MEMORANDUM OF UNDERSTANDING
EXHIBIT
10.22
THIS
MEMORANDUM OF UNDERSTANDING
(this
“MOU”) is entered into this 18th day of September, 2003 by and between MEDI-HUT
INT’L (MFG) CO., LTD., a corporation organized and existing under the laws of
the Republic of Korea (“Korea”) with its principal offices at 4-1 Godeung-Ri,
Sojung-Myun, Yeonki-Kun, Chunchungnam-Do, Korea (“MHI’) and MEDI-HUT CO., INC.,
a corporation organized and existing under the laws of the State of Nevada,
United States of America, with its principal offices at 0000 Xxxxxx Xxxxxxx,
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000, Xxxxxx Xxxxxx of America (“MHUT”; together with
MHI, collectively, the “Parties”).
WITNESSETH:
WHEREAS,
MHI
manufactured certain “Elite Safety Syringe” products, as more particularly
described in the invoices attached hereto as Exhibit A (the “Products”), and
sold them to MHUT for the total purchase price of DS$190,115 (the “Purchase
Price”);
WHEREAS,
due to
certain manufacturing and other problems associated with the Products the
Parties have determined that the quality of the Products is not sufficient
for
sale .in the United States market; and
WHEREAS,
in view
of such problems with the Products MHI has agreed to take the Products back
from
MHUT that are currently located at MHUT’s warehouse (the “Product Inventory”),
refund the Purchase Price to MHUT, reimburse MHUT for certain expenses incurred
by MHUT in connection with the purchase of the Products from MHI and undertake
to do certain things with respect to such returned Products.
NOW,
THEREFORE,
in
consideration of the foregoing premises and the mutual covenants and promises
set forth herein below, the Parties, intending to be legally bound hereby,
agree
as follows:
|
Article
1.
|
Return
of the Product Inventory; Refund of the Purchase Price and Reimbursement
of Certain Expenses
|
| 1.1 |
The
Product Inventory being returned to MHI consists of 1,564,000 pieces
that
are described in the invoices attached hereto as Exhibit A. MHUT
will
return the Product Inventory to MHI, as set forth
below:
|
| · |
Consignee:
Medi-Hut
Int’l.(Mfg.) Co., Inc.
|
2nd
Floor, Oyang Building, 00-0 Xxxxxxxxxx-Xxxx X-Xx,
Xxxxx-Xx,
Xxxxx, Xxxxx
| · |
Port
of discharge: Busan,
Korea
|
| · |
Place
of delivery: Medi-Hut
Int’l (Mfg.) Co, Inc.
|
4-1
Godeung-Ri, Sojung-Myun, Yeonki-Kun,
Chunchungnam-Do,
Korea
| · |
Shipment
will be arranged on a container basis.
|
| · |
Freight
will be prepaid.
|
| · |
After
shipment, a copy of shipping documents will be sent to the consignee
by
facsimile.
|
| 1.2 |
Upon
return of the Product Inventory as set forth in Section 1.1 above
MHI
agrees to pay the following amounts to
MHUT:
|
|
Refund
of the Purchase Price:
|
US
$190,115
|
|||
|
Freight
and other expenses incurred by MHUT for the purchase of the Products:
|
US
$21,980
|
|||
|
Freight
and other expenses incurred by MHUT for the return of the Products:
|
US
$8,760
|
|||
|
Total:
|
US
$220,855
|
|||
| 1.3 |
The
amounts set forth in Section 1.2 above shall be paid to MHUT
by MHI as
follows:
|
| 1.3.1 |
To
the extent that MHI resells any portion of the returned Product Inventory
in accordance with Article 2 below, any proceeds from such resale
of the
Product Inventory, after deducting any reasonable out-of-pocket expenses
incurred by MHI in connection with such resale, shall immediately
be paid
to MHUT. MHI shall provide MHUT with appropriate documentation supporting
any such out-of pocket expenses.
|
| 1.3.2 |
Any
remaining balance of the amounts set forth in Section 1.2 above (the
“Balance”) shall be paid by MHI by granting to MHUT a 5% discount off the
purchase price (which purchase price shall be determined pursuant
to a
separate agreement between MHI and MHUT) for each future shipment
of
“Elite Safety Syringe” products until the aggregate amount of such
discount equals the Balance; provided, however, that if MHI fails
to
become capable of manufacturing “Elite Safety Syringe” products in
compliance with MHUT’s requirements therefore (including, without
limitation, compliance with any applicable good manufacturing practices)
by December 31, 2003 and if such failure is due to a cause attributable
to
MHI, the Balance shall be paid to MHUT in cash upon reasonable notice
by
MHUT.
|
Article
2. Undertakings
Relating to the Returned Product Inventory
| 2.1 |
It
is expressly acknowledged and agreed by the Parties that the Product
Inventory is being returned to MHI for destruction unless such Product
Inventory is re-sterilized pursuant to a process that is specifically
approved by MHUT in advance in
writing.
|
| 2.2 |
MHI
may not resell any portion of the Product Inventory unless and until
(i)
such Product Inventory has been re-sterilized pursuant to a process
that
is approved by MHUT as set forth in Section 2.1 above and (ii) MHI
obtains
from MHUT final approval with respect to such re-sterilized Product
Inventory.
|
-2-
Article
3. Governing
Law and Dispute Resolution
| 3.1 |
This
MOU shall be governed by and construed and enforced in accordance
with the
laws of Korea without giving effect to the conflict of laws principles
thereof.
|
| 3.2 |
All
disputes, disagreements or questions which might arise between the
Parties
out of or in connection with this MOU, which cannot be amicably settled
by
the Parties, shall be submitted to the International Chamber of Commerce
(“ICC”) for arbitration in accordance with the ICC Rules of Conciliation
and Arbitration in effect at the time of arbitration. Arbitration
shall
take place in Seoul, Korea in the English language before a panel
of three
arbitrators. The award or decision 0 f t he arbitrators shall b e
final
and binding upon the Parties and shall be enforceable in any court
having
jurisdiction over the party against whom the award or decision was
issued.
Nothing set forth herein shall prevent a party from seeking and obtaining
preliminary injunctive or other equitable relief from any court of
competent jurisdiction pending the final award or decision of the
arbitrator.
|
Article
4. Notices
Any
notices or other communications required or permitted hereunder shall be in
writing and shall be deemed sufficiently given if personally delivered, sent
by
registered or certified mail, return receipt requested, postage prepaid, or
transmitted by facsimile, in each case addressed as follows or to such other
address as any party hereto shall have notified the other party in accordance
with the provisions of this Article:
If
to
MHI:
Medi-Hut
Int’l (Mfg.) Co., Ltd.
4-1
Godeung-Ri, Sojung-Myun
Yeonki-Kun
Chunchungnam-Do,
Korea
Attention:
Representative Director
Facsimile:
82-41-862-5700
If
to
MHUT:
Medi-Hut
Co., Inc.
0000
Xxxxxx Xxxxxxx
Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Xxxxxx
Xxxxxx of America
Attention:
President
Facsimile:
0-000-000-0000
-3-
With
a
copy to:
Kim,
Chang & Xxx
000
Xxxxxx-Xxxx,Xxxxxxx-Xx
Xxxxx,
Xxxxx
Attention:
Moon Han, Esq.
Facsimile:
00-0-000-0000 .
Article
5. Miscellaneous
| 5.1 |
If,
at any time subsequent to the date hereof, any provision of this
MOU shall
be held by any court or arbitral tribunal of competent jurisdiction
to he
illegal, invalid or unenforceable, such provision shall be of no
force or
effect, but the illegality, invalidity or unenforceability of such
provision shall have no effect upon and shall not impair the validity
or
enforceability of any other provision of this MOU. The Parties shall
be
obliged to replace such illegal, invalid or unenforceable provision
by a
new provision having similar
effect.
|
| 5.2 |
This
MOU may be amended, supplemented or changed, and any provision hereof
may
be waived, only by written instrument making specific reference to
this
MOU or to such provision to be waived, signed by the party against
whom
enforcement of such amendment, supplement, modification or waiver
is
sought.
|
| 5.3 |
This
MOU shall be binding upon and shall inure to the benefit of the Parties
and their respective successors and permitted assigns; provided,
however,
that neither this MOU nor any rights or obligations hereunder maybe
assigned, transferred or delegated by any party without the prior
written
consent of the other party.
|
| 5.4 |
This
MOU embodies the entire agreement of the Parties with respect to
the
subject matter hereof and supersedes and cancels any and all prior
agreements and understandings, oral or written, which may exist in
relation thereto.
|
| 5.5 |
This
MOU may be executed in any number of counterparts, each of which
shall be
deemed an original, but all of which, taken together, shall constitute
one
and the same instrument.
|
| 5.6 |
This
MOU is executed in the English language, which shall be controlling
in all
respects between the Parties. No translation hereof shall be of any
force
or effect in the interpretation of this
MOU.
|
[Signatures
on the following page]
-4-
IN
WITNESS WHEREOF,
the
Parties have caused this MOU to be duly executed on the date first written
above.
| MEDI-HUT INT’L (MFG) CO., LTD. | MEDI-HUT CO., INC. | ||
| /s/ Young-Xxx Xxxx | /s/ Xxxxx X. XxXxxxx | ||
|
|
|
||
| Name:
Young-Xxx Xxxx Title: President |
Name:
Xxxxx X. XxXxxxx Title: Chief Financial Officer |
-5-
EXHIBIT
A
Copies
of
the Invoices Describing the Products
-6-
|
COMMERCIAL
INVOICE
|
||||||
|
Seller:
MEDI-HUT
INTL (MFG) CO INC
0XX
XXXXX, XXXXX XXXX.
XX.
00-0 XXXXXXXXX-XXXX 0-XX
XXXXX-XX
XXXXX XXXXX
|
Invoice
No. and date
MD03-104 JAN.
29, 2003
|
|||||
|
L/C
No. and date
1254639NJY JAN.
06, 2003
|
||||||
|
Consignee:
TO
THE ORDER OF PNC BANK N.A.
|
Buyer
(if other than consignee)
MEDI-HUT
CO., INC.
0000
XXXXXX XXXX.
XXXX
XXXX., XX 00000
|
|||||
|
From
BUSAN,
KOREA
|
TO
NEW
YORK, NY USA
|
Other
Reference
|
||||
|
Vessel/flight
HJ
BARCELONA 069E
|
Departure
date:
JAN.
29, 2003
|
Terms
of delivery and payment
FOB
BUSAN
|
||||
|
Shipping
Marks No.&
Kind of pkgs:
|
Goods
description
|
Quantity
|
Unit
price
/PER
BOX(100 PCS)
|
Amount
|
||
|
MEDI-HUT
CO., INC.
|
3CC
SAFETY SYRINGE ELITE BRAND 690 CASES 8 BOXES
|
|||||
|
0000
XXXXXX XXXXXXX
|
PER
PROFORMA INV. 1226 DATED DEC. 26, 2002 FREE ON BOARD
KOREA
|
|||||
|
XXXX
XXXXXXXX, XX 00000
|
||||||
|
U.S.A.
|
3CC
25G X 5/8:
|
356,000PCS
|
U$12.10
|
U$43,076.00
|
||
|
MADE
IN KOREA
|
3CC
25G X 1”
|
28,000PCS
|
U$12.10
|
U$3,388.00
|
||
|
LOT
NO:
|
3CC
25G X 1 ½”
|
48,000PCS
|
U$12.10
|
U$5,808.00
|
||
|
EXPIRATION
DATE:
|
3CC
23G X 1”
|
120,000PCS
|
U$12.10
|
U$14,520.00
|
||
|
UPC
NO:
|
TOTAL
|
552,000PCS
|
U$66,792.00
|
|||
|
PRODUCE
CODE NO.
|
||||||
*MEDI-HUT
INTL. (Mfg) CO., INC. REGISTRATION NUMBER 9710558
*MEDICAL
DEVICE LISTING NUMBER (ELITE SAFETY SYRINGE): C014623
*FDA
REGISTRATION NUMBER (MEDI-HUT CO., INC.): 2246574
MEDI-HUT
INT’L (Mfg.)
Co., LTD.
/s/
X.X.
Xxxx
X.X.
Xxxx, Managing Director
-7-
|
COMMERCIAL
INVOICE
|
||||||
|
Seller:
MEDI-HUT
INTL (MFG) CO INC
0XX
XXXXX, XXXXX XXXX.
XX.
00-0 XXXXXXXXX-XXXX 0-XX
XXXXX-XX
XXXXX XXXXX
|
Invoice
No. and date
MD02-148B NOV.
1, 2002
|
|||||
|
L/C
No. and date
1252000NJY SEP.
13, 2002
|
||||||
|
Consignee:
TO
THE ORDER OF PNC BANK N.A.
|
Buyer
(if other than consignee)
MEDI-HUT
CO., INC.
0000
XXXXXXXXXX XXXXXX
XXXXXXXX,
XX 00000
|
|||||
|
From
BUSAN/SEOUL,
KOREA
|
TO
NEW
YORK
|
Other
Reference
|
||||
|
Vessel/flight
PENANG
SENATOR 0024E
|
Departure
date:
NOV.
01, 2002
|
Terms
of delivery and payment
FOB
BUSAN
|
||||
|
Shipping
Marks No. &
Kind of pkgs:
|
Goods
description
|
Quantity
|
Unit
price
/1000
PCS
|
Amount
|
||
|
MEDI-HUT
CO., INC.
|
ELITE
SAFETY SYRINGES
|
|||||
|
0000
XXXXXXXXXX XXX
|
AS
PER PROFORMA P/I NO. 0911 DATED SEPTEMBER 10, 2002
|
|||||
|
XXXXXXXX,
XX 00000
|
FREE
ON BOARD SEOUL, KOREA
|
|||||
|
U.S.A.
|
3CC
W/O NEEDLE
|
48,000PCS
|
U$121.38
|
U$5,826,240
|
||
|
MADE
IN KOREA
|
3CC
20G X 1”
|
24,000PCS
|
U$121.38
|
U$2,913,120
|
||
|
LOT
NO:
|
3CC
20G X 1 ½”
|
12,000PCS
|
U$121.38
|
U$1,456,560
|
||
|
EXPIRATION
DATE:
|
3CC
21G X 1”
|
24,000PCS
|
U$121.38
|
U$2,913,120
|
||
|
UPC
NO:
|
3CC
21G X 1 ½”
|
552,000PCS
|
U$121.38
|
U$1,456,560
|
||
|
PRODUCE
CODE NO.
|
3CC
22G X 1 ½”
|
24,000PCS
|
U$121.38
|
U$2,913,120
|
||
|
3CC
23G X 1”
|
42,400PCS
|
U$121.38
|
U$5,146,512
|
|||
|
3CC
25G X 5/8”
|
39,200PCS
|
U$121.38
|
U$4,758,096
|
|||
|
3CC
25G X 1:
|
48,000PCS
|
U$121.38
|
U$5,826,240
|
|||
|
TOTAL
|
273,600PCS
|
U$33,209,568
|
||||
*MEDI-HUT
INTL. (Mfg) CO., INC. REGISTRATION NUMBER 9710558
*MEDICAL
DEVICE LISTING NUMBER (ELITE SAFETY SYRINGE): C014623
*FDA
REGISTRATION NUMBER (MEDI-HUT CO., INC.): 2246574
MEDI-HUT
INT’L (Mfg.)
Co., LTD.
/s/
X.X.
Xxxx
X.X.
Xxxx, Managing Director
-8-
|
COMMERCIAL
INVOICE
|
||||||
|
Seller:
MEDI-HUT
INTL (MFG) CO INC
0XX
XXXXX, XXXXX XXXX.
XX.
00-0 XXXXXXXXX-XXXX 0-XX
XXXXX-XX
XXXXX XXXXX
|
Invoice
No. and date
MD02-148 OCT.
06, 2002
|
|||||
|
L/C
No. and date
1252000NJY SEP.
13, 2002
|
||||||
|
Consignee:
TO
THE ORDER OF PNC BANK N.A.
|
Buyer
(if other than consignee)
MEDI-HUT
CO., INC.
0000
XXXXXXXXXX XXXXXX
XXXXXXXX,
XX 00000
|
|||||
|
Departure
date:
OCT.
06, 2002
|
Other
Reference
|
|||||
|
Vessel/flight
MING
AMERICA 0065E
|
From
BUSAN/SEOUL,
KOREA
|
|||||
|
TO
NEW
YORK
|
Terms
of delivery and payment
FOB
BUSAN
|
|||||
|
Shipping
Marks No. &
Kind of pkgs:
|
Goods
description
|
Quantity
|
Unit
price
|
Amount
|
||
|
MEDI-HUT
CO., INC.
|
ELITE
SAFETY SYRINGE
|
|||||
|
0000
XXXXXXXXXX XXX
|
AS
PER PROFORMA P/I NO. 0911 DATED SEPTEMBER 10, 2002
|
|||||
|
XXXXXXXX,
XX 00000
|
FREE
ON BOARD SEOUL, KOREA
|
|||||
|
U.S.A.
|
3CC
25g x 5/8”
|
220,000PCS
|
@U$121.38/1,000
PCS
|
US$26,703,600
|
||
|
MADE
IN KOREA
|
3CC
23G X 1”
|
53,600PCS
|
U$121.38/1,000
PCS
|
$6,505,968
|
||
|
LOT
NO:
|
||||||
|
EXPIRATION
DATE:
|
TOTAL
|
273,600PCS
|
US$33,209,568
|
|||
|
UPC
NO:
|
||||||
|
PRODUCE
CODE NO.
|
||||||
*MEDI-HUT
INTL. (Mfg) CO., INC. REGISTRATION NUMBER 9710558
*MEDICAL
DEVICE LISTING NUMBER (ELITE SAFETY SYRINGE): C014623
*FDA
REGISTRATION NUMBER (MEDI-HUT CO., INC.): 2246574
MEDI-HUT
INT’L (Mfg.)
Co., LTD.
/s/
X.X.
Xxxx
X.X.
Xxxx, Managing Director
-9-
|
COMMERCIAL
INVOICE
|
||||
|
Seller:
MEDI-HUT
INT’L (MFG) CO., INC.
0XX
XXXXX XXXXX XXXX.
XX.
00-0 XXXXXXXXX-XXXX 0-XX
XXXXX
XX XXXXX XXXXX
|
Invoice
No. and date:
MD0-2-148A OCT.
16, 2002
L/C
N. and date:
1252000NJY SEPT.
13, 2002
|
|||
|
Consignee:
TO
ORDER OF PNC BANK N.A
|
Buyer:
MEDI-HUT
CO., INC.
0000
XXXXXXXXXX XXXXXX
XXXXXXXX,
XX 00000
|
|||
|
From: BUSAN/SEOUL,
KOREA |
To: NEW
YORK |
Other
reference:
|
||
|
Vessel/flight
|
Departure
date:
|
Terms
of delivery and payment:
|
||
|
MISC
XXXXXXX 003A
|
OCT.
16, 2002
|
FOB
BUSAN
|
||
|
Shipping
marks No. &
King of Packages
|
Goods
description
|
Quantity
|
Unit
price
/1000PCS
|
Amount
|
|
MEDI-HUT
CO., INC.
|
ELITE
SAFETY SYRINGE
|
|||
|
0000
XXXXXXXXXX XXX.
|
AS
PER PROFORMA P/1 NO. 0911 DATED SEPTEMBER 10, 2002
|
|||
|
XXXXXXXX,
XX 00000
|
FREE
ON BOARD SEOUL, KOREA
|
|||
|
U.S.A.
|
3CC
25GX 1"
|
48,000PCS
|
U$121.38
|
U$5,826.24
|
|
MADE
IN KOREA
|
3CC
24GX 1 1/2"
|
48,000PCS
|
U$121.38
|
U$5,826.24
|
|
LOT
NO.:
|
3CC
22GX 1"
|
120,000PCS
|
U$121.38
|
U$14,565.60
|
|
EXPIRATION
DATE:
|
3CC
21GX 1 1/2"
|
12,000PCS
|
U$121.38
|
U$1,456.56
|
|
UPC
NO.:
|
3CC
23GX 1"
|
24,000PCS
|
U$121.38
|
U$2,913.12
|
|
PRODUCT
CODE NO.:
|
3CC
22G X 1 1/2"
|
24,000PCS
|
U$121.38
|
U$2,913.12
|
|
3CC
20G X 1 1/2"
|
12,000PCS
|
U$121.38
|
U$1,456.56
|
|
|
3CC
25G X 5/8"
|
180,800PCS
|
U$121.38
|
U$21,945.50
|
|
|
TOTAL
|
468,800PCS
|
U$56,902.944
|
||
*MEDI-HUT
INTL. (Mfg) CO., INC. REGISTRATION NUMBER 9710558
*MEDICAL
DEVICE LISTING NUMBER (ELITE SAFETY SYRINGE): C014623
*FDA
REGISTRATION NUMBER (MEDI-HUT CO., INC.): 2246574
MEDI-HUT
INT’L (Mfg.)
Co., LTD.
/s/
X.X.
Xxxx
X.X.
Xxxx, Managing Director
-10-
