Exhibit 10.9


 


CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED FOR THE REDACTED PORTIONS OF THIS AGREEMENT.  THE REDACTIONS ARE INDICATED WITH THREE
ASTERISKS (“***”).  A COMPLETE VERSION OF
THIS AGREEMENT HAS BEEN FILED WITH THE 
U.S. SECURITIES AND EXCHANGE COMMISSION.


 


DISTRIBUTORSHIP AND SALES AGREEMENT


 


THIS AGREEMENT is
made on  September 1, 2006,
by and between BLUE PEARL MINING LTD., a corporation existing under the laws of
the Province of Ontario (hereinafter referred to as “Company”) and
SOJITZ CORPORATION, a Japanese corporation (hereinafter referred to as “Distributor”).


 


WHEREAS, Company
has entered into a Merger Agreement dated as of September 1, 2006 among
Company, Blue Pearl USA Ltd., Thompson Creek Metals Company (“TCMC”),
and F. Steven Mooney, pursuant to which the Company will acquire TCMC and its
subsidiaries, including the Thompson Creek mine (the “Thompson Creek Mine”
located near Challis, in Custer County, Idaho (the “Acquisition”); and


 


WHEREAS, Company
and TCMC have requested that Distributor waive any preemptive right it may have
with respect to the Acquisition, and Distributor has agreed to waive any such
preemptive right related to the Acquisition (but not as to any other
transaction), in connection with and conditioned upon Company and Distributor
entering into this Agreement; and


 


WHEREAS, TCMC and
its subsidiaries produce a variety of molybdenum products, and Company desires
to appoint Distributor as the exclusive distributor in the Territory (as
defined herein) of molybdic oxide, ferromolybdenum and molybdic oxide
briquettes produced from the Thompson Creek Mine and TCMC’s molybdenum
disulfide roasting facility (the “Langeloth Roaster”) located in
Langeloth, Pennsylvania (hereinafter referred to as “Product”) and to
supply Product to Distributor, on the terms and conditions of this Agreement;


 


NOW THEREFORE, in
consideration of the premises and the mutual covenants of the parties set forth
herein and the waiver described above, the parties agree as follows:


 


1.                          APPOINTMENT;
EXCLUSIVITY


 


Company hereby
appoints Distributor as the exclusive distributor of the Product in the
Territory and agrees to supply Distributor with the quantity of Product elected
by Distributor as provided in this Agreement. Company shall not directly or
indirectly enter into any other agreement with another distributor or reseller
to distribute Product in the Territory during the Term, except as permitted
under Section 3(b). Distributor shall not distribute or resell the Product
supplied by Company under this Agreement outside of the Territory during the
Term.


 


2.                          TERM


 


The term of the distributorship (“Term”) shall be 10 years,
commencing on January 1, 2007 and expiring on December 31,
2016. Both parties shall review the relationship in 2016 prior to December 31
to determine if they elect to extend the distributorship, but neither party
shall be obligated to extend.


 


3.                          DISTRIBUTOR EFFORTS


 


(a)       Distributor agrees to devote Distributor’s
commercially reasonable efforts to the business of selling the Product of the
Company in the Territory, but such efforts shall not


 

















 


obligate Distributor to
take Product in excess of the amount it elects in its sole discretion under Section 5.
Company acknowledges that Distributor obtains molybdenum products from other
sources and markets such products in the Territory. Nothing in this Agreement
shall restrict or prohibit Distributor from marketing such other products in or
out of the Territory under existing and future agreements, whether or not
competitive with sales of the Company’s Product.


 


(b)       If Distributor fails to purchase at least
five percent (5%) of the Product produced each month for any period of six
consecutive months during the Term, Seller may sell Product in the Territory
through another distributor or reseller until the first day of the month after
the month in which Distributor takes delivery of at least five percent (5%) of
the Product produced.


 


4.                          TERRITORY


 


The
distributorship created herein shall be for selling Product in any country in
Asia (including without limitation Turkey, the Middle East, India, China,
Korea, and Japan) and Oceania (including without limitation Australia and New
Zealand).


 


5.                          QUANTITY


 


Company shall
supply to Distributor, and Distributor shall have the option to purchase, up to
*** of all Product produced during the Term, in quantities and types of Product
as elected by Distributor in its sole discretion. Distributor shall give
advance notice to Company of the quantity, if any, of Product it elects to
purchase for each month during the Term. Such notice shall be delivered on or
before the first day of the month prior to the month in which shipment of the
Product is to occur, except that elections for Product shipped in January shall
be made on or before December 15th.


 


6.                          SPECIFICATIONS


 


(a)       The Product delivered pursuant to the
Agreement shall conform to the following specifications (“Specifications”):


 


Mo:   57.0   %
Minimum


Cu:    0.30   %
Maximum


P:       0.05   %
Maximum


Pb:     0.05   %
Maximum


S:       0.10   %
Maximum


 


(b)       Company shall be responsible for any
short delivery, any defect in title or encumbrance on the Product, and failure
of Product to conform with the Specifications.


 


(c)       Distributor shall notify Company of any
claim that the Product fails to conform with the Specifications within one year
following delivery of the Product, or such claim shall be waived. Company shall
be permitted to sample any material that is alleged to be non-conforming to the
Specifications. In the event that the analyses of Company and Distributor
disagree, a mutually acceptable independent testing authority shall be retained
to test the material alleged to be non-conforming to the Specifications. The
analysis of such authority shall be


 


2

















 


binding on the parties
hereto and the cost of such testing shall be borne by the party whose analysis
is furthest from that of the independent testing authority.


 


(d)       If it is finally determined that Product
shipped to Distributor does not conform to the Specifications, then; (i) Distributor
shall have no obligation to purchase such non-conforming Product, and (ii) Company
shall be responsible for the costs of storage and shipping of such
non-conforming Product for alternative disposition.


 


(e)       Distributor reserves all rights and
remedies under this agreement and applicable law for any short delivery, any
defect in title or encumbrance on the Product, and failure of Product to
conform with the Specifications, including without limitation the right of
cover under the Uniform Commercial Code, Nothing in this Agreement shall limit
any special, indirect, incidental or consequential damages arising from any of
the foregoing breaches.


 


(f)        Other than as provided in this Section 6,
COMPANY MAKES NO AND EXPRESSLY DISCLAIMS ALL
OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
IN FACT OR BY LAW, WHETHER OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR
PURPOSE OR USE OR OTHERWISE, CONCERNING THE PRODUCT TO BE DELIVERED UNDER THIS
AGREEMENT.


 


7.                          PRICE


 


(a)       The price paid by Distributor for Product
in the form of drummed molybdenum oxide powder shall be the mean of the Dealer
Oxide high and low quotations for technical grade molybdic oxide as published
weekly in Metals Week and averaged for the month prior to the contractual month
of shipment of the Product.


 


(b)       If Distributor elects to take delivery of
Product in the form of molybdenum oxide in cans or in the form of briquettes or
ferromolybdenum, then prior to shipment of these Products, Distributor and
Company shall agree on the premium, for the applicable Product.


 


8.                          DELIVERY


 


The delivery of
the Product shall be made CIF main ports of import in Territory (to the ports
specified by Distributor for each shipment) in accordance with INCOTERMS 2000.
Company shall deliver Product to Distributor monthly in the quantities elected
by Distributor under Section 5. Product shall be shipped, at Distributor’s
option, in drums, cans, or bags (super sacks) on pallets, suitable and safe for
ocean transportation in accordance with internationally recognized safety
standards for container cargo. Unless otherwise agreed by the party, each
monthly shipment shall consist of one or more Full Container Loads (“FCL”)
of Product, each FCL containing approximately 18 metric tons of material
consisting of approximately 25,000 pounds of molybdenum contained. On or before
September 30 of each year, Company shall notify Distributor of the
proposed schedule for delivery of Products to Distributor during the next year,
based on Company’s mine plan. The Company and the Distributor shall arrange a
mutually acceptable delivery schedule for the Product; provided that Company
shall ship Product in approximately equal monthly quantities. As soon as
reasonably possible after each shipment of


 


3

















 


Product leaves the port
of loading, Company shall fax and mail to Distributor a weight and assay
certificate, invoice and a full set of clean on board bills of lading.


 


9.                          PAYMENT


 


Distributor shall
pay the invoice amount of each shipment of Product in US Dollars to the account
indicated on the Company’s invoice, not more than thirty (30) days after the
delivery to Distributor of the Bill of Lading for such shipment. Company
acknowledges and agrees that payment by Distributor’s affiliate, Sojitz Noble
Alloys Corporation, of any amount owed to Company hereunder shall constitute
full and final satisfaction of Distributor’s obligation.


 


10.                    TAXES


 


Company shall pay
all taxes (except for income taxes of Distributor), including those resulting
from future changes and amendments to existing tax laws, which are imposed on
the manufacture, transportation, delivery, sale, or use of Product, other than
taxes imposed on the resale of Product in the Territory. In the event
Distributor shall be required to pay any such tax, or shall do so as a
convenience to Company, Company shall promptly shall reimburse Distributor for
the same.


 


11.                    DISTRIBUTOR’S
EXPENSES


 


All expenses for
traveling, entertainment, office, clerical, office and equipment maintenance,
and general selling expenses that may be incurred by Distributor in connection
with this Agreement will be borne wholly by Distributor. In no case shall the
Company be responsible for such expenses. In lieu of any right to reimbursement
for such expenses, Company hereby grants Distributor an allowance of *** of the
price paid under Section 7 per pound for each pound of molybdenum
contained in Product shipped during the term of this agreement. Distributor
shall be entitled to deduct such allowance from each invoice for Product
shipped hereunder.


 


12.                    PRODUCTION
AND SALES INFORMATION; TRADE NAMES AND TRADEMARKS


 


(a)       Distributor agrees to maintain accurate
records of its activities pursuant to this Agreement, including but not limited
to customer lists, call reports and related market information and to supply
the Company, on a regular basis, with such information and any other
information as the Company may reasonably request.


 


(b)       Company agrees to provide Distributor
with production, product availability and other such information as Distributor
may reasonably request to carry out the purposes of the Agreement.


 


(c)       The Company grants to Distributor, and
Distributor shall have, the right to use the names “Thompson Creek Metals
Company,” “Blue Pearl,” and any other words, names, logos, trade names or
trademarks now or hereafter used by it to designate Product produced from the
Thompson Creek Mine and Langeloth Roaster, in connection with its marketing and
resale of Product. Except as set forth in the preceding sentence, Distributor
expressly acknowledges that


 


4

















 


Distributor shall not
acquire any other right, title or interest in, and shall not use any, words,
names, logos, trade names, or trademarks belonging to the Company and its
affiliates.


 


13.                    CUSTOMERS
AND CUSTOMER SERVICE


 


Distributor will
use its commercially reasonable efforts, in portions of the Territory chosen by
it in its sole discretion, to (i) promote the development of markets and
uses for the Product, (ii) render customer support service to customers in
accordance with the Company’s directions, and (iii) promote the placement
of orders by customers for the Product. Distributor shall not knowingly
distribute Product to arty customer that is purchasing Product primarily for
purposes of resale rather than use in customer’s business.


 


14.                    TERMINATION


 


This Agreement may
be terminated only upon the occurrence of a material breach by either of the
parties.


 


15.                    CONFIDENTIALITY


 


(a)       Company and Distributor shall each
maintain the confidentiality of the terms of this Agreement and the information
that it (as recipient, “Receiving Party”) acquires under this Agreement
from the other party (as disclosing party, “Disclosing Party”) about the
business of the Disclosing Party (the “Confidential Information”), as
provided in this Section. “Confidential Information” shall not include
information which (i) is or becomes generally available to the public
other than as a result of a disclosure by the Receiving Party or its Representatives
in violation of this Agreement or other obligation of confidentiality, (ii) was
available to the Receiving Party on a non-confidential basis prior to its
disclosure by the Disclosing Party or its Representatives, (iii) was
available to Receiving Party or its Representatives under other agreements
between Receiving Party and Disclosing Party or their affiliates relating to (A) the
Endako molybdenum mine and processing plant and other properties located in
British Columbia, Canada, or (B) the Agreement dated September 28,
2005 regarding the purchase of molybdenum from the Thompson Creek Mine, as
amended (collectively, the “Other Agreements”) fund the confidentiality
of such information shall remain subject to the Other Agreements), or (iv) becomes
available to the Receiving Party on a non-confidential basis from a person
(other than the Disclosing Party or its Representatives) who is not known to
the Receiving Party to be prohibited from disclosing such information to the
Receiving Party by a legal, contractual or fiduciary obligation to the
Disclosing Party or any of its Representatives. “Representative” means,
as to either party, such person’s affiliates and its and their controlling
persons, directors, officers, employees, agents, advisors (including, without
limitation, financial institutions, counsel and accountants).


 


(b)       Subject to paragraph (a), unless
otherwise agreed to in writing by the Disclosing Party, the Receiving Party
agrees:


 


(i)                       except as
required by Law (as defined below) or permitted under the Other Agreements, to
keep confidential and not to disclose or reveal any to any person, other than
Receiving Party’s Representatives assisting Receiving Party to carry


 


5

















 


out the purposes
of this Agreement the Confidential Information, the Confidential Information;
and


 


(ii)                    not to use
Confidential Information for any purpose other than (A) to carry out the
purposes of this Agreement, and (B) any other purposes for which Receiving
Party is expressly entitled to use such Confidential Information under the
Other Agreements, including without limitation audit rights of Receiving Party
or its affiliates under the Other Agreements.


 


“Law” means any
applicable law, regulation (including, without limitation, any rule, regulation
or policy statement of any organized, securities exchange, market or automated
quotation system on which any of either party’s securities are listed or
quoted) or any order or other legal process of any court or governmental agency.


 


(c)       Prior to making
or issuing any press release or other public announcement or disclosure
concerning this Agreement or the transactions contemplated herein, the party
contemplating such disclosure first shall consult with the other party, and the
Parties together shall agree upon the content and timing of such announcement
or disclosure; provided, however, that disclosure prior to such agreement may
be made if, in the good faith judgment of the disclosing party, there is not
sufficient time to consult with and obtain agreement from the other party
before such announcement or disclosure must be made under applicable laws. In
the case where disclosure is made prior to the parties’ agreement on content
and timing, the disclosing party shall notify the other party before such
announcement or disclosure is made if at all reasonably possible; but if not,
then as soon as reasonably possible thereafter.


 


16.                    COMPLIANCE
WITH LAWS


 


Distributor and
Company shall give all necessary notices and shall comply and ensure that their
respective employees comply with all applicable laws, ordinances, governmental rules and
regulations relative to, as the case may be, the Distributor’s or Company’s
obligations pursuant to this Agreement.


 


17.                 INDEMNIFICATION


 


Distributor agrees
to indemnify Company, its agents and employees against all claims, damages,
losses, and expenses, including reasonable attorney’s fees, of Company or
others, arising out of the breach by Distributor of this Agreement. Company
shall indemnify Distributor, its agents and employees against all claims,
damages, losses, and expenses, including reasonable attorney’s fees, of
Distributor or others, arising out of the breach by Company of this Agreement.


 


18.                  ASSIGNMENT


 


This Agreement may
not be assigned or otherwise transferred by either party without the written
consent of the other party.


 


6














 


19.      GOVERNING LAW AND
DISPUTE RESOLUTION


 


This Agreement
shall be construed, interpreted and enforced in accordance with, and the
respective rights and obligations of the parties shall be governed by, the laws
of the state of Colorado, excluding conflicts of law principles thereof that
would require or permit the application of the laws of a different
jurisdiction, including without limitation the United Nations Convention on
Contracts for the International Sale of Goods. If any dispute between the parties
arises concerning or relating to this Agreement (other than any claim alleging
that Product is non-conforming to the Specifications, which shall be resolved
under the procedure of Section 6), and initial negotiations are
unsuccessful in resolving such disagreement or dispute within 15 calendar days
following written notice thereof, the matter shall be referred for resolution
to one senior executive of each party having at least the title of Vice
President, General Manager, or their equivalent. If such senior executives
fail, after reasonable good faith efforts, to arrive at a satisfactory
resolution of such dispute within 30 calendar days following the date of the
initial written notice of dispute, or if no such officer of a party is made
available to confer within that period, either party may initiate binding
arbitration to resolve the dispute. Any such arbitration shall be administered
by the International Chamber of Commerce and conducted pursuant to the Rules of
Arbitration of the International Chamber of Commerce (“Rules”) before
one or more arbitrators appointed in accordance with the Rules. If the amount
of the dispute is $1 million or less, the parties agree that the dispute shall
be heard and resolved by one arbitrator appointed pursuant to the Rules;
otherwise, the parties agree that the dispute shall be heard and resolved by
three arbitrators appointed pursuant to the Rules (except that the two
party-appointed arbitrators and not the ICC Court shall appoint the chair). The
parties agree that the two party-appointed arbitrators shall select the chair
not later than 30 days after the date the second arbitrator is appointed. The
place of arbitration shall be Denver, Colorado, and the arbitration shall be
conducted in the English language. The award of the arbitrators shall be final
and binding upon the parties and judgment thereon may be entered in any court
of competent jurisdiction.


 


20.      ENTIRE AGREEMENT;
RELATIONSHIP OF PARTIES


 


This Agreement
constitutes the entire agreement between the parties relating to the
distributorship and sale of Product described herein. The parties acknowledge
and agree that neither of them has made any representation with respect to the
subject matter of the Agreement or any representations inducing its execution
and delivery except those specifically set forth. Each of the parties
acknowledges that such party has relied on the party’s own judgment in entering
into the Agreement. This Agreement shall not limit, amend, or otherwise affect
the rights and obligations of either party or their affiliates under the Other
Agreements. Nothing contained in this Agreement shall be deemed to constitute
either party the partner or the venturer of the other, or, to constitute either
party the agent or legal representative of the other, or to create any
fiduciary relationship between them. The parties do not intend to create, and
this Agreement shall not be construed to create, any mining, commercial or
other partnership or joint venture.


 


21.      NOTICES


 


Any notice
required or desired to be given hereunder shall be effective if made in writing
and delivered in person, or by recognized overnight courier, sent by facsimile
transmission, or sent by certified or registered U.S. mail, return receipt
requested, to the following addresses or to


 


7

















 


such other person or
address as such party may have specified in a notice duly given in accordance
with this Section:


 




	
  If to
  Company:

  	
   

  	
  If to Sojitz:

  
	
   

  	
   

  	
   

  
	
  Blue Pearl Mining Ltd.

  6 Adelaide Street East

  Suite 500

  	
   

  	
  Sojitz Corporation

  1-20, Akasaka 6-chorne

  
	
   

  	
   

  	
   

  
	
  Toronto, ON M5C 1H6

  Attention: Ian McDonald

   

  Fax No.: 416-367-0182

  	
   

  	
  Minato-ku, Tokyo,
  107-8655 Japan

  Attn: Shigeru Ohno, General Manager

            Iron
  Ore & Ferro Alloys Dept.

  Fax:     +81-3-5520-3517

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With
  copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sojitz Noble Alloys
  Corporation

  1211 Avenue of the Americas

  New York, New York 10036

  
	
   

  	
   

  	
  Attn: 

  	
  Kiyotaka Tomita

  
	
   

  	
   

  	
  Fax:

  	
  (212) 704-6630

  






 


22.       FORCE 
MAJEURE


 


(a)       Either party hereto
shall be relieved from liability for delay in performance or failure to
perform any of the obligations herein imposed, except the obligation to pay for
the Product already delivered, for the time and to the extent such delay or
failure (including Distributor’s failure to take delivery or Company’s failure
to make delivery of Product) is occasioned by acts of God, or acts of public
enemy; strike, lockout, or other industrial disturbances, riots, flood,
hurricanes, fire, explosion; or any other cause or causes of any kind or
character beyond the reasonable control of the party delayed or failing to
perform and which by the exercise of reasonable diligence the party is unable
to prevent (any such cause herein called “Force Majeure”).
Notwithstanding this Force Majeure clause, reduction or cessation of operations
as a result of economic conditions and the fact that the price of the Product
provided for in this Agreement is divergent from the market price shall not be
events of Force Majeure and thus shall not operate to relieve either party from
the obligation to perform.


 


(b)       A party shall be excused from its
obligations hereunder during a period of Force Majeure affecting that party to
the extent prevented by Force Majeure, provided that:


 


(i)                       The party
claiming Force Majeure gives the other party prompt written notice describing
the particulars of the occurrence of the condition or event of Force Majeure;


 


(ii)                    The suspension
of performance is of no greater scope and of no longer duration than is
required by the condition or event of Force Majeure;


 


8

















 


(iii)                 The
non-performing party proceeds with reasonable diligence to remedy its inability
to perform and provides monthly progress reports to the other party describing
actions taken to end the non-performance due to the condition or event of Force
Majeure; and


 


(iv)                As soon as the
non-performing party is able to resume performance of its obligations under
this Agreement, that Party shall give the other Party written notice to that
effect.


 


(c)       If Company claims Force Majeure, Company
shall reimburse Distributor for any additional costs incurred by Distributor to
obtain molybdenum products from other sources to satisfy any contracts of
Distributor to re-sell Product that existed on the date of Distributor’s receipt
of notice of such Force Majeure, or shall sell sufficient Product to
Distributor to meet the requirements of such contracts.


 


(d)       The Term of this Agreement shall be
extended by all periods of Force Majeure affecting Company. Company shall not
be entitled to terminate this Agreement as a result of Force Majeure affecting
Company, regardless of duration. Either party may terminate this Agreement as a
result of Force Majeure affecting the other party for a continuous period of
more than one year.


 


23.       CONDITION PRECEDENT


 


This Agreement is
subject to the condition precedent that the Company shall acquire majority
ownership of the Thompson Creek Mine, pursuant to the Acquisition or otherwise.
Promptly following the closing of such transaction, Company agrees at the
request of Distributor to cause TCMC and its subsidiaries to execute an
acknowledgment and ratification of this Agreement.


 


24.       EXECUTION; COUNTERPARTS


 


This Agreement may
be executed in one or more counterparts, all of which together shall constitute
one and the same agreement. Once executed, the parties may exchange executed
signature pages by facsimile transmission; and upon receipt by each party
of the signature page duly executed by the other party, the parties shall
be bound as fully as if each party was in possession of a fully-executed
original of this Agreement. Promptly following such exchange by facsimile
transmission, if made, the parties agree to exchange the executed originals of
this entire Agreement by U.S. Mail or overnight mail, so that each party
ultimately is in possession of at least one fully-executed original hereof.


 


25.       MODIFICATION; WAIVER


 


This Agreement
shall not be modified or amended, and no term, condition or provision hereof
shall be waived, in whole or in part, except in a writing executed by a duly
authorized representative of each party hereto.


 


9

















 


26.       MUTUAL AGREEMENT


 


The terms and
conditions of this Agreement have been determined by the mutual negotiation of
the parties hereto, and no provision hereof shall be construed against one
party or in favor of another party merely by reason of the party who prepared
or was responsible for the draftsmanship.


 


27.       SEVERABILITY


 


In the event any
provision of this Agreement conflicts with the law under which this Agreement
shall be construed, such provision shall be deleted from this Agreement, and
the Agreement shall be construed to give effect to the remaining provisions
hereof.


 


28.       HEADINGS


 


The headings in
this Agreement are inserted for convenience of reference only, shall not be
considered a part of this Agreement, and shall not affect the validity or
interpretation of this Agreement.


 


IN WITNESS
Whereof, the parties have executed this Agreement effective as of the date first
above written.


 


	
  SOJITZ
  CORPORATION

  	
   

  	
  BLUE
  PEARL MINING LTD.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
  /s/ Illegible

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
  Chairman &
  C.E.O.

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
  September 1, 2006

  



 


10