable) will be Solvent immediately after and giving effect to such proposed
EVERTEC Change of Control; and (z) EVERTEC (or its successor, as applicable), after the proposed
EVERTEC Change of Control, will be capable of performing the obligations and duties of EVERTEC
under this Agreement or the MBESA (as applicable); provided further that if
Popular, BPPR or any of their respective Controlled Affiliates votes in favor of the transaction
resulting in the EVERTEC Change of Control or Transfers (other than a Transfer in the context of a
merger, business combination, reorganization, recapitalization or similar transaction) any equity
securities in connection with the transaction resulting in the EVERTEC Change of Control and, in
either case, was not compelled to do so as part of a Drag-Along Transaction, a Dragged Asset Sale
or other requirement of the Stockholder Agreement or any other Group Agreement with respect to
Holdco, EVERTEC or any successor or other entity holding all or substantially all the assets of
EVERTEC and its Subsidiaries, then such termination right shall not apply.
(b) Cooperation. EVERTEC shall use its reasonable best efforts to cooperate with Popular in
evaluating whether any proposed EVERTEC Change of Control would be in compliance with the
requirements of this Section 10.7 including the ability of Assignee Sub or Asset Acquirer, as
applicable, to comply with the terms of this Agreement or the MBESA (as applicable), including, in
each case, by providing any non-confidential information regarding the purposes and plans in
connection with such proposed EVERTEC Change of Control other than information that would create
any potential liability under Law, violate any confidentiality obligation, or that reasonably would
be expected to result in the waiver of any attorney-client privilege.
(c) Notice of Objection. If EVERTEC provides at least 30 days written notice to Popular prior
to an EVERTEC Change of Control, Popular shall notify EVERTEC in writing within 15 Business Days
following receipt of EVERTEC’s notice of the proposed EVERTEC Change of Control of any objection to
any proposed EVERTEC Change of Control on the basis
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that it does not satisfy the criteria set forth in clauses (w) through (z) of Section 10.7(a)
(unless EVERTEC has failed to satisfy its obligations pursuant to Section 10.7(b) and Popular
asserts such failure prior to the expiration of the 15 Business Day objection period, in which case
such 15 Business Day objection period shall be tolled until EVERTEC satisfies its obligations
pursuant to Section 10.7(b)). If Popular fails to timely object to such proposed assignment
(taking into account any tolling of the 15 Business Day objection period), it shall be deemed to
have consented to such proposed EVERTEC Change of Control and waived its right of termination under
Section 10.7(a).
Section 10.8 Amendment; Waiver. Any provision of this Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing and signed, in the case of an
amendment, by Popular and EVERTEC, or in the case of a waiver, by the Party against whom the waiver
is to be effective. No failure or delay by any Party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by Law.
Section 10.9 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of Delaware without regard to any conflict of law rules thereof that would
apply to the laws of a different jurisdiction. Each Party hereto agrees that it shall bring any
action for injunctive relief in accordance with Section 9.2 exclusively in any federal court
located in the State of Delaware or any Delaware state court (the “Chosen Courts”), and
solely in connection with an action for injunctive relief brought in accordance with Section 9.2
(i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any
objection to laying venue in any such action in the Chosen Courts, (iii) waives any objection that
the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party hereto and
(iv) agrees that service of process upon such Party in any such action for injunctive relief
brought in accordance with Section 9.2 shall be effective if notice is given in accordance with
Section 10.3. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY ACTION FOR EQUITABLE RELIEF, SUCH
AS INJUNCTIVE RELIEF OR SPECIFIC PERFORMANCE, BROUGHT IN ACCORDANCE WITH SECTION 4.4, 6.8 OR 8.2 IS
LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY SUCH ACTION. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY HERETO
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY HERETO MAKES THIS
WAIVER VOLUNTARILY AND (D) EACH PARTY HERETO HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.9.
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Section 10.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall constitute one and
the same Agreement.
Section 10.11 Headings. The heading references herein and the table of contents hereof
are for convenience purposes only, and shall not be deemed to limit or affect any of the provisions
hereof.
Section 10.12 No Additional Rights. Except as expressly provided otherwise in this
Agreement, the Parties hereto agree that no provisions of this Agreement shall grant to either
Party hereto any additional rights to the other Party’s proprietary information, technology or
know-how.
Section 10.13 Further Assurances. The Parties agree to take all further actions,
execute all further documents and otherwise cooperate in good faith to further the intents and
purposes of this Agreement. Without limiting the foregoing, in the event that Iron Mountain no
longer offers the services it has agreed to provide under the MBESA, terminates the MBESA pursuant
to Section 6(a)(v) thereunder the Parties will negotiate in good faith to select and enter into an
agreement with a new third-party escrow agent, and EVERTEC will deposit all Deposit Materials and
Future Deposits with such escrow agent in accordance with the terms of this Agreement.
Section 10.14 Bankruptcy. The licenses granted herein shall be deemed to be, for
purposes of Section 365(n) of The Bankruptcy Reform Act of 1978, as amended, and codified as 11
U.S.C. §§ 101 et. seq. (the “Bankruptcy Code”), licenses to rights in “intellectual
property” as defined in Section 101 of the Bankruptcy Code. The Parties agree that Popular shall
retain and may fully exercise all of its rights and elections under the Bankruptcy Code. In the
event that EVERTEC becomes the subject of a bankruptcy proceeding under the Bankruptcy Code (either
voluntarily or involuntarily) (a “Bankruptcy Event”), Popular shall be entitled, at its
option, to: (i) retain all of its rights under this Agreement pursuant to Section 365(n) of the
Bankruptcy Code, or (ii) to receive a complete duplicate of, or complete access to, all subject
matter licensed hereunder to Popular constituting “intellectual property” under Section 101 of the
Bankruptcy Code and all embodiments thereof. If such intellectual property is not already in
Popular’s possession, it shall be promptly delivered to Popular upon Popular’s written request (i)
upon any such commencement of a Bankruptcy Event, unless EVERTEC agrees to continue to perform all
of its obligations under this Agreement, or (ii) upon the rejection of this Agreement by or on
behalf of EVERTEC. For the avoidance of doubt, nothing contained in this Section 10.14 shall limit
the rights of Popular under the MBESA.
[signature page follows]
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IN WITNESS WHEREOF, each Party has caused this Agreement to be executed by its duly authorized
representative.
| POPULAR, INC. |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Senior Vice President | |||
| EVERTEC, INC. |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | President | |||