THIS SECONDMENT AGREEMENT (this “Agreement”) is entered into on [insert date]
between:
JERA Co., Inc., a company organised and existing under the laws of Japan having its registered address at Nihonbashi Takashimaya Mitsui Building 25th Floor, 2-5-1 Nihonbashi, Chuo-ku, Tokyo 103-6125 Japan (“JERA”);
SummiT MEghnaghat II Power companY LIMITED, a company incorporated under the laws of Bangladesh, having its registered office at Dhaka, Bangladesh (“SMIIPCL”); and
SUMMIT CORPORATION LIMITED, a company incorporated under the laws of Bangladesh, having its registered office at Dhaka, Bangladesh (“SCL”),
(each individually referred to as a “Party” and together as the “Parties”).
BACKGROUND:
SCL is a holding company, which directly or indirectly owns power generating assets and a floating storage regasification unit and seeks to develop potential projects (the “Projects”) located in Bangladesh.
The Parties are exploring ways in which to cooperate in the operation, maintenance and construction of the Projects, including entering into a secondment agreement.
Pursuant to a shareholders agreement dated 9 October 2019 between Pioneer Generation Company Pte Ltd, JERA Power International B.V. and Summit Power International Limited (the “SHA”), it was agreed that JERA Power International B.V. may second personnel employed by JERA or its Affiliates in positions (such as technical director and manager) to contribute to the strengthening of the group’s internal and technical capabilities and corporate development.
Accordingly, JERA has proposed to second employees to SMIIPCL for this purpose, upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the Parties hereby agree as follows:
Definitions and Interpretation
Certain Definitions
In this Agreement:
“Affiliate” means a legal entity which Controls, or is Controlled by, or which is Controlled by an entity which Controls, a Party, and “Control” means the ownership, directly or indirectly, of fifty (50%) percent or more of the voting rights in a legal entity.
“Indemnified Party” has the meaning given to it in Clause 9.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any national, state, prefectural or local government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Loss” has the meaning given to it in Clause 9.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Seconded Personnel” has the meaning given to it in Clause 2.1.
“Secondment” means the secondment of any Seconded Personnel by JERA to SMIIPCL pursuant to this Agreement.
“Secondment Location” means the headquarters of any of SMIIPCL, Summit Meghnaghat Power Company Limited (“SMPCL”), and Summit Bibiyana Power Company Limited (“SBPCL”) in Dhaka, Bangladesh, or any other location at which the Seconded Personnel is required by SMIIPCL to work, subject to the mutual agreement of the Parties.
“Secondment Period” has the meaning given to it in Clause 2.3.
Interpretation
In this Agreement:
the singular shall include plural and vice versa;
the word “including” shall be deemed to include “without limitation”;
the headings do not affect the interpretation of this Agreement; and
the schedules form part of this Agreement.
SECONDMENT TO SMIIPCL
Pursuant to the terms of this Agreement, JERA may provide employees from time to time during the Term (the “Seconded Personnel”) on secondment to SMIIPCL in the positions set forth in Appendix A in order to perform the services specified in Appendix B (the “Services”) including without limitation, advice on or assistance with the following matters:
management in relation to operation, maintenance and construction of the Projects; and
commercial and technical coordination with the EPC contractor, the O&M contractor, the LTSA contractor, the owner’s engineer, the lenders’ technical advisor(s), JERA and any necessary counterparties in relation to SMIIPCL, SMPCL and SBPCL, provided that such coordination shall be under the supervision and instruction of the Chief Executive Officer of SMIIPCL.
JERA and SMIIPCL shall report to each other of matters related to the Seconded Personnel’s service, change in working conditions, personnel changes, work evaluation by SMIIPCL, and separation from or dismissal by JERA and any other necessary matters.
The secondment of each Seconded Personnel shall be for the length of time set forth in Appendix A, and will begin and end on the dates set forth therein for the respective Seconded Personnel (the “Secondment Period”). The Parties may agree in writing to shorten or lengthen the Secondment Period for any Seconded Personnel. Notwithstanding the above, any secondment arrangement hereunder shall cease in the event the SHA terminates or expires.
Each Seconded Personnel will remain an employee of JERA for all purposes throughout the duration of the Secondment Period.
JERA procures that the Seconded Personnel shall:
perform the Services for SMIIPCL as specified in Appendix B;
provide Services at the Secondment Location on a full-time basis, subject to Clause 2.6;
perform the Services under the direction, supervision and control of SMIIPCL; and
be subject to, and required to comply with, the relevant policies, standards and procedures of SMIIPCL, including those governing working hours and conditions of work, and obey all lawful orders given by SMIIPCL, its directors, officers or other duly authorized persons.
The Parties agree that the Seconded Personnel shall work exclusively for SMIIPCL or its designee, SCL, during the Secondment Period, provided that Seconded Personnel may attend to matters pertaining to JERA (e.g., administrative matters in relation to Seconded Personnel’s employment, as well as reporting to JERA of matters related to the secondment hereunder) from time to time as reasonably necessary.
Prior to the commencement of Secondment Period, SMIIPCL shall, at its own cost and expense, take necessary measures, obtain and thereafter maintain all required work permits, residency permits and/or visas or similar governmental approvals for the Seconded Personnel (and the dependents of the Seconded Personnel, as the case may be). The commencement of the Secondment Period is subject to the relevant Seconded Personnel's receipt of all required work permits, residency permits and/or visas or similar governmental approvals.
The Parties agree that JERA may change each of the Seconded Personnel during the term hereof upon written notice to SMIIPCL. The costs and expenses in connection with such change shall be borne by JERA.
SMIIPCL may, in its reasonable discretion and in consultation with JERA, reasonably require JERA to remove and replace any of the Seconded Personnel. After consultation with SMIIPCL, JERA may replace any Seconded Personnel so removed with any other suitably qualified, experienced and competent Seconded Personnel. The costs and expenses in connection with such removal and replacement shall be borne by SMIIPCL.
Subject to Clause 2.8, the Seconded Personnel during the period starting on [1 August 2020] up to [31 July 2023] shall be Mr. Masatsugu Nakatsuka and Mr. Atsushi Terada]. Such Seconded Personnel shall be responsible for the following:
Mr. Masatsugu Nakatsuka shall work at SMIIPCL and occupy the position of Deputy CEO under the direction of SMIIPCL’s CEO; and
Mr. Atsushi Terada shall work at SMIIPCL and occupy the position of Manager under SMIIPCL’s Deputy CEO.
[Reserved.]
SMIIPCL shall provide each Seconded Personnel with such information and assistance as he/she may reasonably require to carry out his/her obligations.
Following the end of the period referred to in Clause 2.10 and during the operation and maintenance period of the Projects directly or indirectly owned by SCL, JERA may provide Seconded Personnel to work for SMIIPCL.
Notwithstanding anything contained in this Agreement, the Parties agree that upon either Party’s request the Seconded Personnel shall be assigned to perform work for and placed under the supervision of any one or more of SBPCL and SMPCL and, subject to prior written approval by JERA, any other subsidiary of SCL; provided, that, notwithstanding any such assignment, SMIIPCL and SCL shall remain responsible for all of their respective obligations and liabilities under this Agreement.
Effectiveness and Term
This Agreement shall become effective on the date hereof and shall continue in full force and effect during the Term (as set out in Clause 10), unless terminated earlier in accordance with the terms of Clause 10 or extended by an agreement of the Parties in writing.
Benefits of Seconded Personnel [NB: To be discussed.]
During the Secondment Period, SMIIPCL agrees that the Seconded Personnel shall be under the payroll of SMIIPCL and SMIIPCL will be solely responsible for paying the salary or other payments required to be made directly to JERA. SMIIPCL agrees to pay directly to JERA the salary including bonus during the Secondment Period at the following rate:
(a) Mr. Masatsugu Nakatsuka 25,500 USD per month
(b) Mr. Atsushi Terada 17,000 USD per month
Except as otherwise stated herein, SMIIPCL shall provide all facilities and benefits to the Seconded Personnel in accordance with SMIIPCL’s rules and regulations.
During the Secondment Period, SMIIPCL shall be solely responsible for providing any health insurance, disability insurance, life insurance, unemployment insurance, participation in and contributions to any pension or profit-sharing plans, or any other benefit as per the rules and regulations under Bangladeshi law.
With regard to the month when the Seconded Personnel start to work in SMIIPCL, the salary including bonus shall be calculated and paid on a pro-rata basis.
SMIIPCL will pay the salary including bonus of each Seconded Personnel by telegraphic transfer separately to each of JERA’s bank account in Japan by the end of each month.
SMIIPCL shall be responsible for reimbursing the Seconded Personnel for any and all reasonable out-of-pocket business expenses incurred and paid by the Seconded Personnel in connection with providing the Services under this Agreement, including expenses incurred for business travel and accommodation.
Compliance with SMIIPCL Rules and Regulations
The Parties agree that the Seconded Personnel shall be required to comply with, and abide by, all rules, regulations and policies of SMIIPCL, including those governing working hours and conditions of work, and obey all lawful orders given by SMIIPCL, its directors, officers or other duly authorized persons. The Parties further agree that the Seconded Personnel shall be required to conduct themselves at all times in such manner as not to bring discredit on themselves or on SMIIPCL and shall abide by all national and local laws, rules and regulations of Bangladesh.
Subject to Clause 2.6, the Parties also agree that the Seconded Personnel shall be prohibited from engaging directly or indirectly in any other service or business whatsoever during the Secondment Period.
SMIIPCL's Obligations
JERA shall provide welfare program to the Seconded Personnel in accordance with JERA’s employee standards. However, welfare program provided by JERA based on JERA's employee standards and those provided by SMIIPCL based on SMIIPCL' s employee standards shall not preclude the handling of each welfare program.
During the term of this Agreement, SMIIPCL shall be responsible for providing the Seconded Personnel with sufficiently safe and secure working environment at SMIIPCL’s expense, including but not limited to providing facilities to the Seconded Personnel and their family in accordance with SMIIPCL’s policies such as:
One vehicle including insurance, registration, taxes, fees, services, fuels and repairs therefor, along with a driver, for each of (A) the Seconded Personnel and (B) his/her family members collectively (i.e., a total of two vehicles under this subclause (i));
Any reasonable relocation expenses including transport and unpacking/packing of household goods (including customs duties, fees, and storage) for moving into, within and out of Bangladesh;
Reasonable homecoming expense usually once a year
SMIIPCL shall obtain or provide any work permits, visas and any other administrative authorisations required to allow the Seconded Personnel, and if applicable their dependents, to work and reside in the Secondment Location for the Secondment Period, at SMIIPCL’s expense.
SMIIPCL shall render all assistance in obtaining customs clearance of personal belongings of each Seconded Personnel, and if applicable his or her dependents, at SMIIPCL's expense.
SMIIPCL agrees that Seconded Personnel may take annual leave in accordance with SMIIPCL’s HR policy. In addition to the above, SMIIPCL agrees that Seconded Personnel may take maximum 14 days special leave for the sake of ceremonial occasion or temporary return to Japan.
SMIIPCL shall provide holidays to each of the Seconded Personnel in accordance with SMIIPCL’s internal policy and regulation. If the number of holidays is less than that of Japan, the respective Seconded Personnel is entitled to additionally take the shortage of holidays.
SMIIPCL agrees to be responsible for business travel expenses and necessary expenses that arise from the Seconded Personnel in accordance with SMIIPCL’s internal policy and regulation.
SMIIPCL agrees that the Seconded Personnel travels to Singapore every quarter in order to report their work updates to Summit Power International Limited, a parent company of SMIIPCL, and SMIIPCL agrees to be responsible for such business travel expenses in accordance with the HR Policy of SMIIPCL.
The Seconded Personnel will be provided with the following benefits and services to the same extent that SMIIPCL provides such benefits and services to the SMIIPCL's managerial staff in the Secondment Locations:
facilities and equipment, including all necessary safety, information technology and communication equipment to perform the Services;
security, safety and first aid services (including emergency medical evacuation) facilities; and
on-the-job training or programmes needed to enable each Seconded Personnel to competently and effectively use the items and services referred to in this Clause 6(j).
SMIIPCL agrees to cooperate in housing search for the Seconded Personnel, to enter into the rental contract with house agency or landlord instead of the Seconded Personnel, and to pay all amounts under the rental contract, including the rent, agency fee (if applicable) and security deposit to the agency or landlord as well as any other related fees or costs including air conditioning maintenance costs. Such amounts incurred by SMIIPCL shall be deducted from the Seconded Personnel’s monthly salary in accordance with Clause 4.
SMIIPCL shall provide all facilities and administration as follows to each of the Seconded Personnel at SMIIPCL’s expense:
Tax payment in Bangladesh including tax application, except that personal income tax of Seconded Personnel arising from his employment in Dhaka is borne by Seconded Personnel, however it is understood that foreign employee working in a power company is exempted from taxes for the first 3 years;
Travel expenses between Dhaka and Bangkok or Singapore, and/or hotel expenses on a quarterly basis. SMIIPCL agrees to reimburse each Seconded Personnel directly the actual expenses incurred by the Seconded Personnel not exceeding 2,400 USD to the Seconded Personnel without family or 3,600 USD to the Seconded Personnel with family for each travel; and
Payment of any required social insurance and pension fund including payment administration services required by laws of Bangladesh.
SMIIPCL shall comply with all applicable Laws in performing the transactions or its activities contemplated under this Agreement.
SCL’S OBLIGATIONs
Hygiene, medical treatment, and safety controls for the Seconded Personnel are subject to SCL’s standards. However, JERA shall not be prevented from handling hygiene, medical care and safety in accordance with JERA’s standards.
SCL shall assume full responsibility for any Loss arising from or in connection with each Seconded Personnel's performance of the Services during the Secondment Period of such Seconded Personnel.
Intellectual Property
To the extent that a Seconded Personnel produces work relating to the Projects, such work (the “Work Product”) will be the sole and exclusive property of SMIIPCL and its assigns, free from any encumbrance, claim, lien for balance due or rights of retention on the part of JERA. SMIIPCL and its assigns shall have all rights, title and interest, including ownership of all intellectual property rights, in and to the Work Product and all associated documentation. For the avoidance of doubt, any existing intellectual property rights of JERA or its Affiliates used in performing the transactions or its activities contemplated under this Agreement shall remain the sole property of JERA or its Affiliates and this clause shall not imply the grant of any license to SMIIPCL in respect of such intellectual property rights.
Indemnity
SCL, to the full extent permitted by applicable Law, shall indemnify, hold harmless and defend JERA and each of JERA’s officers, directors, shareholders, employees, agents, Affiliates, successors and permitted assigns (each an “Indemnified Party”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (”Loss”), that in any way relate to or result from the Services provided by the Seconded Personnel to SCL or any of its Affiliates hereunder, and which also includes, but is not limited to, any claims by, or liabilities and obligations to, the Seconded Personnel or any third party, except to the extent that any such Loss is a result of the gross negligence or wilful misconduct of an Indemnified Party.
Term and Termination
The term of this Agreement (the “Term”) shall commence on the date first written above and end on completion of the Secondment Period for the last remaining Seconded Personnel.
Notwithstanding Clause 10(a):
this Agreement may be terminated by either Party if:
the other Party breaches this Agreement and such breach is incapable of cure, or if such breach is capable of cure, the other Party does not cure such breach within [fourteen (14)] calendar days of a notice by the non-breaching Party stating such breach; or
proceedings in insolvency or bankruptcy or winding up or any other similar proceedings are instituted by or against the other Party or a receiver for the other Party is appointed.
Any rights or obligations of the Parties hereunder that may have accrued prior to the expiration or termination of this Agreement shall survive any such termination or expiration of this Agreement.
Confidentiality
JERA shall ensure that the Seconded Personnel shall not (except (i) in the course of providing the Services to SMIIPCL, (ii) to JERA, JERA’s Affiliates and their respective officers, directors, employees and other representatives with a need to know such information, (iii) as required by Law or (iv) as authorized by SMIIPCL), during the Secondment Period and after its termination, use, reveal, or communicate to any Person any non-public, proprietary and commercially sensitive information relating to SMIIPCL or the Projects that any Seconded Personnel creates, develops, receives or obtains during the Secondment Period in the course of providing the Services (“Confidential Information”). Confidential Information will not include information that (x) is or becomes available to the public other than by breach of this Agreement by, or other wrongful act of, the Seconded Personnel, (y) is received by the Seconded Personnel from a third party who is not under any obligation to SMIIPCL to maintain the confidentiality of such information or is already known by the Seconded Personnel prior to receiving it from SMIIPCL or (z) is independently developed by the Seconded Personnel without reference to Confidential Information.
The obligations imposed by this clause will survive the expiration or termination of this Agreement for a period of five (5) years.
Consultation
In the case where any ambiguity arises in interpretation of this Agreement or any controversial matter that is not stipulated in this Agreement, JERA and SMIIPCL shall settle it after mutual consultation.
Governing law and Dispute Resolution
This Agreement (including the arbitration provision below) and all claims arising in connection with this Agreement (whether of a contractual or non-contractual nature), and all arbitral proceedings hereunder shall be governed by and construed in accordance with the laws of England and Wales excluding any conflicts of law rules which would require the application of another jurisdiction’s laws.
The Parties shall strive to resolve amicably any dispute, controversy, claim or difference arising out of or in relation to or in connection with this Agreement or for the breach thereof (a “Dispute”) by good faith discussions. Failing such amicable resolution within a thirty (30) day period, a Dispute shall be submitted to and settled by binding arbitration administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are incorporated by reference in this Clause 11. The seat of the arbitration shall be in Singapore and the language of the arbitration shall be English. Unless the Parties agree to one (1) arbitrator, there shall be three (3) arbitrators. Each Party shall appoint one (1) arbitrator and those two (2) arbitrators shall appoint the remaining arbitrator. The award of the arbitrator(s) shall be final and binding upon the Parties, and judgment thereon may be entered in any court of competent jurisdiction.
All arbitral proceedings, including all decisions/awards by the arbitrator(s) shall be confidential and the Parties shall maintain and preserve the confidentiality thereof.
General
Notices
Unless otherwise expressly provided in the Agreement, any notice, demand, consent or other communication (each a “Notice”) given or made pursuant to the Agreement must:
be in writing in the English language;
be signed or authorised by an authorised representative of the Party giving notice; and
be delivered by prepaid courier or registered post, by hand or by e-mail to the Party to whom the notice is addressed at its address as shown in Clause 12.1(c) or such other address as that Party may have notified to the other Party in accordance with this clause.
A Notice will be taken to be duly given:
in the case of delivery by hand, at the time of delivery;
in the case of delivery by post, two Business Days after the date of posting (if posted to an address in the same country) or seven (7) Business Days after the date of posting (if posted to an address in another country); or
in the case of delivery by e-mail, when a delivery receipt in respect of the electronic mail is generated or, if such notice is not so generated, when such electronic mail arrives at the recipient’s server,
but if the result is that a Notice would be taken to be given or made on a day that is not a Business Day or the Notice is sent or is received later than 4:00 p.m. (local time) it will be taken to have been duly given at the commencement of business on the next Business Day. “Business Day” means any day other than 29 December to 3 January (inclusive of both days), Saturday, Sunday or a day on which banks are closed in Bangladesh or Japan.
Addresses for the purpose of giving notice are as follows:
JERA:
Address: JERA Co., Inc.
Nihonbashi Takashimaya Mitsui Building 25th Floor
2-5-1 Nihonbashi, Chuo-ku, Tokyo 103-6125, Japan
Attention to: Mr. Noriyuki Ueda
Email: Noriyuki.Ueda@jera.co.jp
SMIIPCL:
Address: Summit Corporation Limited Summit Centre, 18 Kawran Bazar Commercial Area, Dhaka - 1215, Bangladesh
Attention to: [•]
Email: [•]
SCL:
Address: Summit Corporation Limited Summit Centre, 18 Kawran Bazar Commercial Area, Dhaka - 1215, Bangladesh
Attention to: [•]
Email: [•]
Amendments
Any amendment, modification, variation or waiver of any provision of this Agreement shall be in writing, expressed to vary this Agreement and signed by authorised representatives of each Party.
No Waiver
No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof and any waiver of any breach of the provisions of this Agreement shall be without prejudice to any rights with respect to any other or further breach thereof.
Severability
If any term or provision, or part of any term or provision, of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement in any other jurisdiction.
No Assignment; No Third Party Beneficiaries
Neither Party shall assign, transfer, in whole or in part, by operation of law or otherwise, this Agreement, or any of the rights and obligations under this Agreement, without the prior written consent of the other Party. Any attempted assignment and transfer without such consent shall be null and void. The Parties do not intend any term of this Agreement to be enforceable under the Contracts (Rights of Third Parties) Act, 1999 (UK) by any person who is not a party to this Agreement. The Parties may rescind or vary this Agreement, in whole or in part, without the consent of any person who is not a party to this Agreement.
Entire Agreement
This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and contains all the representations, warranties and agreements of the Parties respecting the subject matter hereof. This Agreement supersedes any previous expression of intent, correspondence, undertaking, negotiations or agreement, whether written or oral, with respect to this transaction between the Parties.
Counterparts
This Agreement may be executed in counterparts. All executed counterparts constitute one document. A manually signed copy of this Agreement in AdobeTM Portable Document Format (PDF) or other electronic format delivered by e-mail shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
[Signature page follows.]
IN WITNESS whereof, the Parties have executed and delivered this Agreement as of the date first written above.
JERA CO., INC.
By:
Name:
Title:
SUMMIT MEGHNAGHAT II POWER COMPANY LIMITED
By:
Name:
Title:
Summit Corporation Limited
By:
Name:
Title:
Appendix A
Seconded Personnel
[Deputy Chief Executive Officer of Summit Meghnaghat II Power Co. Ltd.]
Specification
- Having engineering background or other mutually agreed one
- 15-25 years or more working experience in energy industry with following track records;
* [5] years or more working experience of thermal power plant operation, maintenance, or construction
- Working experience shall include following areas
* Commissioning in thermal power plant
* Planning of Operation and Maintenance of thermal power plant
- Language: Business level English
Secondment Period
2-3 years from the Date of Commencement (as set out below)
Date of Commencement
[1 August 2020 ] (subject to receipt of work visa)
End Date of Secondment
[31 July 2023]
[Manager of Summit Meghnaghat II Power Co. Ltd.]
Specification
- Having engineering background or other mutually agreed one
- 5-15 years or more working experience in energy industry with following track records;
* [3] years or more working experience of thermal power plant operation, maintenance, or construction
- Working experience shall include following areas
* Commissioning in thermal power plant
* Planning of Operation and Maintenance of thermal power plant
- Language: Business level English
Seconded Period
2-3 years from the Date of Commencement (as set out below)
Date of Commencement
[1 August 2020]
End Date of Secondment
[31 July 2023]
Appendix B
description of services
[Deputy Chief Executive Officer of Summit Meghnaghat II Power Co. Ltd.]
To check and review O&M contract and LTSA including re-signing, extension and change contract
To check and review annual budget and monthly cash flow (income and expenditure) for O&M, construction, and implementation of unplanned repair including remodeling, replacement and improvement
To check and review O&M organization and system change
To check and advise existing plant operation method and review O&M manuals and procedures
To check and review the education and training plan regarding O&M and construction
To check and review the basic and root design of construction projects including budget, plant specification and schedule
To attend the executive meeting of SCL, SBPCL, SMPCL, SMIIPCL, and other company for the Projects
Other necessary works for SMIIPCL
[Manager of Summit Meghnaghat II Power Co. Ltd.]
To support Deputy Chief Executive Officer and the team at SMIIPCL
To analyze and evaluate troubles and unplanned outages
To check and review progress on construction plans and O&M plans
To support for technical issues regarding CCGT
Other necessary works for SMIIPCL