sv3asr
As filed with the Securities and Exchange Commission on
November 5, 2007
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION STATEMENT UNDER
THE
SECURITIES ACT OF
1933
Royal Gold, Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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84-0835164
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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1660 Wynkoop Street
Suite 1000
Denver, Colorado 80202
(303) 573-1660
(Address, including zip code,
and telephone number,
including area code of registrants principal executive
offices)
Stanley Dempsey
Royal Gold, Inc.
1660 Wynkoop Street, Suite 1000
Denver, Colorado 80202
(303) 573-1660
(Name, address, including zip
code, and telephone number,
including area code, of agent for service)
Copies to:
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Paul Hilton, Esq.
Hogan & Hartson L.L.P.
1200 Seventeenth Street, Suite 1500
Denver, Colorado 80202
(303) 899-7300
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David I. Gottlieb, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
(212) 225-2000
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Approximate date of commencement of proposed sale to the
public: From time to time after this registration
statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box: o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box: o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering: o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering: o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box: þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box: o
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of each class of
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Amount to be
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Offering
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Aggregate Offering
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Amount of
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securities to be registered
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Registered
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Price per Unit
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Price
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Registration Fee
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Mandatory Convertible Preferred Stock, par value $0.01 per
share(1)
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$0(2)
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(1)
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Including an indeterminate number
of shares of common stock, together with rights to purchase
Series A Junior Participating Preferred Stock attached
thereto, issuable upon conversion of or as a dividend on the
Mandatory Convertible Preferred Stock. No separate consideration
will be received upon the issuance of any shares of common stock
(together with rights to purchase Series A Junior
Participating Preferred Stock) issuable upon conversion of or as
a dividend on the Mandatory Convertible Preferred Stock.
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(2)
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The registrant is registering
hereby an unspecified number of shares of Mandatory Convertible
Preferred Stock and is relying on Rules 456(b) and 457(r).
No separate consideration will be received upon the issuance of
any shares of common stock (together with rights to purchase
Series A Junior Participating Preferred Stock) issuable
upon conversion of the Mandatory Convertible Preferred Stock. In
accordance with Rules 456(b) and 457(r), the registrant is
deferring payment of all of the registration fee.
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This prospectus relates to an
effective registration statement under the Securities Act of
1933, but is not complete. You should refer to the accompanying
prospectus supplement or other accompanying offering material
for a description of the securities offered by this prospectus
and other important information.
PROSPECTUS
Mandatory Convertible Preferred
Stock
This prospectus relates to our mandatory convertible preferred
stock and our common stock into which it is convertible. The
terms of the mandatory convertible preferred stock that are
offered, and other information will be set forth in one or more
supplements to this prospectus, post-effective amendments to the
registration statement of which this prospectus is a part, or
one or more documents incorporated by reference herein. You
should read this prospectus and any prospectus supplement
carefully before you purchase any of our securities. This
prospectus may not be used to sell securities unless accompanied
by a prospectus supplement.
Royal Golds common stock is traded on the NASDAQ Global
Select Market under the symbol RGLD. On
November 2, 2007, the reported last sale price of our
common stock on the NASDAQ Global Select Market was $32.73 per
share. Our common stock is also traded on The Toronto Stock
Exchange under the symbol RGL.
Investing in our securities involves certain risks. See
Risk Factors beginning on page 4, in the
applicable prospectus supplement and in the documents
incorporated herein by reference.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
This prospectus is dated November 5, 2007.
You should rely only on the information contained in, or
incorporated by reference into, this prospectus. We have not
authorized anyone to provide you with different or additional
information. We are not offering to sell or soliciting any offer
to buy any securities in any jurisdiction where the offer or
sale is not permitted. You should not assume that the
information in this prospectus or in any document incorporated
by reference is accurate as of any date other than the date on
the front cover of the applicable document.
In this prospectus, we use the terms Royal Gold,
the Company, we, us and
our to refer to Royal Gold, Inc., except where the
context otherwise requires or as otherwise indicated in this
prospectus.
SPECIAL
NOTE ABOUT FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents
incorporated herein by reference contain certain references to
future expectations, projections of production, reserve
estimates and forward-looking statements and information
relating to us or to properties operated by others that are
based on our beliefs and assumptions or those of management of
the companies who operate properties on which we have royalties,
as well as information currently available to management.
Additional written or oral forward-looking statements may be
made by the Company from time to time in filings with the United
States Securities and Exchange Commission (the SEC)
or otherwise. Words such as may, could,
should, would, believe,
estimate, expect,
anticipate, plan, forecast,
potential, intend, continue,
project and variations of these words, comparable
words and similar expressions are intended to identify
forward-looking statements. These statements are included or
incorporated by reference in this prospectus. Forward-looking
statements inherently involve risks and uncertainties.
Accordingly, actual results may differ materially from those
expressed or implied by these forward-looking statements.
Factors that could cause or contribute to such differences
include, but are not limited to, the risks described under
Risk Factors in our Annual Report on
Form 10-K
for the fiscal year ended June 30, 2007, our Quarterly
Report on
Form 10-Q
for the period ended September 30, 2007 and in future
filings we make with the SEC. Forward-looking statements speak
only as of the date on which they are made. We expressly
disclaim any obligation to update or revise any forward-looking
statement, whether as a result of new information, future events
or otherwise.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
We incorporate information into this prospectus by reference,
which means that we disclose important information to you by
referring you to another document filed separately with the SEC.
The information incorporated by reference is deemed to be part
of this prospectus, except to the extent superseded by
information contained herein or by information contained in
documents filed with the SEC after the date of this prospectus.
We incorporate by reference the documents listed below that have
been previously filed with the SEC:
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our Annual Report on
Form 10-K
for the fiscal year ended June 30, 2007;
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our Quarterly Report on
Form 10-Q
for the quarter ended September 30, 2007;
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our Current Reports on
Form 8-K
filed on July 2, 2007, July 24, 2007, July 31,
2007, August 2, 2007, August 9, 2007, August 29,
2007, August 31, 2007, September 4, 2007,
September 10, 2007, October 3, 2007, October 26,
2007 and November 1, 2007;
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our Definitive Proxy Statement filed on Schedule 14A on
October 16, 2007; and
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our Registration Statement on Form 8-A under the Securities
Exchange Act of 1934 (the Exchange Act) for the
registration of Preferred Stock Purchase Rights filed on
September 12, 1997 together with any amendments thereto.
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1
We also incorporate by reference into this prospectus additional
documents that we may file with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act from
the date of this prospectus until we have sold all of the
securities to which this prospectus relates or the offering is
terminated. We do not incorporate by reference additional
documents or information furnished to, but not filed with, the
SEC.
We will provide a copy of the documents we incorporate by
reference, at no cost, to any person who receives this
prospectus. You may request a copy of these filings by writing
or telephoning us at:
Royal Gold,
Inc.
1660 Wynkoop Street, Suite 1000
Denver, CO 80202
Attn: Stockholder Relations
Telephone:
(303) 573-1660
WHERE
YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may inspect without
charge any documents filed by us at the SECs Public
Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549. You may obtain copies of all or any
part of these materials from the SEC upon the payment of certain
fees prescribed by the SEC. Please call the SEC at
1-800-SEC-0330
for further information on the Public Reference Room. The SEC
also maintains an Internet site that contains reports, proxy and
information statements and other information regarding issuers
that file electronically with the SEC. Our filings with the SEC
are available to the public through the SECs website at
http://www.sec.gov.
You may read and copy our SEC filings and other information at
the offices of the NASDAQ Global Select Market,
1735 K Street, NW, Washington, D.C. 20006.
We have filed with the SEC a shelf registration
statement on
Form S-3
relating to the mandatory convertible preferred stock and our
common stock into which it is convertible that may be offered by
this prospectus. This prospectus is part of the registration
statement and does not contain all the information in the
registration statement. You will find additional information
about us in the registration statement. Any statement made in
this prospectus concerning a contract, agreement or other
document of ours is only a summary and is not necessarily
complete, and you should read the documents that are filed as
exhibits to the registration statement or otherwise filed with
the SEC for a more complete understanding of the document or
matter involved. Each such statement is qualified in all
respects by reference to the document to which it refers. You
may inspect without charge a copy of the registration statement
at the SECs Public Reference Room in Washington D.C., as
well as through the SECs website.
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This summary highlights selected information about our
company. This summary is not complete and does not contain all
of the information that may be important to you. For a more
complete understanding of us and the terms of the particular
securities we will offer, you should read carefully this entire
prospectus, including the Risk Factors section, the
applicable prospectus supplement for such securities and the
other documents we refer to and incorporate by reference. In
particular, we incorporate important business and financial
information in this prospectus by reference. Please refer to our
business and operational information contained in Item 1 of
our annual report on
Form 10-K
for the fiscal year ended June 30, 2007, filed on
August 22, 2007, and Part I, Item 1 of our
Quarterly Report on
Form 10-Q
for the period ended September 30, 2007, filed on
November 1, 2007, both of which are incorporated herein by
reference.
We, together with our subsidiaries, are engaged in the business
of acquisition and management of precious and other metals
royalties. Royalties are passive (non-operating) interests in
mining projects that provide the right to revenue or production
from the project after deducting specified costs, if any. Our
principal producing royalty interests are as follows:
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four royalty interests at the Pipeline Mining Complex located in
Nevada and operated by the Cortez Joint Venture, a joint venture
between Barrick Gold Corporation (Barrick) (60%) and
Kennecott Explorations (Australia) Ltd. (40%), a subsidiary of
Rio Tinto plc;
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a royalty interest on the Robinson mine, located in eastern
Nevada and operated by a subsidiary of Quadra Mining Ltd.;
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a royalty interest on the SJ Claims, covering portions of the
Betze-Post mine located in Nevada and operated by a subsidiary
of Barrick;
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a royalty interest on the Leeville Mining Complex, located in
Nevada and operated by a subsidiary of Newmont Mining
Corporation;
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two royalty interests in the Troy underground silver and copper
mine located in Montana and operated by Revett Silver Company;
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two royalty interests on the Taparko mine, located in Burkina
Faso and operated by a subsidiary of High River Gold Mines Ltd.;
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a royalty interest on the Mulatos mine, located in Sonora,
Mexico, and operated by a subsidiary of Alamos Gold, Inc.;
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a royalty interest on the Bald Mountain mine located in Nevada
and operated by a subsidiary of Barrick; and
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a royalty interest on a number of properties in Santa Cruz
Province, Argentina, including the Martha silver mine, operated
by Coeur dAlene Mines Corporation.
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During the first quarter ended September 30, 2007, we
generated royalty revenues of approximately $12.82 million,
including approximately $5.68 million from the Pipeline
Mining Complex, representing approximately 44% of its total
revenues for that period. In addition, we generated royalty
revenues of approximately $3.55 million from the Robinson
mine, approximately $1.15 million from the SJ Claims at the
Betze-Post mine, approximately $842,000 from the Leeville Mining
Complex, approximately $558,000 from the Troy mine,
approximately $435,000 from the Taparko project, approximately
$223,000 from the Mulatos mine, approximately $200,000 from the
Bald Mountain mine, and approximately $170,000 from the Martha
mine.
We were incorporated under the laws of the State of Delaware on
January 5, 1981. Our executive offices are located at 1660
Wynkoop Street, Suite 1000, Denver, Colorado 80202, and our
telephone number is
(303) 573-1660.
We maintain a website at
http://www.royalgold.com
where general information about us is available, although we are
not incorporating the contents of our website into this
prospectus.
3
An investment in our securities involves a high degree of risk.
We urge you to carefully consider the risks incorporated by
reference in this prospectus before making an investment
decision, including those risks identified under Risk
Factors in our annual report on
Form 10-K
for the fiscal year ended June 30, 2007 and our Quarterly
Report on
Form 10-Q
for the period ended September 30, 2007, both of which are
incorporated by reference in this prospectus, which may be
amended, supplemented or superseded from time to time by other
reports we file with the SEC in the future. Additional risks,
including those that relate to any particular securities that we
offer, will be included in the applicable prospectus supplement.
Our business, financial condition, results of operations and
cash flows could be materially adversely affected by any of
these risks. The market or trading price of our securities could
decline due to any of these risks. In addition, please read
Special Note About Forward-Looking Statements in
this prospectus, where we describe additional uncertainties
associated with our business and the forward-looking statements
included or incorporated by reference in this prospectus.
Additional risks not presently known to us or that we currently
deem immaterial may also impair our business and operations or
cause our the price of our securities to decline.
We intend to use the net proceeds from this offering as set
forth in the accompanying applicable prospectus supplement.
RATIO
OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
The following table sets forth the ratio of earnings to fixed
charges and preferred stock dividends of Royal Gold for the
periods indicated.
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Three Months
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Ended
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September 30,
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Fiscal Year Ended June 30
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2007
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2007
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2006
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2005
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2004
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2003
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Ratio of earnings to fixed charges (unaudited)
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24.95
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22.18
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77.89
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112.64
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80.91
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53.06
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Ratio of earnings to fixed charges and preferred stock dividends
(unaudited)
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24.95
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22.18
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77.89
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112.64
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80.91
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53.06
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For the purpose of computing the ratio of earnings to fixed
charges, earnings consist of income from continuing operations
before income taxes, minority interest and losses or earnings
from equity investments plus fixed charges. Fixed charges
consist of interest expensed and capitalized, amortization of
debt issuance costs and that portion of rental expense we
believe to be representative of interest. Note that prior to our
fiscal year ended June 30, 2007, interest charges and that
portion of rental expense representative of interest were
immaterial. As of the date of this prospectus, we have not
issued any shares of preferred stock.
4
DESCRIPTION
OF COMMON STOCK
The following description of our common stock, together with the
additional information we include in any applicable prospectus
supplement, summarizes the material terms and provisions of the
common stock issuable upon conversion of, or as a dividend on,
our mandatory convertible preferred stock. For additional
information about the terms of our common stock, please refer to
our restated certificate of incorporation, amended and restated
bylaws, and stockholder rights agreement that are incorporated
by reference into the registration statement of which this
prospectus is a part. The terms of these securities may also be
affected by the general corporation law of the state of
Delaware. The summary below and that contained in any prospectus
supplement may not contain all information that may be important
to a particular investor and we urge you to read our restated
certificate of incorporation, amended and restated bylaws and
amended and restated rights agreement.
General
Our authorized capital stock consists of 40,000,000 shares
of common stock, par value $0.01 per share and
10,000,000 shares of preferred stock, par value $0.01 per
share. As of November 2, 2007, there were approximately
30,069,673 issued and outstanding and no shares of preferred
stock issued or outstanding. Holders of common stock are
entitled to one vote for each share held in the election of
directors and on all other matters submitted to a vote of
stockholders and do not have any cumulative voting rights. At
our annual meeting of stockholders to be held on
November 7, 2007, holders of our common stock will be
considering and voting on a proposal to amend our restated
certificate of incorporation to increase the authorized shares
of our common stock from 40,000,000 shares to
100,000,000 shares.
Holders of common stock are entitled to receive ratably such
dividends, if any, when, as and if declared by the board of
directors out of funds legally available therefor, subject to
any preferential dividend rights of any outstanding preferred
stock.
Upon the liquidation, dissolution, or winding up of our company,
the holders of common stock are entitled to receive ratably the
net assets of the company available after payment of all debts
and other liabilities, subject to the prior rights of any
outstanding preferred stock. Holders of common stock have no
preemptive, subscription, redemption, or conversion rights other
than the right, when exercisable, to purchase one one-thousandth
of a share of our Series A Junior Participating Preferred
Stock. The outstanding shares of common stock are, and the
shares offered by us by any prospectus supplement accompanying
this prospectus will be, when issued and paid for, fully paid
and non-assessable.
Any prospectus supplement in connection with an offering of our
mandatory convertible preferred stock may contain additional
information about our common stock.
Anti-Takeover
Effects of Certain Provisions of Delaware Law and Our Restated
Certificate of Incorporation and Amended and Restated
Bylaws
Effect
of Delaware Anti-takeover Statute.
We are subject to Section 203 of the Delaware General
Corporation Law, an anti-takeover law. In general,
Section 203 prohibits a Delaware corporation from engaging
in any business combination with any interested stockholder for
a period of three years following the date that the stockholder
became an interested stockholder, unless:
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prior to that date, the board of directors of the corporation
approved either the business combination or the transaction that
resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares of
voting stock outstanding (but not the voting stock owned by the
interested stockholder) those shares owned by persons who are
directors and also officers and excluding
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employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange
offer; or
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on or subsequent to that date, the business combination is
approved by the board of directors of the corporation and
authorized at an annual or special meeting of stockholders, and
not by written consent, by the affirmative vote of at least
662/3%
of the outstanding voting stock that is not owned by the
interested stockholder.
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Section 203 defines business combination to
include the following:
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any merger or consolidation involving the corporation and the
interested stockholder;
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any sale, transfer, pledge or other disposition of 10% or more
of the assets of the corporation involving the interested
stockholder;
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subject to certain exceptions, any transaction that results in
the issuance or transfer by the corporation of any stock of the
corporation to the interested stockholder;
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any transaction involving the corporation that has the effect of
increasing the proportionate share of the stock of any class or
series of the corporation beneficially owned by the interested
stockholder; or
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the receipt by the interested stockholder of the benefit of any
loans, advances, guarantees, pledges or other financial benefits
provided by or through the corporation.
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In general, Section 203 defines an interested stockholder
as any entity or person beneficially owning 15% or more of the
outstanding voting stock of the corporation, or who beneficially
owns 15% or more of the outstanding voting stock of the
corporation at any time within a three year period immediately
prior to the date of determining whether such person is an
interested stockholder, and any entity or person affiliated with
or controlling or controlled by any of these entities or persons.
Restated
Certificate of Incorporation and Amended and Restated Bylaws
Provisions.
Our restated certificate of incorporation and amended and
restated bylaws include provisions that may have the effect of
discouraging, delaying or preventing a change in control or an
unsolicited acquisition proposal that a stockholder might
consider favorable, including a proposal that might result in
the payment of a premium over the market price for the shares
held by stockholders. These provisions are summarized in the
following paragraphs.
Classified Board of Directors. Our restated
certificate of incorporation provides for our board to be
divided into three classes of directors serving staggered, three
year terms. The classification of the board has the effect of
requiring at least two annual stockholder meetings, instead of
one, to replace a majority of the members of the board of
directors.
Authorized but Unissued or Undesignated Capital
Stock. Our authorized capital stock consists of
40,000,000 shares of common stock and
10,000,000 shares of preferred stock. At our annual meeting
of stockholders to be held on November 7, 2007, holders of
our common stock will be considering and voting on a proposal to
amend our restated certificate of incorporation to increase the
authorized shares of our common stock from
40,000,000 shares to 100,000,000 shares. The
authorized but unissued (and in the case of preferred stock,
undesignated) stock may be issued by the board of directors in
one or more transactions. In this regard, our restated
certificate of incorporation grants the board of directors broad
power to establish the rights and preferences of authorized and
unissued preferred stock. The issuance of shares of preferred
stock pursuant to the board of directors authority
described above could decrease the amount of earnings and assets
available for distribution to holders of common stock and
adversely affect the rights and powers, including voting rights,
of such holders and may have the effect of delaying, deferring
or preventing a change in control. The board of directors does
not currently intend to seek stockholder approval prior to any
issuance of preferred stock, unless otherwise required by law.
6
Special Meetings of Stockholders. Our amended
and restated bylaws provide that special meetings of our
stockholders may be called only by our chairman, chief executive
officer, president or board of directors. Stockholders do not
have the right to call special meetings or to bring business
before special meetings.
Stockholder Action by Written Consent. Under
Delaware law, unless otherwise provided in a corporations
certificate of incorporation, any action that may be taken at a
meeting of stockholders may be taken without a meeting and
without prior notice if a written consent is signed by the
holders of the minimum number of votes necessary to authorize
the action at a meeting at which all shares entitled to vote
were present and voted. Our amended and restated bylaws provide
the same standard for written consent.
Notice Procedures. Our amended and restated
bylaws establish advance notice procedures with regard to all
stockholder proposals to be brought before meetings of our
stockholders, including proposals relating to the nomination of
candidates for election as directors, the removal of directors
and amendments to our amended and restated certificate of
incorporation or amended and restated bylaws. These procedures
provide that notice of such stockholder proposals must be timely
given in writing to our secretary prior to the meeting.
Generally, to be timely, a stockholder who intends to bring
matters before an annual meeting must provide advance notice of
such intended action not less than 90 days nor more than
120 days prior to the meeting; except if less than
100 days notice was given or public disclosure was made for
the meeting, advance notice of the matter is required to be
given not less than 10 days after notice or public
disclosure of the meeting, and notice as required by the
Exchange Act. The notice of the matter generally must contain a
brief description of the business desired to be brought before
the annual meeting and if regarding the nomination of a
director, all information required to be disclosed in
solicitation of proxies for election of directors under
Schedule 14A of the Exchange Act, the reasons for
conducting the business at the annual meeting, the name and
record address of such stockholder, the class and number of
shares of Royal Gold stock owned by such stockholder, a
description of any material interest of the stockholder in such
business and whether such stockholder intends to solicit proxies
from Royal Gold stockholders.
Stockholder
Rights Plan
Rights to purchase Series A Junior Participating Preferred
Stock, $0.01 par value per share (the Series A
Preferred Stock) have been distributed to holders of our
common stock under our amended and restated rights agreement. A
maximum of 500,000 shares of Series A Preferred Stock
is currently authorized for issuance upon exercise of these
rights. The rights agreement provides that attached to each
share of our common stock is one right that, when exercisable,
entitles the holder to purchase one one-thousandth of a share of
Series A Preferred Stock at a purchase price of $175,
subject to adjustment. In certain events, including when a
person or group becomes the owner of 15% or more of our
outstanding common stock (except by reason of share acquisitions
by the Company) or when a person or group commences a tender
offer or exchange offer for 15% of more of our outstanding
common stock, the rights become exercisable. Exercise of the
rights would entitle the holders of the rights (other than the
acquiring person or group) to receive that number of
one-thousandths of a share of Series A Preferred Stock with
a market value equal to two times the exercise price of the
rights. At any time after the rights become exercisable, but
before the acquiring person or group has obtained 50% or more of
our outstanding common stock, our board of directors, under
certain circumstances, may exchange each of the rights for a
share of common stock or one one-thousandth of a Series A
Preferred Share or the preferred stock equivalent. Accordingly,
exercise or exchange of the rights may cause substantial
dilution to a person or group that attempts to acquire our
company. The rights, which expire on September 10, 2017,
may be redeemed at a price of $.001 per right at any time until
the tenth day following an announcement that an individual,
corporation or other entity has acquired 15% or more of our
outstanding common stock, except as otherwise provided in the
rights agreement. The rights agreement makes the takeover of our
company much more difficult.
7
Limitation
of Director Liability
As permitted by provisions of the Delaware General Corporation
Law, our restated certificate of incorporation limits, in
certain circumstances, the monetary liability of our directors
for breaches of their fiduciary duties as directors. These
provisions do not eliminate the liability of a director:
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for a breach of the directors duty of loyalty to our
company or its stockholders;
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for acts or omissions by a director not in good faith or which
involve intentional misconduct or a knowing violation of law;
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arising under Section 174 of the Delaware General
Corporation Law (relating to the declaration of dividends and
purchase or redemption of shares in violation of the Delaware
General Corporation Law); or
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for any transaction from which the director derived an improper
personal benefit.
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In addition, these provisions do not eliminate the liability of
a director for violations of federal securities laws, nor do
they limit our rights or the rights of our stockholders, in
appropriate circumstances, to seek equitable remedies such as
injunctive or other forms of non-monetary relief. Such remedies
may not be effective in all cases.
Indemnification
Arrangements
Our amended and restated bylaws provide that our company shall
indemnify all of our directors and officers to the full extent
permitted by Delaware law. Under such provisions any director or
officer, who, in his capacity as such, is made or threatened to
be made a party to any suit or proceeding, may be indemnified if
the board determines such director or officer acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the company. The amended and
restated bylaws and the Delaware General Corporation Law further
provide that such indemnification is not exclusive of any other
rights to which such individuals may be entitled under the
bylaws, any agreement, any vote of stockholders or disinterested
directors, or otherwise.
We have entered into indemnification agreements to assure our
directors and officers that they will be indemnified to the
extent permitted by our amended and restated bylaws and the
Delaware General Corporation Law. The indemnification agreements
cover any and all expenses, judgments, fines, penalties, and
amounts paid in settlement by the director or officer, provide
for the prompt advancement of all expenses incurred by the
director or officer in connection with any proceeding and
obligate the director or officer to reimburse us for all amounts
so advanced if it is subsequently determined, as provided in the
indemnification agreements, that the director or officer is not
entitled to indemnification.
Transfer
Agent
The transfer agent for our common stock is Computershare
Trust Company, Golden, Colorado; and Computershare
Trust Company of Canada, Toronto, Ontario.
The validity of the securities being offered by this prospectus
will be passed upon for us by Hogan & Hartson LLP,
Denver, Colorado.
The consolidated financial statements of Royal Gold, Inc. and
managements assessment of the effectiveness of internal
control over financial reporting of Royal Gold, Inc. (which is
included in Managements Report on Internal Control over
Financial Reporting) and the assessment of the effectiveness of
internal control over financial reporting incorporated in this
prospectus by reference to the Annual Report on
Form 10-K
for the year ended June 30, 2007 have been so incorporated
in reliance on the report of PricewaterhouseCoopers LLP, an
independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
8
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution.
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We will pay all expenses in connection with the issuance and
distribution of the securities being registered except selling
discounts and commissions of any selling securityholders. The
following table sets forth expenses and costs related to this
offering (other than underwriting discounts and commissions)
expected to be incurred with the issuance and distribution of
the securities described in this registration statement. All
amounts are estimates except for the SEC registration fee:
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SEC registration fee
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$
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*
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Legal fees
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25,000
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Accounting fees
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10,000
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Blue Sky filing fees and expenses
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10,000
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Printing and engraving expenses
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10,000
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Transfer Agent fees and expenses
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10,000
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Miscellaneous
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10,000
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Total
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$
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75,000
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* |
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Under SEC Rule 456(b) and Rule 457(r), the SEC
registration fee will be paid at the time of any particular
offering of securities under this registration statement and is
therefore not currently determinable. |
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Item 15.
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Indemnification
of Directors and Officers.
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Section 102 of the Delaware General Corporation Law
(DGCL), as amended, allows a corporation to
eliminate the personal liability of directors of a corporation
to the corporation or its stockholders for monetary damages for
a breach of fiduciary duty as a director, except where the
director breached his duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or knowingly violated a
law, authorized the payment of a dividend or approved a stock
repurchase in violation of Delaware law or obtained an improper
personal benefit.
Section 145 of the DGCL provides, among other things, that
a corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or
in the right of the corporation) by reason of the fact that the
person is or was a director, officer, agent or employee of the
corporation or is or was serving at the corporations
request as a director, officer, agent, or employee of another
corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys fees,
judgment, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such
action, suit or proceeding. The power to indemnify applies
(a) if such person is successful on the merits or otherwise
in defense of any action, suit or proceeding or (b) if such
person acted in good faith and in a manner he reasonably
believed to be in the best interest, or not opposed to the best
interest, of the corporation, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The power to indemnify applies to actions
brought by or in the right of the corporation as well, but only
to the extent of defense expenses (including attorneys
fees but excluding amounts paid in settlement) actually and
reasonably incurred and not to any satisfaction of judgment or
settlement of the claim itself, and with the further limitation
that in such actions no indemnification shall be made in the
event of any adjudication of negligence or misconduct in the
performance of duties to the corporation, unless the court
believes that in light of all the circumstances indemnification
should apply.
Section 174 of the DGCL provides, among other things, that
a director who willfully or negligently approves of an unlawful
payment of dividends or an unlawful stock purchase or redemption
may be held liable for such actions. A director who was either
absent when the unlawful actions were approved or dissented at
the time may avoid liability by causing his or her dissent to
such actions to be entered in the books containing
II-1
the minutes of the meetings of the board of directors at the
time such action occurred or immediately after such absent
director receives notice of the unlawful acts.
Royal Golds restated certificate of incorporation provides
that a director shall not be liable to Royal Gold or to its
stockholders for monetary damages for breach of fiduciary duty
as a director, except that a director shall be so liable
(i) for breach of the directors duty of loyalty to
Royal Gold or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) for unlawful payment of
dividend or unlawful stock repurchase or redemption as provided
under Section 174 of DGCL, or (iv) for any transaction
from which the director received an improper personal benefit.
Royal Golds amended and restated bylaws provide that Royal
Gold shall indemnify all of its directors and officers to the
full extent permitted by DGCL. Under such provisions, any person
who was made or threatened to be made a party to any threatened,
pending or completed action, suit proceeding by reason of the
fact that he or she is serving as a director or officer of Royal
Gold, or serving at Royal Golds request as a director,
officer, employee or agent of another entity will be indemnified
to the full extent permitted by the DGCL against expenses,
liability and loss (including attorneys fees) reasonably
incurred by such person.
Royal Golds amended and restated bylaws further provide
that it will pay expenses (including attorneys fees)
incurred by an officer or director in defending any proceeding
in advance of the final disposition of such proceeding upon
receipt of an undertaking by such director or officer to repay
all amounts advanced if it shall ultimately be determined that
such person is not entitled to be indemnified.
Royal Gold may purchase insurance on behalf of such person
against any liability asserted against and incurred by any
person who is or was a director, officer, employee or agent of
Royal Gold, or serving at Royal Golds request as such of
another entity, whether or not Royal Gold would have the power
to indemnify such person against such liability under the DGCL.
Royal Gold entered into indemnification agreements with each of
its current officers and directors. The indemnification
agreements cover, among other things, any and all expenses,
judgments, fines, penalties, and amounts paid in settlement by
the director or officer, provide for the advancement of expenses
incurred by the director or officer in connection with any
proceeding and obligate the director or officer to reimburse
Royal Gold for all amounts so advanced if it is subsequently
determined, as provided in the indemnification agreements, that
the director or officer is not entitled to indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers or persons controlling Royal Gold pursuant to Royal
Golds restated certificate of incorporation, amended and
restated bylaws or any indemnification agreement, Royal Gold has
been informed that in the opinion of the SEC such
indemnification is against public policy as expressed under the
Securities Act of 1933 and is therefore unenforceable.
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Exhibit No.
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Description
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1
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.1
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Form of Underwriting Agreement**
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3
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.1
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Restated Certificate of Incorporation, as amended (incorporated
by reference to Exhibits (c) and (b) to the
Companys Report on
Form 10-K
for the fiscal year ended December 31, 1980, filed on
May 19, 1981)
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3
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.2
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Amended and Restated Bylaws (filed as Exhibit 3.1 to the
Companys Current Report on
Form 8-K
on August 29, 2007 and incorporated herein by reference)
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3
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.3
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Form of Certificate of Designations of Mandatory Convertible
Preferred Stock**
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4
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.1
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Form of Common Stock Certificate (incorporated by reference to
Exhibit 4(b) to the Companys Registration Statement
on
Form S-1
(Registration
No. 2-84642),
filed on June 17, 1983)
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4
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.2
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First Amended and Restated Rights Agreement (filed as
Exhibit 4.1 to the Companys
Form 8-A/A
(Amendment No. 1) on September 10, 2007, and
incorporated herein by reference)
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4
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.3
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Form of Mandatory Convertible Preferred Stock Certificate**
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II-2
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Exhibit No.
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Description
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5
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.1
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Opinion of Hogan & Hartson LLP*
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12
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.1
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|
Statement of Computation of Ratios of Earnings to Fixed Charges
and Preferred Stock Dividends*
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23
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.1
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Consent of PricewaterhouseCoopers LLP*
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23
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.2
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Consent of Hogan & Hartson LLP (included in
Exhibit 5.1)*
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24
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.1
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Power of Attorney (included on signature page)*
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* |
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Filed herewith. |
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** |
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To be filed, if necessary, as an exhibit to a post-effective
amendment to this registration statement or as an exhibit to a
report pursuant to Section 13(a) or 15(d) of the Exchange
Act and incorporated herein by reference. |
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of this registration
statement as of the date the filed prospectus was deemed part of
and included in this registration statement; and
II-3
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5) or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x) for the
purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in this registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which the prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof; provided, however, that no
statement made in a registration statement or prospectus that is
part of this registration statement or made in a document
incorporated or deemed incorporated by reference into this
registration statement or prospectus that is part of this
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in this registration
statement or prospectus that was part of this registration
statement or made in any such document immediately prior to such
effective date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time will be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers or persons controlling the registrant
pursuant to the provisions set forth or described in
Item 15 of this registration statement, or otherwise, the
registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is therefore
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Denver, State of Colorado, on November 5, 2007.
ROYAL GOLD, INC.
Name: Tony Jensen
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Title:
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President, Chief Executive Officer and Director
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POWER OF
ATTORNEY
Each of the undersigned officers and directors of Royal Gold,
Inc., a Delaware corporation, hereby constitutes and appoints
Bruce C. Kirchhoff and Karen Gross, and each of them, as his or
her true and lawful attorney-in-fact and agent, severally, with
full power of substitution and resubstitution, in his or her
name and on his or her behalf, in any and all capacities, to
sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the
same, with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power of authority to do and perform each and every act and
thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he or she
might or could do in person, thereby ratifying and confirming
all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated on November 5, 2007.
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Signature
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Title
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/s/ Tony
Jensen
Tony
Jensen
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President, Chief Executive Officer and Director
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/s/ Stefan
Wenger
Stefan
Wenger
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Chief Financial Officer and Treasurer
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/s/ Stanley
Dempsey
Stanley
Dempsey
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Executive Chairman and Director
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/s/ John
W. Goth
John
W. Goth
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Director
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/s/ M.
Craig Haase
M.
Craig Haase
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Director
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/s/ S.
Oden Howell, Jr.
S.
Oden Howell, Jr.
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Director
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II-5
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Signature
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Title
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/s/ Merritt
E. Marcus
Merritt
E. Marcus
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Director
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/s/ James
W. Stuckert
James
W. Stuckert
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Director
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/s/ Donald
Worth
Donald
Worth
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Director
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II-6
EXHIBIT
INDEX
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|
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Exhibit No.
|
|
Description
|
|
|
1
|
.1
|
|
Form of Underwriting Agreement**
|
|
3
|
.1
|
|
Restated Certificate of Incorporation, as amended (incorporated
by reference to Exhibits (c) and (b) to the
Companys Report on
Form 10-K
for the fiscal year ended December 31, 1980, filed on
May 19, 1981)
|
|
3
|
.2
|
|
Amended and Restated Bylaws (filed as Exhibit 3.1 to the
Companys Current Report on
Form 8-K
on August 29, 2007 and incorporated herein by reference)
|
|
3
|
.3
|
|
Form of Certificate of Designations of Mandatory Convertible
Preferred Stock**
|
|
4
|
.1
|
|
Form of Common Stock Certificate (incorporated by reference to
Exhibit 4(b) to the Companys Registration Statement
on
Form S-1
(Registration
No. 2-84642),
filed on June 17, 1983)
|
|
4
|
.2
|
|
First Amended and Restated Rights Agreement (filed as
Exhibit 4.1 to the Companys
Form 8-A/A
(Amendment No. 1) on September 10, 2007, and
incorporated herein by reference)
|
|
4
|
.3
|
|
Form of Mandatory Convertible Preferred Stock Certificate**
|
|
5
|
.1
|
|
Opinion of Hogan & Hartson LLP*
|
|
12
|
.1
|
|
Statement of Computation of Ratios of Earnings to Fixed Charges
and Preferred Stock Dividends*
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers LLP*
|
|
23
|
.2
|
|
Consent of Hogan & Hartson LLP (included in
Exhibit 5.1)*
|
|
24
|
.1
|
|
Power of Attorney (included on signature page)*
|
|
|
|
* |
|
Filed herewith. |
|
** |
|
To be filed, if necessary, as an exhibit to a post-effective
amendment to this registration statement or as an exhibit to a
report pursuant to Section 13(a) or 15(d) of the Exchange
Act and incorporated herein by reference. |