EXHIBIT 10.26


 


CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT.
THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY
REQUEST.  OMISSIONS ARE DESIGNATED AS
[****]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.


 


MOLYBDENUM SUPPLY AGREEMENT


 


THIS MOLYBDENUM SUPPLY
AGREEMENT (this “Agreement”) is made and entered into as of the 8th
day of August, 2008 by and between General Moly, Inc., a Delaware
corporation (“General
Moly”), and Sojitz Corporation, a Japanese corporation (“Buyer”). Each of
General Moly and Buyer are individually referred to herein as a “Party” and
together as the “Parties.”


 


RECITALS


 


A.            Eureka Moly, LLC (“Eureka Moly”) leases
and intends to operate a mine located in Eureka County, Nevada (the “Mount Hope Mine”)
from which it intends to produce Technical Grade Molybdenum Oxide (“TMO”), in the form of
powder and carbon-free briquettes, that meets or exceeds the standards on Exhibit A
(the “Products”);


 


B.            As of the date hereof,
(i) General Moly, through its wholly-owned subsidiary Nevada Moly, LLC,
owns an 80% equity interest in Eureka Moly and (ii) POS-Minerals
Corporation, a Delaware corporation and affiliate of POSCO Canada Ltd., owns a
20% equity interest in Eureka Moly; and


 


C.            General Moly wants to
sell to Buyer, and Buyer wants to purchase from General Moly, Products
available from General Moly’s share of production at the Mount Hope Mine (offer
is for output of Mount Hope Mine production only) upon the terms and subject to
the conditions set forth herein.


 


NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, agree as follows:


 


AGREEMENT


 


1.             Definitions and Construction.


 


1.1           Defined Terms.
In addition to the capitalized terms defined elsewhere in this Agreement, for
purposes of this Agreement:


 


“Adjusted Market Price” means (a) the
applicable Market Price times (b) [****].


 


“Affiliate” of any Person means any other
Person directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with such Person. A Person will be deemed
to control another Person if the controlling Person is the beneficial owner of
greater than 50% of any class or voting securities (or other voting or equity
interests) of the 


 

















 


controlled
person or possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies of the controlled Person, whether
through ownership of capital stock, by contract or credit arrangement, as
trustee or executor, or otherwise.


 


“Annual Amount” means, for any calendar
year during the Term, the sum of (i) the Base Amount and (ii) the
Additional Amount for such calendar year.


 


“Available Production” means the amount
of Products available from General Moly’s share of production at the Mount Hope
Mine after satisfaction of the Existing Obligations.


 


“Business Day” means a day other them a
Saturday or Sunday or a day on which banks are required or authorized to be
closed in the State of New York or in Japan.


 


“CIF” has the meaning given to it in the
International Chamber of Commerce’s official rules for the interpretation
of trade terms known as Incoterms 2000.


 


“Existing Obligations” means General Moly’s
contractual obligations relating to the supply of Products from General Moly’s
share of production at the Mount Hope Mine that are in existence as of the date
of this Agreement, or which are currently under negotiation, as set forth in Exhibit B.


 


“Floor Price” per pound of molybdenum
contained in the Products means:


 


(a)           for 2008, $[****], and


 


(b)           for 2009 and thereafter:


 


$[****] x (1 + [****] Percentage Change), but
in no event less than $[****].


 


For clarification, (i) the
Floor Price will only be adjusted [****], which will occur [****] of the
information necessary to calculate the applicable [****] Percentage Change
becoming [****] available [****], (ii) to the extent the information
necessary to calculate such adjustment is not available [****], the adjustment
will be calculated when such information becomes available and applied
retroactively [****], and (iii) the Floor Price will be calculated as set
forth above regardless of the Market Price or any other adjustments to the
Product Price (as defined in Section 3). All adjustments will be
retroactive to the Product sales [****]. Appropriate retroactive adjustments
will be reflected in the following month’s invoice cycle and will be subject to
the same payment terms as regular sales.


 


“Losses” means any claims, losses,
liabilities, damages, demands, fines, penalties, administrative and judicial
proceedings and orders, judgments, remedial action, enforcement actions of any
kind, and all reasonable and documented costs and expenses incurred in
connection therewith (including reasonable attorneys’ fees).


 


“Market Price” means the average of the
Platt’s Metals Week published prices for TMO Dealer Oxide during (a) the
month that was agreed for shipment, regardless of the month of actual shipment,
or (b) the month prior to the month that was agreed for shipment,
regardless of the month of actual shipment, as Buyer may determine annually
pursuant to Section 3.2. In the 


 


2

















 


event that the
basis for the Market Price ceases to exist or ceases to be published, the
Parties shall meet promptly with a view to agreeing on a new pricing basis and
the date for bringing such basis into effect.


 


“Person” means an individual, limited or
general partnership, corporation, trust, limited liability company,
unincorporated organization, association, joint venture or a government or
agency or political subdivision or instrumentality thereof.


 


“[****] Percentage Change”
means [****].


 


“Sales Territory” means, unless otherwise
agreed by the Parties in writing, (a) Japan, for which Buyer has an
exclusive right to market, sell and distribute the Products (the “Exclusive Sales Territory”),
and (b) South Korea, for which Buyer has a non-exclusive right to market,
sell and distribute the Products during the three- (3-) year period following
the Commencement Date (e.g., if the Commencement Date is January 1, 2011,
such non-exclusive right runs through December 31, 2013). Thereafter,
Buyer’s non-exclusive right In South Korea shall continue during the Term,
unless revoked or otherwise limited by General Moly upon twelve (12) months
written notice to Buyer, in the event that General Moly desires to enter into
an exclusive sales agreement with a third party with respect to South Korea.


 


“Term” means the term of this Agreement
as set forth in Section 5 hereof.


 


“Three-Month LIBOR” means the rate for
deposits in U.S. Dollars for a period of three months that appears on Reuters page LIBOR01
(or such other replacement page) as of 11:00 a.m. London time on the date
an applicable invoice is due hereunder. If Three-Month LIBOR is not available
from such source, then Three-Month LIBOR will be based on quotations from four
major reference banks in the London interbank market for deposits in U.S.
dollars for a period of three months.


 


1.2           Construction.


 


1.2.1        The words “include,” “includes,” and “including”
will be deemed to be followed by “without limitation.”


 


1.2.2        Any term importing the singular includes the
plural and vice versa.


 


1.2.3        Any reference to a gender includes the other
genders.


 


1.2.4        Any reference to “pounds” in this Agreement
refers to pounds of molybdenum contained in the Products.


 


1.2.5        The headings in this Agreement have been
inserted for convenience only and will not be taken into account in its
interpretation.


 


2.             Commencement Date and Supply Purchase Commitments


 


2.1           No Obligation Until
Commencement Date. No obligation to supply or purchase Products under this
Agreement will exist prior to the first January 1st (the “Commencement 


 


3

















 


Date”) following
two consecutive months during which output at the Mount Hope Mine equals or
exceeds 1.7 million pounds of molybdenum contained in the TMO produced during
each such mouth (the “Production
Date”). General Moly will notify Buyer of the Production Date
not less than ten (10) calendar days following the occurrence of the
Production Date. If the Commencement Date has not been reached by January 1,
2013, then Buyer may at its sole option terminate this Agreement.


 


2.2           Supply of Products
After Commencement Date. Upon the terms and subject to the conditions set
forth in this Agreement, General Moly agrees to supply to Buyer, and Buyer
agrees to purchase from General Moly, subject to the Available Production, the
amount of Products as follows:


 


2.2.1        For each calendar year following the
Commencement Date, five million (5,000,000) pounds of Products (the “Base Amount”).


 


2.2.2        For each calendar year following the
Commencement Date, General Moly and Buyer shall enter into discussions to
determine if any additional amount of Products snail be supplied under this
Agreement (any such quantity of Products, an “Additional Amount”), up to a maximum of
[****] ([****]) additional pounds in any calendar year (which amount shall be
prorated for any portion of a calendar year), and the prices for any such
Additional Amount; provided that such determination must be made (a) by
the Commencement Date, in the case of the calendar year in which the
Commencement Date occurs and the subsequent calendar year if the Commencement
Date occurs after September 30, and (b) by September 30 of the
prior year, for each calendar year beginning with the calendar year after the
Commencement Date. For clarification, if General Moly and Buyer do not agree
(each in its own discretion) on the quantity or pricing with respect to any
such Additional Amount in accordance with the foregoing deadlines, General Moly
shall have no obligation under this Agreement to supply any Additional Amount
for the applicable calendar year.


 


2.3           Monthly Quantities.
The quantity of Product to be delivered pursuant to Section 2.2
shall be taken in approximately equal monthly quantities over the course of the
particular calendar year. The Parties will reasonably cooperate with each other
in connection with forecasting, ordering and delivery schedules and procedures.
If after the Commencement Date General Moly fails to deliver the quantity of
Products required to be delivered pursuant to this Agreement for a period of
two consecutive months, Buyer shall have the right to require that General Moly
supply such shortfall in subsequent months, subject to Available Production, at
such Product Price as would have applied if the Products had been shipped
pursuant to the originally agreed delivery schedule. This is a best effort
supply agreement based on the Available Production of Mount Hope Mine with no
recourse to short supply except to allow it to be made up in future months, at
Buyer’s request, when supply is available.


 


2.4           Take-and-Pay.
Notwithstanding anything herein to the contrary, Buyer agrees that if Buyer
fails to take delivery of Products conforming to the Specifications made
available by General Moly in the amounts and on the terms set forth in this
Agreement up to the Annual Amount in each calendar year during the Term, Buyer
will still be obligated to pay General Moly with respect to such Products as
though Buyer had taken delivery pursuant to the terms of this 


 


4

















 


Agreement. Any
such shortfall in a calendar quarter that exceeds ten percent (10%) of the
pro-rated Annual Amount will be invoiced as if supplied in the first month of
the following quarter, along with supporting documentation reasonably
acceptable to Buyer, with pricing to be the average of the quarter in which the
shortfall occurred, and Buyer shall have the right to determine the disposition
of such Products.


 


2.5           Composition of
Products. All Products contemplated under this Agreement shall conform to
the specification listed in Section 2.6 and unless otherwise agreed
by the Parties shall be supplied as TMO in powder form in 250kg drums on
pallet. To the extent available, General Moly will make available to Buyer the
Products in other forms and packaging at mutually agreed discounts or premiums
depending on the Product form selected.


 


2.6           Specifications.
The specifications and technical requirements of the Products to be delivered
hereunder are set forth in Exhibit A (the “Specifications”).
Notwithstanding anything herein to the contrary, Buyer will not be required
hereunder to purchase any Products which do not comply with the Specifications.


 


2.7           Sales Territory.
Without the prior written consent of General Moly (which consent shall be at
the sole discretion of General Moly), during the Term, Buyer agrees that it
will not (a) sell, transfer or otherwise distribute any Products outside
of the Sales Territory, (b) enter into any agreement or arrangement with any
other party or amend any existing agreement or arrangement regarding the sale,
transfer or other distribution of any Products outside of the Sales Territory,
or (c) take any other action to intentionally circumvent the restrictions
set forth in (a) and (b) above. For the avoidance of doubt, Buyer may
distribute TMO or any other product not purchased by Buyer from General Moly in
any territory.


 


2.9           Certain Sales by
General Moly. Without the prior written consent of Buyer (which shall be at
the sole discretion of Buyer), during the Term, General Moly agrees that it
will not (a) sell, transfer or otherwise distribute any Products within
the Exclusive Sales Territory, or enter into an agreement or arrangement with
another party for its sale, transfer or distribution of Products within the
Exclusive Sales Territory except that covered under Section 6.2, (b) amend
any Existing Obligation pursuant to which General Moly is obligated to supply
Products from the Mount Hope Mine to any destination within the Exclusive Sales
Territory, or (c) take any other action to intentionally circumvent the
restriction set forth in (a) above.


 


3.             Pricing and Payment Terms. The price
payable by Buyer to General Moly for Products supplied by General Moly to Buyer
pursuant to this Agreement (the “Product Price”) will be equal to the Base
Product Price plus any mutually agreed premiums or minus any
mutually agreed discounts for Products supplied pursuant to the terms of this
Agreement that is other than TMO in powder form in 250kg drums on pallet.


 


3.1           Base Product Price.
The base price payable by Buyer to General Moly for Products supplied by
General Moly to Buyer pursuant to this Agreement (the “Base Product Price”)
will be as follows:


 


3.1.1        For the first [****] pounds of Base Amount
delivered in any calendar month, the Base Product Price will be equal to:


 


5

















 


(a)           if the Adjusted Market
Price is less than or equal to the Floor Price, an amount equal to the Floor
Price; and


 


(b)           if the Adjusted Market
Price exceeds the Floor Price, an amount equal to the Adjusted Market Price.


 


3.1.2        For any portion of the Base Amount in excess of
[****] pounds delivered in any calendar month, the Base Product Price will be
equal to:


 


Market Price


 


x      [****]


 


3.1.3        For any Additional Amount, the Parties shall
discuss and agree on the Base Product Price.


 


3.2           Determination of
Market Price. No later than (a) the Commencement Date, for the
calendar year in which the Commencement Date occurs, and (b) November 30
of the prior calendar year for any subsequent calendar year during the Term,
Buyer will give written notice to General Moly of the method of determining
Market Price (as set forth in the definition of Market Price in Section 1).
No later than November 30 of the prior calendar year, for any subsequent
calendar year during the Term, Buyer will give written notice to General Moly
of the general Product forms, types and packaging requested to be supplied
hereunder in the following calendar year, with specific quantities, forms,
types and packaging to be notified pursuant to Section 4.4 hereof.
The Parties agree to cooperate in good faith to reach agreement to determine
premiums and/or discounts for Product supplied pursuant to the terms of this
Agreement that is other than TMO in 250kg drums on pallet. To the extent the
Parties cannot reach such agreement by December 31 of the year in which
such notice was delivered, the Products for the following calendar year shall
be supplied as TMO in 250kg drums on pallet. In the event the price is not
known at the time of shipment, a provisional invoice will be issued using the “Market
Price for the month prior to the month of shipment” as the pricing basis, and a
final invoice shall be provided within ten (10) days after determination
of such final price. If the final invoice indicates that further payment by
Buyer is required, Buyer shall pay such amount by wire transfer to General Moly
within ten (10) days of receiving such final invoice. If the final invoice
indicates that Buyer is due a refund, General Moly shall apply a corresponding
credit to Buyer’s account.


 


4.             Deliveries and Invoices.


 


4.1           Delivery Point.
All Products will be delivered CIF major Japanese port of discharge (including
Yokohama, Nagoya, Osaka, Kobe and Moji), unless otherwise agreed by the
Parties, in which case Buyer will be charged or credited, as appropriate, the
surcharge or savings at cost for such point of delivery. The Product Price is
CIF major Japanese port, or as otherwise agreed by the Parties.


 


4.2           Invoices. Upon
each shipment of Products, General Moly will invoice Buyer for the
corresponding Product Price. General Moly will, at its expense, supply a
certificate confirming that each shipment of Products complies with the
Specifications, evidence in form and substance reasonably satisfactory to Buyer
of the quantity of Products loaded on to the ship, and an ocean bill of lading.
The invoice date will be the ocean bill of lading date and the amount 


 


6

















 


shown on such
invoice will be due and payable by wire transfer to an account identified by
General Moly within thirty (30) days of the date of the ocean bill of lading,
subject to any Assay Adjustment as set forth in Section 4.3. If
Buyer fails to pay any undisputed invoice amount pursuant to this Agreement on
or before the applicable due date, interest on the unpaid amount at a rate per
annum equal to Three-Month LIBOR plus one point five percent (1.5%) each year
will accrue from the applicable due date until the full invoice amount is paid.


 


4.3           Assay Adjustments.


 


4.3.1        Buyer has the right to appoint a neutral
sampler (the “Sampler”),
approved by General Moly (which approval will not be unreasonably withheld or
delayed), to take samples of the Products at the applicable delivery point.
Without prejudice to any other right of Buyer hereunder, in the event that
Buyer determines that General Moly has delivered Product with an incorrect
percentage of Mo content, which should result in an adjustment to the Product
Price (an “Assay
Adjustment”), Buyer will notify General Moly in writing of such
determination (along with its results of analysis of such Product) within sixty
(60) days of receipt of such shipment. The Parties will appoint a mutually
agreeable third party to assist in the resolution of such matter (the “Referee”) within
seventy-five (75) days of delivery of such notice. If the Parties fail to so
appoint the Referee within such seventy-five (75) day period, SGS Group (or
such other mutually agreeable third party, in the event that SGS Group or its
successor ceases to exist) will act as the Referee at any Party’s request. The
Referee will analyze the sample of such Product taken by the Sampler, whose
determination will be final and binding upon the Parties.


 


4.3.2        The costs and expenses related to the
procedures set forth in this Section 4.3 (including the costs of
the Sampler and Referee) will be borne by the Party whose results are furthest
from the results of the Referee. In the event that the results of the Referee
are exactly between those of General Moly and the Buyer, each of General Moly
and the Buyer will bear fifty percent (50%) of any such costs and expenses, For
the purpose of the foregoing, the “results” of General Moly will refer to the
assay results set forth on the related invoice.


 


4.3.3        In the event that the final determination
results in an obligation on a Party to pay additional amounts or to reimburse
any sum, such payment or reimbursement will be settled by credit or debit set forth
on the next invoice delivered by General Moly to Buyer.


 


4.4           Monthly Notification.
Without limiting the provisions of Section 2.3, Buyer will provide
General Moly with written notice of required quantities and shipping dates no
later than thirty (30) days prior to the intended month of shipment, as well as
the delivery points, forms, types and packaging of Products to be supplied
hereunder during such month.


 


7

















 


5.             Term; Termination.


 


5.1           Term. The initial
term of this Agreement will commence on the date hereof and expire five (5) years
from the Commencement Date unless sooner terminated in accordance with the
terms of this Agreement.


 


5.2           Termination.
This Agreement may be terminated by:


 


(a)           either
Party at any Time in the event of a material breach of this Agreement by the
other Party, provided a written termination notice identifying the material
breach has been sent to the breaching Party and the breach has not been cured
within sixty (60) days from the date of said notice;


 


(b)           either
Party at any time, by written notice, in the event:


 


(i)            of
insolvency of the other Party;


 


(ii)           of
the filing of a voluntary petition in bankruptcy of the other Party;


 


(iii)          of
the making of an assignment for the benefit of creditors by the other Party,
excluding assignments of accounts receivable;


 


(iv)          of
the inability of the other Party to pay its debts as they come due;


 


(v)           the
other Party has a receiver or other custodian of any kind appointed to
administer any substantial amount of the other Party’s property;


 


(vi)          of
the filing of all involuntary petition in bankruptcy with respect to the other
Party;


 


(vii)         any
proceedings for the reorganization of the other Party, or for the readjustment
of any of the other Party’s debts, under any laws, now or hereafter existing,
for the relief of insolvent debtors, will be commenced by or against the other
Party; or


 


(viii)        of
the discontinuation by the other Party of its business;


 


(c)           Buyer,
by written notice, in the event that after the Commencement Date, General Moly
fails to meet the delivery requirements of Products set forth in Section 2
for a period of three consecutive months; or


 


(d)           Buyer,
by written notice, in accordance with Sections 2.1 and 7.


 


5.3           Effect of Termination.
Unless notified otherwise by Buyer, upon a termination of this Agreement,
General Moly will fill all outstanding obligations to supply the Products in
accordance with the terms of this Agreement through the date of termination.
Buyer will accept and pay for all conforming Products delivered in accordance
herewith. Termination will be without prejudice to the rights and obligations
of the Parties which have accrued prior to the effective date of termination. Sections
1, 4 and 6 through 24 will survive the expiration or
termination of this Agreement.


 


8

















 


6.             Indemnification.


 


6.1           Procedure. if
Buyer claims that any of the Products fail to conform with the Specifications
or fail to be in compliance with all applicable laws (excluding claims relating
to Assay Adjustments which will be resolved in accordance with Section 4.3),
Buyer will notify General Moly of its claim (“Claim”), and provide General Moly with
all relevant documentation of the Claim, no later than sixty (60) days after
the date of delivery of such Products to Buyer. Upon receipt of a Claim,
General Moly will have the right to inspect such Products and all evidence of
the Claim, and General Moly and Buyer will make a good faith attempt to reach an
agreement as to whether the Claim is valid.


 


6.2           Remedies. If it
is determined by the Parties that the Claim is valid, General Moly will
promptly elect one of the following actions to remedy the failure, and will
deliver notice thereof to Buyer thirty (30) days prior to taking any such
action:


 


(a)           promptly
delivering to Buyer (to the original destination, unless otherwise agreed) at
no additional cost to Buyer, conforming Products to replace the non-conforming
Products;


 


(b)           promptly
refunding to Buyer the Product Price paid by Buyer for the non-conforming
Products; provided that General Moly will have the option to take possession of
the non-conforming Products; and provided that the quantities of such
non-conforming Products shall be deducted from the quantity of Products that
Buyer is required to purchase hereunder; or


 


(c)           applying
a credit, equal to the Product Price paid by Buyer for the non-conforming
Products, to the next purchase to be made by Buyer hereunder provided that the
quantities of such non-conforming Product shall be deducted from the quantity
of Products that Buyer is required to purchase hereunder.


 


If, upon receipt of notice of
the intent to take one of the actions above, Buyer instead desires General Moly
to take another action listed above to remedy the failure, Buyer will deliver
notice of such desire to General Moly. If upon delivery of such notice the
Parties do not agree on the action to be taken, such matter will be resolved
pursuant to the arbitration procedures set forth in Section 21.
Buyer agrees that General Moly may offer and sell any non-conforming Products
rejected pursuant to a Claim under this Section 6.2 within the
Sales Territory after Buyer has been offered and rejected an offer to purchase
such non-conforming Products; provided,
however, that any such offer and sale by General Moly of
non-conforming Products within the Sales Territory be upon the same terms and
conditions, including pricing, as offered by General Moly to Buyer.


 


If the Parties cannot agree on
the validity of a Claim, such matter will be considered a Dispute and will be
resolved pursuant to the arbitration procedures set forth in Section 21.


 


6.3           Warranties.


 


Subject to the limits set forth in Section 6.4,
GENERAL MOLY WARRANTS TO BUYER THAT AT THE
TIME THE PRODUCTS ARE SHIPPED, THE PRODUCTS WILL (I) 


 


9

















 


CONFORM TO THE
SPECIFICATIONS, AND (II) BE OWNED SOLELY BY GENERAL MOLY AND BE FREE FROM
ANY SECURITY INTEREST, LIEN OR OTHER ENCUMBRANCE. GENERAL MOLY WARRANTS TO
BUYER THAT ALL WORK PERFORMED PURSUANT TO THIS AGREEMENT BY GENERAL MOLY WILL
BE PERFORMED IN ACCORDANCE WITH ALL APPLICABLE LAWS AND REGULATIONS INCLUDING
ENVIRONMENTAL LAWS AND REGULATIONS.


 


6.4           Limitations. The
remedies set forth in Sections 6.2 and 6.5 will be Buyer’s sole
remedies for any Claims. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
EXCEPT AS PROVIDED HEREIN, GENERAL MOLY EXPRESSLY DISCLAIMS, AND MAKES NO OTHER
EXPRESS OR IMPLIED WARRANTIES OF ANY TYPE, WHETHER OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR USE OR OTHERWISE, WITH RESPECT TO THE PRODUCTS.


 


6.5           Indemnification by
General Moly. General Moly will at all times defend, indemnify, protect and
hold harmless Buyer and its affiliates and their directors, officers, agents,
employees, participants and assigns, from and against any and all Losses
arising in whole or in part out of the willful misconduct and/or gross
negligence in the performance of any obligations of General Moly under this
Agreement; provided however, that
General Moly will not be required to indemnify any indemnified Person for any
Losses to the extent resulting from the misconduct or gross negligence of such
indemnified Person.


 


6.6           Indemnification by
Buyer. Buyer will at all times defend, indemnify, protect and hold harmless
General Moly and its affiliates and their directors, officers, agents,
employees, participants and assigns, from and against any and all Losses
whatsoever arising in whole or in part out of the willful misconduct and/or
gross negligence in the performance of any obligations of Buyer under this
Agreement; provided however, that
Buyer will not be required to indemnify any indemnified Person for any Losses
to the extent resulting from the misconduct or gross negligence of such indemnified
Person.


 


7.             Force Majeure. Neither Party will be
liable to the other Party for default or delay in the performance of its
obligations hereunder when and to the extent that such default or delay is
caused by an order, injunction or stay entered by any court with valid
jurisdiction, war, civil commotion, strike, labor dispute, work stoppage or
slowdown, storm, earthquake, explosion, insurrection, epidemic or quarantine
restriction, fire, flood, act of God, or any other similar contingency beyond
the reasonable control of the Party seeking to be excused from performing its
obligations hereunder pursuant to this Section 7 (the occurrence of
any of the foregoing will be an “Event of Force Majeure”). The occurrence of
an Event of Force Majeure will not be grounds for termination of this
Agreement, absent the written consent of the Parties otherwise; provided, however, that Buyer may, at its
option, terminate this Agreement if an Event of Force Majeure prevents, or
Buyer reasonably anticipates that it will prevent, General Moly from meeting
its obligations in whole or in substantial part under this Agreement for more
than three (3) consecutive months during the Term. If an Event of Force
Majeure prevents a Party from meeting its obligations hereunder in part, but
not in whole, the Parties will use their commercially reasonable best efforts
to equitably adjust the Parties’ respective obligations hereunder consistent
with and in furtherance of the purposes hereof. Should General Moly invoke
force majeure conditions, Buyer will be entitled to obtain from alternative
sources such 


 


10

















 


Products as it
reasonably requires during the period that Events of Force Majeure subsist, and
the quantities of Products obtained under such conditions will be deducted from
the amount of Products Buyer is required to purchase hereunder.


 


8.             Confidentiality.


 


8.1           During the Term, each
of Buyer and General Moly will be in a position to receive certain of each
other’s confidential, privileged and proprietary information (“Confidential Information”).
Confidential Information excludes any information:


 


(a)           which
is or becomes available to the public through no act, omission or fault of, and
absent any breach of a covenant or obligation hereunder by, a Party;


 


(b)           which
a Party may have received lawfully from any third party without restrictions as
to disclosure thereof and without breach of this Agreement; or


 


(c)           which
was developed by a Party without (as established by documentation or by other
appropriate evidence) the use of the other Party’s Confidential Information or
any breach of this Agreement or any other agreement.


 


General Moly agrees that the Confidential
Information of Buyer, and Buyer agrees that the Confidential Information of General
Moly, is an integral and key part of the assets of each respective entity and
that the unauthorized use or disclosure of the other Party’s Confidential
Information would seriously damage the owner thereof in its business. As a
consequence of the above, General Moly and Buyer hereby agree that, during the
Term and for a period of five (5) years after the expiration or
termination hereof:


 


8.1.1        Neither of General Moly and Buyer will,
directly or indirectly:


 


(a)           use
any of the other Party’s Confidential Information, except as may be necessary
to perform its obligations hereunder; or


 


(b)           disclose,
furnish or make accessible, or cause any Person to disclose, furnish or make
accessible, any aspect of the other Party’s Confidential Information to any
Person (other than its employees and representatives who require access to such
Confidential Information in connection with this Agreement and agree to keep
such Confidential Information confidential in accordance with this Agreement).


 


8.1.2        Each of General Moly and Buyer will:


 


(a)           use
no less than the care a reasonably prudent Person would use in safeguarding
his, her or its Confidential Information;


 


(b)           limit
access to the other Party’s Confidential Information to its employees and
representatives who require access to such Confidential Information for the
purposes of performing its obligations hereunder and who have agreed to be
bound by the terms of this Section 8; and


 


11
















 


(c)           refrain
from any action or conduct which might reasonably or foreseeably be expected to
compromise the confidential, privileged or proprietary nature or the other
Party’s Confidential Information.


 


8.1.3        Each of General Moly and Buyer will comply with
reasonable requests made by the other from time to time regarding the
protection of the confidential, privileged and proprietary nature of the other
Party’s Confidential Information. Upon the written request of either Party, the
other Party will promptly return to the requesting Party all of the requesting
Party’s Confidential Information, including any and all copies and summaries
thereof, in each case in any format (whether written, electronic or otherwise).


 


8.1.4        For purposes of this Section 8, the
term “General Moly” will include all Affiliates of General Moly, and the term “Buyer”
will include all Affiliates of Buyer. Nothing in this Section 8
will operate to prevent a Party from disclosing such information as is required
by (a) applicable law, (b) a valid court order or (c) the rules or
policies of any securities exchange on which a Party’s securities may be listed
or as may be expressly authorized by the other Party in writing in advance of
any such disclosure; provided, however,
that in the case of a disclosure pursuant to clause (a), (b) or (c) of
this sentence, prior to any such disclosure, the Party whose obligation it is
to keep such information confidential will give the other Party notice of the
circumstances relating to such required disclosure and a reasonable opportunity
to seek an appropriate protective order with respect thereto.


 


9.             Waiver. The failure of any Party to
enforce at any time any of the provisions of this Agreement will in no way be
construed to constitute a waiver of any such provision nor in any way to affect
the validity of this Agreement or any part hereof, including the right of any
Party thereafter to enforce each and every provision. The waiver by any Party
of any breach or violation of any provision of this Agreement by the other
Party will not operate or be construed to be a waiver of any subsequent breach
or violation thereof.


 


10.           Governing Law. This Agreement will be
governed by the laws of the State of New York, without giving effect to any of
the provisions thereof that would require the application of the substantive
laws of any other jurisdiction.


 


11.           Notices. All notices and other
communications hereunder will be effective if in writing and delivered (a) in
person (which will be deemed to be received upon receipt), (b) by
overnight courier (which will be deemed to be received one Business Day
thereafter), (c) by facsimile transmission (which will be deemed to be
received upon receipt) or (d) mailed by certified mail, postage prepaid,
return receipt requested (which will be deemed to be received three Business
Days thereafter), as follows (or at such other address for a Party as will be
specified by like notice):


 


If to General Moly:


 


General Moly, Inc.


1726 Cole
Blvd., Suite 115


Lakewood,
Colorado 80401


Attention:              Chief Executive
Officer


Facsimile:               (303) 928-8598


 


12

















 


With a copy (which will not
constitute notice) to:


 


K&L Gates
LLP


925 Fourth
Avenue, Suite 2900


Seattle,
Washington 98104


Attention:              Gary J. Kocher


Facsimile:               (206) 623-7022


 


If to Buyer:


 


Sojitz
Corporation


Ferroalloys
Department


1-20, Akasaka
6-chome, Minato-ku


Tokyo
107-8655, Japan


Attention:              General Manager


Facsimile:               +81-3-5520-3517


 


With a copy (which will not
constitute notice) to:


 


Sojitz Corporation
of America


1211 Avenue of
the Americas


New York, New
York 10036


Attention:              Legal Department


Facsimile:               (212) 704-6935


 


All such notices and other communications
will be effective when received.


 


12.           Interpretation. The Parties have
participated jointly in the negotiation and drafting of this Agreement. If an
ambiguity or question of intent or interpretation arises, this Agreement will
be construed as if drafted jointly by the Parties and no presumption or burden
of proof will arise favoring or disfavoring any Party because of the authorship
of any provision of this Agreement.


 


13.           Assignment. This Agreement will be
binding upon, inure to the benefit of and be enforceable by the respective
successors and permitted assigns of the Parties. This Agreement may not be
assigned or otherwise transferred by Buyer or General Moly without the prior
written consent of the other Party; provided
that Buyer may, without the consent of General Moly, assign its rights and
obligations under this Agreement to an Affiliate of Buyer. Buyer hereby
acknowledges that any proposed assignment by Buyer to any other Party, by
operation of law or otherwise, is subject to General Moly’s consent, which will
be in General Moly’s sole discretion and may be conditioned upon amendment to
the payment terms set forth herein.


 


14.           Relationship of the Parties. It is
understood that each Party is conducting business as a separate and distinct
legal entity. Under no circumstances will either Party, its agents and/or
employees be considered agents, partners, representatives or employees of the 


 


13

















 


other Party.
Neither Party will have the right to act as the legal representative of the
other Party or to bind such other Party in any respect whatsoever or to incur
any debts or liability in the name of or on behalf of such other Party. This
Agreement creates no relationships of joint venturers, partners, associates or
principal and agent between the Parties.


 


15.           Severability. The provisions of this Agreement
will be deemed severable and the invalidity or unenforceability of any
provision will not affect the validity or enforceability of the other
provisions hereof; provided that
if any provision of this Agreement, as applied to any Party or to any circumstance,
is adjudged by a governmental body, arbitrator, or mediator not to be
enforceable in accordance with its terms, the Parties agree that the
governmental body, arbitrator, or mediator making such determination will have
the power to modify the provision in a manner consistent with its objectives
such that it is enforceable, and/or to delete specific words or phrases, and in
its reduced form, such provision will then be enforceable and will be enforced.


 


16.           Taxes and Expenses. Except as expressly
provided herein and without modifying or otherwise limiting the payment
obligations of the Parties pursuant to “CIF” deliveries as set forth herein,
each Party will be responsible for payment of all taxes, if any, imposed upon
it by applicable law in connection with this Agreement; provided, that (a) General
Moly will bear all taxes and expenses imposed on it, in connection with this
Agreement or the Products, prior to delivery of the Products pursuant to Section 4.1,
including any mining, mineral, export or related taxes, and (b) Buyer will
bear all taxes and expenses imposed on it in connection with this Agreement or
the Products, after such delivery, including any import taxes to Japan or
Korea. Each Party will pay all of its own administrative expenses, including
the fees and expenses of its counsel and other agents and representatives,
incurred in connection with the preparation, execution and performance of this
Agreement.


 


17.           Currency. All references to dollars or
amounts of money in this Agreement are references to United States Dollars.


 


18.           Counterparts; Facsimile Signatures.
This Agreement may be executed in two counterparts, and each such counterpart
will be deemed to be an original instrument, but all such counterparts together
will constitute but one agreement. This Agreement may be executed by facsimile
signatures.


 


19.           Entire Agreement. This Agreement,
including the attached Exhibits which are hereby incorporated herein by this
reference, constitutes the entire agreement and understanding of the Parties in
respect of its subject matter and supersedes all prior understandings,
agreements, or representations by or among the Parties, written or oral, to the
extent they relate in any way to the subject matter hereof.


 


20.           Amendment. No amendment, modification
or addition to this Agreement will be effective unless it is in writing and
executed by both Parties.


 


21.           Arbitration.


 


21.1         Good Faith Negotiation.
In the event of any dispute, claim or controversy (except with respect to
assaying issues as set forth in Section 4.3) (a “Dispute”) arising out
of or in connection with this Agreement, a Party may deliver written notice to
the other Party of such 


 


14

















 


Dispute
requesting to resolve such Dispute pursuant to this Agreement. Upon delivery of
such notice, members of senior management of each Party will meet as promptly
as practicable in a good faith attempt to resolve such Dispute.


 


21.2         Binding Arbitration.


 


21.2.1      If a Dispute is not resolved pursuant to Section 21.1
by the Parties within thirty (30) days of the delivery of written notice
thereof (or such longer period as the Parties may mutually agree), either Party
may make a written demand for binding arbitration in accordance with this Section 21.2.
The Dispute will then be submitted to and resolved by binding arbitration in
accordance with the Rules of Arbitration of the International Chamber of
Commerce by an Arbitral Tribunal appointed in accordance with such Rules. The
arbitration will be conducted in New York, New York. The Arbitral Tribunal
shall comprise three arbitrators. Each of General Moly and Buyer will appoint
one arbitrator. The two arbitrators so appointed will together appoint the
third arbitrator. if Buyer or General Moly fails to choose an arbitrator within
fourteen (14) days after receiving notice of commencement of arbitration, or if
the two arbitrators fail to choose a third arbitrator within fourteen (14) days
after their appointment, the Court of Arbitration of the International Chamber
of Commerce shall upon the request of Buyer or General Moly appoint the
arbitrator(s) to complete the Arbitral Tribunal. The arbitration will be
governed in accordance with (i) the provisions of this Agreement and (ii) the
governing law as specified in Section 10.


 


21.2.2      The arbitration shall be conducted in English,
and all documents delivered or produced pursuant to the arbitration shall be in
English. The Parties will provide to the arbitrators all information pertaining
to the dispute that the arbitrators may request, provided that all information
supplied by any Party will be deemed to be confidential, and the arbitrators
and other participants in the dispute will protect such information from
disclosure to the same extent as provided in Section 8.


 


21.2.3      The arbitrators will be instructed to render a
decision within sixty (60) days after selection and will be required to state
in writing the reasoning on which the decision and any award rests. The
arbitrators will have the power to award counsel fees and expenses, as well as
dispute resolution costs (including any fee for the arbitrators), to the
prevailing Party. Judgment upon the award rendered may be entered in any court
having jurisdiction or application may be made to such court for a judicial
acceptance of the award and an order of enforcement, as the case may be. The
arbitrators will not award any consequential, incidental, indirect, special,
punitive or exemplary damages hereunder or in connection herewith. The
arbitration award shall be final and binding upon the Parties to such
arbitration and may be enforced in any court having jurisdiction.


 


21.2.4      The performance of this Agreement shall not be
suspended, cease or be delayed by the reference of a Dispute to arbitration.


 


21.3         Limitations.
Notwithstanding anything contained in this Section 21, all disputes
regarding Assay Adjustments will be resolved in accordance with Section 4.3.
In addition, nothing contained in this Section 21 will prohibit or
limit any Party from seeking and obtaining 


 


15

















 


equitable
relief (including temporary restraining orders and preliminary and permanent
injunctions or stays) to which it would otherwise be entitled from a court of
competent jurisdiction.


 


22.           Limitation of Liability. UNDER NO
CIRCUMSTANCES WILL GENERAL MOLY OR BUYER BE LIABLE FOR CONSEQUENTIAL,
INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES HEREUNDER OR IN
CONNECTION HEREWITH.


 


23.           Third Party Beneficiaries. Except as
expressly contemplated by Sections 6.5 and 6.6, there are no
third party beneficiaries having rights under or with respect to this
Agreement.


 


24.           Remedies Cumulative. All remedies
available to the Parties for breach of this Agreement are cumulative and may be
exercised concurrently or separately, and the exercise of any one remedy shall
not be deemed an election of such remedy to the exclusion of other remedies.


 


[Signature page follows]


 


16

















 


IN WITNESS WHEREOF, Buyer and
General Moly have duly executed this Agreement as of the date first above
written.


 


	
   

  	
  GENERAL
  MOLY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Bruce D.
  Hansen

  
	
   

  	
  Name:

  	
  Bruce D.
  Hansen

  
	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SOJITZ
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  Kazuyoshi Shioda

  
	
   

  	
  Name:

  	
  Kazuyoshi
  Shioda

  
	
   

  	
  Title:

  	
  General
  Manager, Ferroalloys Dept.

  



 


[Signature
Page to Molybdenum Supply Agreement]


 

















 


Exhibit A


 


Specifications


 


SPECIFICATION
MOLYBDENUM OXIDE


 


	
  Mo

  	
  [****]

  
	
   

  	
   

  
	
  Cu

  	
  [****]

  
	
   

  	
   

  
	
  S

  	
  [****]

  
	
   

  	
   

  
	
  C

  	
  [****]

  
	
   

  	
   

  
	
  P

  	
  [****]

  
	
   

  	
   

  
	
  Si

  	
  [****]

  
	
   

  	
   

  
	
  Pb

  	
  [****]

  
	
   

  	
   

  
	
  Zn

  	
  [****]

  
	
   

  	
   

  
	
  Other elements

  	
  [****]

  



 

















 


Exhibit B


 


Existing
Obligations


 


	
  Name of Purchaser

  	
   

  	
  *Quantity
  of TMO per Month/Year

  	
   

  	
  **Term
  of Supply Obligation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [****]

  	
   

  	
  [****]

  	
   

  	
  [****]

  



 






*              All quantities are listed in terms of
molybdenum units regardless of gross weight.


 


**           General Moly shall promptly notify Buyer of
the date of first supply.


 


19