exhibit105farestrictivec






                                                                                     CONFIDENTIALITY, INTELLECTUAL PROPERTY AND RESTRICTIVE                COVENANT PROTECTIVE AGREEMENT                                   dated                              15 JULY 2019                     STATE STREET ASIA LIMITED                                    and                      FRANCISCO ARISTEGUIETA                                                                                                                                                                                                                                                                                                                          





 






                                                                                                      Confidentiality, Intellectual Property and Restrictive Covenant Protective Agreement      This Confidentiality, Intellectual Property and Restrictive Covenant Protective Agreement  (“Agreement”) is dated 15 July 2019   Between   State Street Asia Limited (the “Company” or “State Street”), whose registered office is at L68,  Two International Finance Centre, 8 Finance Street, Central, Hong Kong;    and   Francisco Aristiguieta  of [address] (the “Employee” or “You”);   This Agreement now witnesses as follows:   1.     Undertakings   You agree to the undertakings and terms set out below.  For the avoidance of doubt, this Agreement  is not a contract of employment as defined by the Employment Ordinance or otherwise.    2.     Confidentiality   2.1    You  acknowledge  that  you  have  access  to  Confidential  Information  which  is  not  generally         known or made available to the general public and that such Confidential Information is the         property  of  the  Company,  its Associated  Companies, or  its  or  their  licensors,  suppliers  or         customers.   Subject  to clause 12,  below,  you  agree  specifically  as  follows,  in  each  case         whether during your Employment or following the termination thereof:-          (a)     You  will always  preserve as confidential all  Confidential Information, and  will  never                use it for your own benefit or for the benefit of others; this includes that you will not                use the knowledge of activities or positions in clients’ securities portfolio accounts or                cash accounts for your own personal gain or for the gain of others.          (b)    You  will  not  disclose,  divulge,  or  communicate  Confidential  Information  to  any                unauthorized person, business or corporation during or after the termination of your                Employment  with  the  Company  and  its Associated  Companies.   You  will  use  your                best  efforts  and  exercise  due  diligence  to  protect,  to  not  disclose  and  to  keep  as                confidential all Confidential Information.          (c)    You  will  not  initiate  or  facilitate  any  unauthorized  attempts  to  intercept  data  in                transmission  or  attempt  entry  into  data  systems  or  files.   You  will  not  intentionally                affect the integrity  of any  data or systems of the Company or  any of  its Associated                Companies   through  the  introduction  of  unauthorized  code  or  data,  or  through                unauthorized deletion or addition.  You will abide by all applicable information security                policies and procedures of the Company and its Associated Companies.          (d)    Upon the earlier of request or termination of Employment, you agree to return to the                Company or the relevant Associated Companies, or if so directed by the Company or                the relevant Associated Companies, to destroy any and all copies of materials in your                possession containing Confidential Information.   2.2     The terms of this clause 2 do not apply to any information which is previously known to you         without  an  obligation  of  confidence  or  without  breach  of  this clause  2,  is  publicly  disclosed         (other than by a violation by you of the terms of this clause 2) either prior to or subsequent to         your  receipt  of  such  information,  or  is  rightfully  received  by  you  from  a  third  party  without                                                                                                 2                                                                                                   





 






                                                                                                        obligation of confidence and other than in relation to your Employment with the Company or         any of its Associated Companies.   2.3    State  Street  recognizes  that  certain disclosures  of  confidential  information  to  appropriate         government  authorities  or  other  designated  persons  are  protected  by  “whistle-blower”  and         other laws.  Nothing in this clause 2 is intended to or should be understood or construed to         prohibit or otherwise discourage such disclosures.  State Street will not tolerate any discipline         or other retaliation against employees who properly make such legally-protected disclosures.   3.     Intellectual Property   3.1    You acknowledge  and agree  that all Intellectual  Property made, originated  or developed by         you (whether alone or jointly with others) at any time during the course of your employment         with  the  Company  (whether  or  not  made,  originated  or  developed  during  normal  working         hours) or in carrying out the Company’s instructions, shall belong to and vest in the Company         to  the  fullest  extent  permitted  by  law  (“Employment  IP”).  For  the  avoidance  of  doubt,         Employment  IP  does  not  include Intellectual  Property  made,  originated or  developed  which         are  wholly  unconnected  with your employment  with  the  Company. You acknowledge and         agree that the Company and its Associated Companies can disclose and exploit all rights in         and to the Employment IP and to modify them, as they consider appropriate.   3.2    To  the  extent  that  any  of  the  Employment  IP  does  not  vest  in  the  Company, you  hereby         assign all  rights,  title  and  interest  in  and  to  the  Employment  IP  to  the  Company. This         assignment  (if  any)  is  valid  worldwide,  irrevocable,  perpetual,  transferable,  and  for  any         exploitation forms or means, including those unknown at the present date. The compensation         for this assignment (if any) is included in your salary and other remuneration, and you agree         not to make any claims against the Company or any Associated Company in respect of this         assignment.   3.3    You  must  promptly  disclose  to  the  Company  and  to  no  one  else  the  full  details  of  all         Employment  IP  made,  originated  or  developed  by you whether  alone  or  jointly  with  others,         including all records, documents, papers, drawings and models relating to such Employment         IP.   3.4    All records, documents, papers (including copies and summaries thereof), drawings, models         and  other  copyright  protected  works  made  or  acquired  by you in  the  course  of your         employment shall, together with all the worldwide copyright and design rights in all such works,         be and at all times remain the absolute property of the Company. You shall return the same to         the Company upon termination of employment.   3.5    You hereby irrevocably and unconditionally waive in favour of the Company all rights granted         by the Copyright Ordinance in connection with his/her authorship of any copyright works in the         course of his/her employment with the Company, including without limitation any moral rights         and any right to claim an additional payment with respect to use or exploitation of those works.         In particular, you agree that you will not be entitled to any award under Section 14(2) of the         Copyright  Ordinance  even  if  the  copyright  work  is  exploited  in  such  a  way  that  could  not         reasonably have been contemplated by the Employee and the Company at the time of making         the work.    3.6    You agree that:          (a)    your salary and other remuneration are full compensation for your services and all                present and future uses of copyright works made by you in the course of your                employment; and                                                                                                  3                                                                                                   





 






                                                                                                        (b)    you will not make any claims against the Company or any Associated Company with                respect to those copyright works.   3.7    If you make any inventions that do not belong to the Company under the Patents Ordinance,         you agree that you will forthwith exclusively license or assign (as determined by the Company)         to the Company or one of its Associated Companies your rights in relation to such inventions         and will deliver to the Company or the appropriate Associated Company all documents and         other  materials  relating  to  them.  The  Company  will  pay  to you such  compensation  for  the         licence or assignment as the Company will determine in its absolute discretion, subject to the         Patents Ordinance.   3.8    You shall, at the request and expense of the Company both during and after the termination         of  his/her  employment,  do  all  things  necessary  or  desirable  (including  the  execution  of         documents) to obtain, perfect, maintain and enforce the rights of the Company or any of its         Associated Companies under this Clause 3.   4.     Non-Competition   4.1    During your Employment and for the six (6) months following its termination for any reason,         you  will  not  within the Restricted  Territory,  directly  or  indirectly,  whether  as  owner,  director,         partner, investor, consultant, agent, employee, co-venturer or otherwise and whether alone or         in conjunction with or on behalf of any other person--          (a)    become engaged, employed, concerned or interested in or provide technical,                commercial or professional advice to, any Person which supplies or provides (or                intends to supply or provide) Products or Services in competition with such parts of                the business of the Company or any Relevant Associated Company with which you                were materially engaged or involved or for which you were responsible during the                Relevant Period;          (b)    compete with the Company or any Relevant Associated Company, or undertake any                planning for any business competitive with the business of the Company or any                Relevant Associated Company;          (c)    engage in any manner in any activity that is directly or indirectly competitive or                potentially competitive with the business of the Company, or any Relevant Associated                Company as conducted or under consideration during the Relevant Period and further                agree not to work or provide services, in any capacity, whether as an employee,                independent contractor or otherwise, whether with or without compensation, to any                Person who is engaged in any business that is competitive with the business of the                Company or any Relevant Associated Company, as conducted or in planning during                the Relevant Period.    4.2    The  period  of  6 months  referred  to above will  be  reduced  by  one day  for  every  day  during         which, at the Company’s direction, you are on a period of garden leave.   4.3     Nothing in this clause 4 shall prevent your passive ownership of two percent (2%) or less of         the equity securities of any publicly traded company.   5.     Non-Solicitation   5.1    You agree that, during your Employment and for a period of six (6) months from the date your         Employment terminates for any reason  you  will  not,  without the prior  written consent  of the         Company:           (a)    solicit, directly or indirectly (other than through a general solicitation of employment                not specifically directed to employees of the Company or any of its Associated                                                                                                 4                                                                                                   





 






                                                                                                               Companies), the employment of, hire or employ, recruit, or in any way assist another                in soliciting or recruiting the employment of, or otherwise induce the termination of the                employment of, any person who then or within the preceding twelve (12) months was                an officer of the Company or any of its Associated Companies (excluding any such                officer whose employment was involuntarily terminated); or           (b)    engage in the Solicitation of Business from any Client on behalf of any person or                entity other than the Company or any of its Associated Companies.   5.2    For  purposes  of  this clause  5,  “officer”  shall  include any  person  holding  a  position  title  of         Assistant Vice President or SSGA Principal 4 or higher.     6.     Associated Companies   6.1    Clauses 2  to 5 (inclusive) above and  the  definitions  in  this Agreement will  also  apply  as         though  references  to  Company  were  substituted  with  references  to each Associated         Company.  Each  of  these  provisions  will,  with  respect  to  each Associated  Company,         constitute a separate and distinct covenant and the invalidity or unenforceability of any such         covenant  shall  not  affect  the  validity  or  enforceability  of  the  covenants  in  favour  of  the         Company or any other  Associated Company.  The provisions of this “Associated Company”         provision shall only apply in respect of those Associated Companies:          (i)    with whom you have given your services;           (ii)   for whom you have been responsible; or          (iii)  with whom you have otherwise been concerned,          in the 12 months immediately preceding the Termination Date. You agree to be bound by and         comply  with  the  terms  and  conditions  of  this Agreement with  respect  to  such Associated         Companies as if you entered into a separate agreement with each of them.   6.2    In relation to each Associated Company referred to in the paragraph immediately above, the         Company executes as trustee and agent for the benefit of each such Associated Company.           You agree that, if required to do so by the Company, you will enter into covenants in the same         terms  as  those  set out  in  clauses 2 to 5 (inclusive)  hereof  directly  with  all  or  any  of  such         Associated Companies, mutatis mutandis and the Company shall be entitled, and is hereby         irrevocably  and  unconditionally  authorised  by you,  to  execute  all  such  documents  as  are         required to give effect to the foregoing, on your behalf.   6.3    Both parties acknowledge that the prohibition and restrictions contained in this Agreement are:         (a)     reasonable as to period, territorial limitation and subject matter; and         (b)     are  no  more  than  that  which  is  reasonably  required  for  the  protection  of  the                Company’s  (or  relevant Associated  Company’s)  legitimate  business  interests  and  of                any Confidential Information the Employee may have learned or possessed during the                term of this Agreement.   6.4    You execute this Agreement for the benefit of the Company and each Associated Company.         You acknowledge and agree that the Company and each of the Associated Companies may         independently  enforce  this Agreement against you  including  by  obtaining  and  enforcing         injunctive relief under Clause 9.    6.5    The  rights  and  obligations  under  these  covenants  shall  remain  in  full  force  and  effect  and         survive the termination of this Agreement for any reason whatsoever.                                                                                                     5                                                                                                   





 






                                                                                                 7.     Further Obligations of the Employee          You agree that in the event of receiving from any person, company, business entity or other         organisation  an  offer  of  employment  or  engagement  either  during  the  continuance  of your         employment with the Company or during the continuance in force of any of the restrictions set         out in this Agreement, you will forthwith provide to such person, company, business entity or         other  organisation  making  such  an  offer  of  employment  a  full  and  accurate  copy  of  this         Agreement signed by the parties hereto.   8.     Third Party Rights   8.1    Subject to Clause 8.2, Associated Companies (“Third  Parties”) may enforce the terms and         accordingly  shall  have  the  benefit  of  those  provisions  in  this  Agreement  which  are,  or  are         stated to be, for their benefit, subject to and in accordance with the provisions of the Contracts         (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong) (“Third Parties         Ordinance”).   8.2    The parties to this Agreement may by agreement terminate, rescind or vary the terms of this         Agreement (including this Clause 8) at any time and in any way without the prior consent of or         notice to any Third Party.   8.3    Except  as  provided  in  Clause 8.1,  the  terms  of  this  Agreement  are  not  intended  to  be         enforceable by virtue of the Third Parties Ordinance by any person who is not a party to this         Agreement.    9.     Enforcement            You acknowledge and agree that the promises contained in this Agreement are necessary to         the  protection  of  the  legitimate  business  interests  of the  Company and  its Associated         Companies, including without limitation its and their confidential information, trade secrets and         good  will,  and  are  material  and  integral  to  the  undertakings  of  the  Company  under  this         Agreement.   You  further  agree  that  one  or  more  of  the  Company  and  its Associated         Companies  will  be  irreparably  harmed  in  the  event  you  do  not  perform  such  provisions  in         accordance  with  their  specific  terms  or  otherwise  breach  the  promises  made  herein.          Accordingly,  the  Company  and  any  of  its Associated  Companies shall  each  be  entitled  to         preliminary  or  permanent  injunctive  or  other  equitable  relief  or  remedy  without  the  need  to         post  bond,  and  to  recover  its  or  their  reasonable  attorney’s  fees  and  costs  incurred  in         securing such relief, in addition to, and not in lieu of, any other relief or remedy at law to which         it or they may be entitled.  You further agree that, the periods of restriction contained in this         Agreement shall be tolled, and shall not run, during any period in which you are in violation of         the terms of this Agreement, so that the Company and its Associated Companies shall have         the full protection of the periods agreed to herein.   10.    No Waiver            No delay by the Company or any of its Associated Companies in exercising any right under         this  Agreement shall  operate  as  a  waiver  of  that  right or  of  any  other  right.   Any  waiver  or         consent as to any of the provisions herein provided by the Company or any of its Associated         Companies must be in writing, is effective only in that instance, and may not be construed as         a broader waiver of rights or as a bar to enforcement of the provision(s) at issue on any other         occasion.   11.    Relationship to Other Agreements            This Agreement supplements and does not limit, amend or replace any other obligations you         may have under applicable law or any other agreement or understanding you may have with         the Company or any of its Associated Companies or pursuant to the applicable policies of any                                                                                                6                                                                                                   





 






                                                                                                        of them, whether such additional obligations have been agreed to in the past, or are agreed to         in the future.   12.    Certain Limitations   12.1   Nothing this Agreement prohibits you from reporting possible violations of law or regulation to         any  governmental  agency  or  regulatory  authority  or  from  making  other  disclosures  that  are         protected under the whistleblower provisions of federal law or regulation.  Moreover, nothing         in this Agreement requires you to notify the Company that you have made any such report or         disclosure.  However, in connection with any such activity, you acknowledge you must take         reasonable precautions to ensure that any Confidential Information that is disclosed to such         authority is not made generally available to the public, including by informing such authority of         the confidentiality of the same.   12.2   Despite  the  foregoing,  you  also  acknowledge  that  you  are  not  permitted  to  disclose  to  any         third-party, including any governmental or regulatory authority, any information learned in the         course  of  your  Employment  that  is  protected  from  disclosure  by  any  applicable  privilege,         including  but  not  limited  to  the  attorney-client  privilege,  attorney  work  product  doctrine,  the         bank examiner’s privilege,  and/or privileges applicable to information covered  by  the United         States Bank Secrecy Act (31 U.S.C. §§ 5311-5330), including information that would reveal         the  existence  or  contemplated  filing  of  a  suspicious  activity  report.  The  Company  and  its         Associated  Companies  do  not  waive  any  applicable  privileges  or  the  right  to  continue  to         protect  its  and  their  privileged  attorney-client  information,  attorney  work  product,  and  other         privileged information.   13.    Miscellaneous   13.1   The  various  provisions  and  sub-provisions  of  this Agreement are  severable  and  if  any         provision or sub-provision is held to be unenforceable by any court of competent jurisdiction         then  such  unenforceability  shall  not  affect  the  enforceability  of  the  remaining  provisions  or         sub-provisions in this Agreement.   13.2   This Agreement may be executed in one or more counterparts, each of which will be deemed         to  be  an  original copy  of  this  Agreement  and  all  of  which,  when  taken  together,  will  be         deemed to constitute one and the same instrument.  For the purposes of this Agreement, a         signed copy of a facsimile or a scanned version shall be valid and enforceable as an original         and binding on the parties hereto.   13.3   The benefit of each agreement and obligation of you under this Agreement may be assigned         to  and  enforced  by  all  successors  and  assigns  for  the  time  being  of  the  Company  and  its         Associated  Companies (as  applicable)  and  such  agreements  and  obligations  shall  operate         and remain binding notwithstanding the termination of this Agreement.   13.4   This Agreement and any disputes relating to this Agreement, including those pertaining to or         arising out  of its interpretation,  performance, amendment or enforcement shall  be governed         by  and construed  in accordance  with  the laws  of  Hong  Kong and the  parties  submit  to the         non-exclusive jurisdiction of the Hong Kong Courts and Labour Tribunal.   14.    Definitions          For  the  purposes  of  this  Agreement,  the following  words  and  expressions  shall  have  the         meanings set out below:   14.1   “Associated Companies” means any entity controlling, controlled by or under common control         with the Company, including direct and indirect subsidiaries and includes, without limitation,         State Street Corporation and State Street Bank & Trust Co. and all of their direct and indirect         subsidiaries.                                                                                                 7                                                                                                   





 






                                                                                                 14.2   “Confidential  Information”  includes  but  is  not  limited  to  all  trade  secrets,  trade  knowledge,         systems, software, code,  data documentation, files, formulas, processes, programs, training         aids, printed materials, methods, books, records, client files, policies  and procedures, client         and  prospect  lists,  employee  data  and  other  information  relating  to  the  operations  of  the         Company or any of its Associated Companies  and to its or any of their customers, and any         and all discoveries, inventions or improvements thereof made or conceived by you or others         for the Company or any of its Associated Companies whether or not patented or copyrighted,         as well as cash and securities account transactions and position records of clients, regardless         of whether such information is stamped “confidential.”   14.3   “Client” means a present or former customer or client of the Company or any of its Associated         Companies with whom you have had, or with whom persons you have supervised have had,         substantive and recurring personal contact during the Relevant Period.  A former customer or         client means a customer or client for which the Company or any of its Associated Companies         stopped providing  all services within twelve months  prior to the date  your  Employment  with         the Company ends.     14.4    “Person”  means  an  individual,  a  corporation,  a  limited  liability  company,  an  association,  a         partnership, an estate, a trust and any other entity or organization (whether conducted on its         own or as part of a wider entity), other than the Company or any of its Associated Companies.   14.5   “Products or Services” means any products or services which are the same as, of the same         kind as, of a materially similar kind to, or competitive with, any products or services supplied         or provided by the Company or Relevant Group Company and with which you were materially         concerned or connected within the Relevant Period.   14.6    “Relevant Associated Company” means the Company and/or any   Associated Companies for         which  you  have  performed  services  or  in  respect  of  which  you  have  had  operational  or         managerial responsibility at any time during the Relevant Period.   14.7   “Relevant Period” means the period of 24 months immediately before the date of termination         of your Employment, or (where such provision is applied) the date of commencement of any         period of garden leave.   14.8    “Restricted Territory” means any area or territory:          (a)    in which you worked during the Relevant Period; and/or          (b)    in relation to which you were responsible for, or materially involved in, the supply of                Products or Services in the Relevant Period.    14.9   “Solicitation of  Business”  means  the  attempt through direct  or  indirect  contact  by  you  or  by         any other Person with your assistance to induce a Client to:            (a)    transfer the Client’s business from the Company or any of its Associated Companies                to any other person or entity;           (b)    cease or curtail the Client’s business with the Company or any of its Associated                Companies; or           (c)    divert a business opportunity from the Company or any of its Associated Companies                to any other person or entity, which business or business opportunity concerns or                relates to the business with which you were actively connected during your                Employment with the Company or any of its Associated Companies.     14.10   “Termination Date” means the date on which your employment terminates.                                                                                                   8                                                                                                   





 






                                                                                                                                                    Signed for and on behalf of  State Street Asia Limited                                                      /s/ Narasimhan SL  Narasimhan SL,  Managing Director, Head of GHR & CC, APAC                                                                          /s/ Francisco Aristeguieta  SIGNED SEALED                       )  AND DELIVERED as a DEED             )         by Francisco Aristeguieta           )         in the presence of :                                                         /s/ Maria Valdes  Signature of witness                                                     Maria Valdes  Name of witness                                                                                                 9