EXHIBIT 10.9
OPTION T0 PURCHASE AND
RIGHT OF FIRST REFUSAL
THIS OPTION TO PURCHASE AND RIGHT OF FIRST REFUSAL is made and entered
into as of the 14th day of January, 2004. by and between XXXXXX XXXX XXXXXXX and
XXXXXXX XXXXXXX, husband and wife, referred to herein as "Lessor" and
INTERNATIONAL ISOTOPES, INC., a Texas corporation, referred to herein as
"Lessee".
RECITALS:
A. Lessor and Lessee are simultaneous with the execution of this
Agreement entering into a Lease Agreement (the "Lease Agreement") wherein Lessor
is leasing to Lessee the following described premises and all improvements
located thereon situate in the County of Bonneville, State of Idaho, to-wit (the
"Leased Premises"):
Xxx 0, Xxxxx 0, Xx. Xxxx Xxxxxxxxxx Xxxx, Division No. 1,
according to the recorded plat thereof.
SUBJECT TO THE FOLLOWING:
1. Declaration of Covenants, Conditions and Restrictions for
St. Xxxx Industrial Park, recorded in the records of
Bonneville County, Idaho, on October 22,1996, as
Instrument No. 930434.
2. All existing easements or claims of easements, patent
reservations, rights-of-way, protective covenants, zoning
ordinances, and applicable building codes, laws and
regulations, encroachments, overlaps, boundary line
disputes and other matters which would be disclosed by an
accurate survey or inspection of the premises.
X. Xxxxxx has agreed to grant to Lessee the right of first refusal
and option to purchase set forth herein.
AGREEMENTS:
NOW, THEREFORE, in consideration of the lease of the Leased Premises by
Lessee, the mutual covenants set forth herein and for other good and valuable
consideration, the parties agree as follows:
1. The right of first refusal and option to purchase granted
to Lessee herein shall be in effect only until the expiration of the
term of the Lease Agreement. The right of first refusal and option to
purchase set forth herein may not be exercised by Lessee if:
(a) Lessee or a sublessee of Lessee authorized by Lessor
is not in possession of the Leased Premises under the Lease
Agreement.
(b) Lessee is in default of any of the terms of the
Lease Agreement.
2. Except as otherwise provided for herein, in the event
Lessor desires to sell, transfer or convey Lessor's interest in the
Leased Premises, or any portion thereof, Lessor shall have the right to
sell, transfer or convey Lessor's interest in the Leased Premises, or
any portion thereof, only after complying with the following
requirements:
(a) Lessor shall forward to Lessee by certified mail,
return receipt requested, at 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxx 00000, or to such other address as Lessee shall have
provided to Lessor in writing, written notice containing all of
the terms and conditions on which Lessor desires to give, sell,
transfer or convey the Leased Premises, or any portion thereof
(the "Lessor's Notice of Transfer"). Said notice shall be deemed
effective upon the date of its mailing.
(b) Upon mailing of Lessor's Notice of Transfer, Lessee
shall then have the option to purchase the interest of Lessor in
the Leased Premises, or such portion thereof, as is referred to
in Lessor's Notice of Transfer upon the same terms as set forth
in such notice.
(c) Lessee may exercise its option to purchase by
mailing its written notice of exercise of option to Lessor
within fifteen (15) days from the date of mailing of the notice
to Lessee. Such notice of exercise of option shall be forwarded
to Lessor by certified mail, return receipt requested, at Xxxx
Xxxxxx Xxx 00, Xxxxxxx, Xxxxx 00000, or to such other address as
may be designated in writing to Lessee by Lessor. In the event
Lessee exercises such option, then Lessee and Lessor must,
within fifteen (15) days after the exercise of such option,
enter into a binding written agreement for the transfer and/or
the purchase of the Leased Premises upon the same terms and
conditions set forth in Lessor's Notice of Transfer. Not
withstanding anything contained in the Lease Agreement to the
contrary, if Lessee exercises such option to purchase, then the
term of the Lease Agreement shall expire on the day of closing
of the sales transaction.
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(d) In the event that Lessee does not desire to exercise
Lessee's option to purchase, Lessee shall, within fifteen (15)
days of the mailing of Lessor's Notice of Transfer, mail by
certified mail, return receipt requested, to Xxxx Xxxxxx Xxx 00,
Xxxxxxx, Xxxxx 00000, or such other address as Lessor shall have
provided to Lessee in writing, Lessee's notice to Lessor that
Lessee will not exercise said option. If Lessee fails to provide
such notice that Lessee will not exercise such option, and
Lessee does not exercise the option as provided in paragraph
2(c), then Lessor is hereby empowered to record Lessor's
affidavit to the effect that Lessee did not timely exercise said
option, which affidavit shall be conclusive as against Lessee of
Lessee's failure to exercise such option. If Lessee fails to
exercise such option in the manner provided in paragraph 2(c)
above, then Lessor shall have the right to forthwith transfer or
convey the Leased Premises or any portion thereof free and clear
of this right of first refusal to whomsoever Lessor desires,
provided that: (i) such sale, transfer or conveyance is
consummated within one hundred eighty (180) days after the
expiration of the time for Lessee to accept the offer, (ii) such
sale, transfer or conveyance is made in accordance with the
terms and conditions set out in Lessor's Notice of Transfer, and
(iii) the purchaser shall receive the Leased Premises subject to
any remaining rights and obligations Lessor and Lessee may have
under the Lease Agreement. If Lessee fails to exercise such
option in the manner provided in paragraph 2(c) above, then in
such event Lessor shall have the right to forthwith transfer or
convey the Leased Premises or any portion thereof free and clear
of the option to purchase hereinafter set forth.
(e) Notwithstanding anything to the contrary herein, it
is specifically understood and agreed that this right of first
refusal shall not apply to any transfer, either with or without
consideration, or whether by will, agreement, operation of law
or otherwise, by Lessor to Immediate Family. "Immediate Family"
means for purposes of this paragraph, Xxxxxx Xxxx Xxxxxxx and
Xxxxxxx Xxxxxxx, husband and wife, the lineal descendants of
Xxxxxx Xxxx Xxxxxxx and Xxxxxxx Xxxxxxx, the spouses of any such
lineal descendants and the trustees of any trusts in which the
beneficiaries of such trusts are any of the foregoing mentioned
parties. Any such transfer to Immediate Family shall be subject,
however, to the right of first refusal granted by this
Agreement, and the Immediate Family shall be bound to comply
with this right of first refusal and any subsequent transfer of
the Leased Premises or any portion thereof.
4. Subject to the termination of the option granted herein
under the conditions set forth in paragraph 2(d) above, Lessor grants
unto Lessee the exclusive right and option, if Lessee shall not be in
default of any of the terms of the Lease Agreement, to purchase the
Leased Premises and any additions and improvements thereon, together
with any improvements that may have been made during the term of the
Lease Agreement, upon and subject to the following terms and
conditions:
(a) Said option shall be exercisable only prior to the
expiration of the term of the Lease Agreement.
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(b) To exercise this option, Lessee shall deliver to
Lessor written notification of the date upon which Lessor is
prepared to purchase and close the transaction upon the terms
provided herein; provided, however, that Lessor shall be given
at least thirty (30) days notice of the date of such closing.
(c) Within sixty (60) days after giving written notice
of Lessee's intent to exercise the option to purchase, Lessee
shall purchase the Leased Premises and the closing to complete
such purchase shall be completed within said sixty (60) day
period.
(d) If Lessee properly exercises the option to purchase
set forth herein, the Leased Premises shall be sold to Lessee by
Lessor and Lessee shall purchase the Leased Premises pursuant to
the following terms and provisions:
(i) For purposes of this subparagraph the term
"CPI" shall refer to the CPI published by the Bureau of
Labor Statistics of the United States Department of Labor
for All Urban Consumers, U.S. City Average (All Cities)
for all items with the index base being the current
official base of 1982-1984 = 100. If Lessee properly
exercises the option to purchase prior to the expiration
of the initial five (5) year term of the Lease Agreement,
the purchase price shall be computed as follows: a
fraction shall be created, the denominator of which is the
CPI for December, 2003, and the numerator of which shall
be the CPI on the last day of the month prior to the date
of closing. This fraction then shall be multiplied by
$480,000.00. The purchase price shall be the higher of:
(i) $480,000.00 or (ii) the amount which is arrived at my
multiplying $480,000.00 by the above referred to fraction.
(ii) If Lessee exercises the option to purchase set
forth herein after the expiration of the initial five (5)
year term of the Lease Agreement, the purchase price of
the Leased Premises shall be the fair market value of the
Leased Premises at the time Lessee exercises the option
to purchase. If Lessee and Lessor cannot agree upon the
fair market value of the Leased Premises, the Leased
Premises shall be appraised. If Lessee and Lessor cannot
agree on an appraiser, they shall each appoint an
appraiser. If the two (2) appraisers cannot agree upon the
fair market value of the Leased Premises, they shall
appoint a third appraiser, and the decision of a majority
of the three (3) appraisers shall be binding on all
parties. The cost of the appraisal shall be shared equally
by the Lessor and the Lessee.
(iii) At closing, Lessor shall execute a Grant Deed
and deliver such Grant Deed to Lessee for recording which
such Grant Deed shall transfer title to the Leased
Premises to Lessee. The Leased Premises shall be
transferred appeal, which the offended party may incur in
enforcing this Agreement or in pursuing any remedy allowed
by law for breach hereof, whether such is incurred by the
filing of suit or otherwise.
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IN WITNESS WHEREOF, the parties have hereunto set their hands the day
and year first above written.
LESSOR:
/S/ Xxxxxx Xxxx Xxxxxxx
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Xxxxxx Xxxx Xxxxxxx
/S/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
LESSEE:
INTERNATIONAL ISOTOPES, INC.
By: /S/ Xxxxx X. Xxxxxx
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Its: President & CEO
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