DEPOSIT AGREEMENT
DATED AS OF ____________________, 19__
AMONG
ROYAL GOLD, INC.
A DELAWARE CORPORATION,
____________________, A [NATIONAL BANKING ASSOCIATION],
AND THE HOLDERS
FROM TIME TO TIME OF THE DEPOSITARY SHARES
DESCRIBED HEREIN.
WHEREAS it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of _____% Preferred
Stock, Series __, $0.01 par value, of ROYAL GOLD, INC. with the
Depositary (as hereinafter defined) for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts (as
hereinafter defined) evidencing Depositary Shares (as hereinafter
defined) in respect of the Stock (as hereinafter defined) so
deposited;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this
Deposit Agreement and the Receipts:
"Certificate" shall mean the certificate of designations filed
with the Secretary of State of Delaware establishing the Stock as a
series of preferred stock of the Company.
"Company" shall mean Royal Gold, Inc., a Delaware corporation,
and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended
or supplemented from time to time.
"Depositary" shall mean ____________________, a [national banking
association], and any successor as Depositary hereunder.
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"Depositary Shares" shall mean Depositary Shares, each
representing a [one-half] interest in a share of the Stock and
evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary at
____________________, ____________________, ____________________, at
which at any particular time its depositary receipt business shall be
administered.
"Receipt" shall mean one of the depositary receipts issued
hereunder, whether in definitive or temporary form.
"Record Holder" as applied with respect to a Depositary Share
shall mean the person in whose name a Receipt evidencing such
Depositary Share is registered on the books of the Depositary
maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein
provided.
"Stock" shall mean shares of the Company's _____% Preferred
Stock, Series __, $0.01 par value.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed and shall be
substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Pending the preparation of
definitive Receipts, the Depositary, upon the written order of
the Company delivered in compliance with Section 2.02, shall execute
and deliver temporary Receipts which are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of
the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations
as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued,
the Company and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of
definitive
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Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at an office
described in the third paragraph of Section 2.02, without charge to
the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of
Depositary Shares as represented by the surrendered temporary Receipt
or Receipts. Such exchange shall be made at the Company's expense and
without any charge therefor. Until so exchanged, the temporary
Receipts shall in all respects be entitled to the same benefits under
this Deposit Agreement, and with respect to the Stock, as definitive
Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; provided,
that such signature may be a facsimile if a Registrar for the Receipts
(other than the Depositary) shall have been appointed and such
Receipts are counter-signed by manual signature of a duly authorized
officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for
any purpose unless it shall have been executed manually by a duly
authorized officer of the Depositary or, if a Registrar for the
Receipts (other than the Depositary) shall have been appointed, by
facsimile signature of a duly authorized officer of the Depositary and
countersigned manually by a duly authorized officer of such Registrar.
The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Company
or the Depositary or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any
securities exchange upon which the Stock, the Depositary Shares or the
Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of
transfer, shall be transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that until
transfer of a Depositary Share shall be registered on the books of the
Depositary as provided in Section 2.04, the Depositary may,
notwithstanding any notice to the contrary, treat the Record
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Holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distributions of
dividends or other distributions or to any notice provided for in
this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of
this Deposit Agreement, the Company may from time to time deposit
shares of Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be
deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement,
in form satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with
the provisions of this Deposit Agreement, and together with a written
order of the Company directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in such
order a Receipt or Receipts for the number of Depositary Shares
relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary
shall determine.
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and
upon recordation of the Stock so deposited on the books of the Company
in the name of the Depositary or its nominee, the Depositary, subject
to the terms and conditions of this Deposit Agreement, shall execute
and deliver, to or upon the order of the person or persons named in
the written order delivered to the Depositary referred to in the first
paragraph of this Section, a Receipt or Receipts for the number of
Depositary Shares relating to the Stock so deposited and registered in
such name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary
may designate. Delivery at other offices shall be at the risk and
expense of the person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or
other distributions of Stock, if any, there shall be deposited
hereunder not more than ____________________ shares of Stock.
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SECTION 2.03. Redemption of Stock. Whenever the Company shall
elect to redeem shares of Stock in accordance with the provisions of
the Certificate, it shall (unless otherwise agreed in writing with the
Depositary) mail notice to the Depositary of such proposed redemption,
by first class mail, postage prepaid not less than 40 or more than 70
days prior to the date fixed for redemption of Stock in accordance
with Section [3(b)] of the Certificate. On the date of such
redemption, provided that the Company shall then have paid in full to
the Depositary the redemption price of the Stock to be redeemed, plus
any accrued and unpaid dividends thereon, the Depositary shall redeem
the Depositary Shares relating to such Stock. The Depositary shall
mail notice of such redemption and the proposed simultaneous
redemption of the number of Depositary Shares relating to the Stock to
be redeemed, by first-class mail, postage prepaid, not less than 30
and not more than 60 days prior to the date fixed for redemption of
such Stock and Depositary Shares (the "Redemption Date"), to the
Record Holders of the Depositary Shares to be so redeemed, at the
addresses of such holders as they appear on the records of the
Depositary; but neither failure to mail any such notice to one or more
such holders nor any defect in any notice to one or more such holders
shall affect the sufficiency of the proceedings for redemption as to
other holders. Each such notice shall state: (i) the Redemption Date;
(ii) the number of Depositary Shares to be redeemed and, if less than
all the Depositary Shares held by any such holder are to be redeemed,
the number of such Depositary Shares held by such holder to be so
redeemed; (iii) the redemption price; (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for
payment of the redemption price; and (v) that dividends in respect of
the Stock underlying the Depositary Shares to be redeemed will cease
to accrue and accumulate at the close of business on such Redemption
Date. In case less than all the outstanding Depositary Shares are to
be redeemed, the Depositary Shares to be so redeemed shall be selected
by lot, pro rata or such other method as may be determined by the
Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Company shall have failed to
redeem the shares of Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph) all
dividends in respect of the Depositary Shares so called for redemption
shall cease to accrue and accumulate, the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price)
shall, to the extent of such
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Depositary Shares, cease and terminate and, upon surrender in
accordance with such notice of the Receipts evidencing any such
Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be redeemed
by the Depositary at a redemption price per Depositary Share equal to
the proportionate part of the redemption price per share paid in
respect of the shares of Stock plus all money and other property, if
any, paid with respect to such Depositary Shares, including all
amounts paid by the Company in respect of dividends which on the
Redemption Date have accumulated on the shares of Stock to be so
redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of
such Receipt upon its surrender to the Depositary, together with the
redemption payment, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
SECTION 2.04. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary
shall register on its books from time to time transfers of Depositary
Shares upon any surrender of the Receipt or Receipts evidencing such
Depositary Shares by the holder in person or by duly authorized
attorney, properly endorsed or accompanied by a properly executed
instrument of transfer. Thereupon the Depositary shall execute a new
Receipt or Receipts evidencing the same aggregate number of Depositary
Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender
of Depositary Shares and Withdrawal of Stock. Upon surrender of a
Receipt or Receipts at the Depositary's Office or at such other
offices as it may designate for the purpose of effecting a split-up or
combination of such Receipt or Receipts, and subject to the terms and
conditions of this Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts in the denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
Any holder of Depositary Shares may withdraw the number of whole
shares of Stock underlying such Depositary Shares and all money and
other property, if any, underlying such Depositary Shares by
surrendering Receipts evidencing such Depositary Shares at the
Depositary's Office or at such
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other offices as the Depositary may designate for such withdrawals.
Thereafter, without unreasonable delay, the Depositary shall deliver
to such holder, or to the person or persons designated by such holder
as hereinafter provided, the number of whole shares of Stock and all
money and other property, if any, underlying the Depositary Shares so
surrendered for withdrawal, but holders of such whole shares of Stock
will not thereafter be entitled to deposit such Stock hereunder or to
receive Receipts evidencing Depositary Shares therefor. If a Receipt
delivered by a holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares relating to
other than a number of whole shares of Stock, the Depositary shall at
the same time, in addition to such number of whole shares of Stock and
such money and other property, if any, to be so withdrawn, deliver to
such holder, or (subject to Section 3.02) upon his order, a new
Receipt evidencing such excess number of Depositary Shares. Delivery
of the Stock and money and other property being withdrawn may be made
by delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the Record
Holder of the Depositary Shares evidenced by the Receipts being
surrendered for withdrawal of Stock, such holder shall execute and
deliver to the Depositary a written order so directing the Depositary,
and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed
instrument of transfer.
Delivery of the Stock and money and other property, if any,
underlying the Depositary Shares surrendered for withdrawal shall be
made by the Depositary at the Depositary's Office, except that, at the
request, risk and expense of the holder surrendering such Depositary
Shares and for the account of such holder, such delivery may be made
at such other place as may be designated by such holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the
execution and delivery, registration of transfer, split-up,
combination, surrender or exchange of any Receipt, the Depositary, any
of the Depositary's Agents or the Company may require payment to it of
a sum sufficient for the payment (or, in the event that the Depositary
or the Company shall have made such payment, the reimbursement to it)
of any charges or expenses payable by the holder of a Receipt pursuant
to Section 5.07, may
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require the production of evidence satisfactory to it as to the
identity and genuineness of any signature and may also require
compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit
Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding
Depositary Shares may be suspended (i) during any period when the
register of stockholders of the Company is closed or (ii) if any such
action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time
because of any requirement of law or of any government or governmental
body or commission or under any provision of this Deposit Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion
may execute and deliver a Receipt of like form and tenor in exchange
and substitution for such mutilated Receipt, or in lieu of and in
substitution for such destroyed, lost or stolen Receipt, upon (i) the
filing by the holder thereof with the Depositary of evidence
satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, or the authenticity thereof and of his or her ownership
thereof and (ii) the furnishing of the Depositary with reasonable
indemnification satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any
Depositary's Agent shall be canceled by the Depositary. Except as
prohibited by applicable law or regulation, the Depositary is
authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any holder of a Depositary Share may be required from time to time to
file such proof of residence, or other matters or other information,
to execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem
necessary or proper. The Depositary or the Company may withhold the
delivery, or delay the registration of
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transfer, redemption or exchange, of any Depositary Share or the
withdrawal of any Stock underlying Depositary Shares or the
distribution of any dividend or other distribution or the sale of any
rights or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Depositary Shares shall be obligated to make payments to
the Depositary of certain charges and expenses, as provided in Section
5.07. Registration of transfer of any Depositary Share or any
withdrawal of Stock and delivery of all money or other property, if
any, underlying such Depositary Share may be refused until any such
payment due is made, and any dividends or other distributions may be
withheld or all or any part of the Stock or other property relating to
such Depositary Shares and not theretofore sold may be sold for the
account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends or other
distributions or the proceeds of any such sale may be applied to any
payment of such charges or expenses, the holder of such Depositary
Share remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representation and
warranty shall survive the deposit of the Stock and the issuance of
the Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to the
Record Holders of Depositary Shares on the record date fixed pursuant
to Section 4.04 such amounts of such dividend or distribution as are,
as nearly as practicable, in proportion to the respective numbers of
Depositary Shares held by such holders; provided, however, that in
case the Company or the Depositary shall be required to withhold and
shall withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes, the amount made
available for distribution or distributed in respect of Depositary
Shares shall be reduced accordingly. Fractions will be rounded down to
the nearest whole cent.
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SECTION 4.02. Distributions Other than Cash. Whenever the
Depositary shall receive any distribution other than cash on the
Stock, the Depositary shall, subject to Sections 3.01 and 3.02,
distribute to the Record Holders of Depositary Shares on the record
date fixed pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares held by such
holders, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution. If in the opinion of
the Depositary such distribution cannot be made proportionately among
such Record Holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount on
account of taxes or governmental charges) the Depositary deems, after
consultation with the Company, such distribution not to be feasible,
the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or private
sale) of the securities or property thus received, or any part
thereof, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Sections
3.01 and 3.02, be distributed or made available for distribution, as
the case may be, by the Depositary to the Record Holders of Depositary
Shares entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any
distribution of such securities unless the Company shall have provided
an opinion of counsel to the effect that such securities have been
registered under the Securities Act of 1933 or do not need to be
registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company
any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other
nature, such rights, preferences or privileges shall in each such
instance be made available by the Depositary to the Record Holders of
Depositary Shares in such manner as the Depositary may determine,
either by the issue to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method as may
be approved by the Depositary in its discretion with the approval of
the Company; provided, however, that (i) if at the time of issue or
offer of any such rights, preferences or privileges the Depositary
determines that it is not lawful or (after consultation with the
Company) not feasible to make such rights, preferences or privileges
available to holders of Depositary Shares by the issue of warrants or
otherwise, or
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(ii) if and to the extent so instructed by holders of Depositary
Shares who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval
of the Company, in any case where the Depositary has determined that
it is not feasible to make such rights, preferences or privileges
available), may, if applicable laws or the terms of such rights,
preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of
any such sale shall, subject to Sections 3.01 and 3.02, be distributed
by the Depositary to the Record Holders of Depositary Shares entitled
thereto as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of such
rights, preferences or privileges unless the Company shall have
provided an opinion of counsel to the effect that such rights,
preferences or privileges have been registered under the Securities
Act of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate is
required in order for holders of Depositary Shares to be offered or
sold the securities to which such rights, preferences or privileges
relate, the Company agrees with the Depositary that it will file
promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best
efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such
holders to exercise such rights, preferences or privileges. In no
event shall the Depositary make available to the holders of Depositary
Shares any right, preference or privilege to subscribe for or to
purchase any securities unless and until such a registration statement
shall have become effective, or unless the offering and sale of such
securities to such holders are exempt from registration under the
provision of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is
required in order for such rights, preferences or privileges to be
made available to the holders of Depositary Shares, the Company agrees
with the Depositary that the Company will use its best efforts to take
such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights,
preferences or privileges.
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SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date
for Holders of Depositary Shares. Whenever any cash dividend or other
cash distribution shall become payable or any distribution other than
cash shall be made, or if rights, preferences or privileges shall at
any time be offered, with respect to the Stock, or whenever the
Depositary shall receive notice of any meeting at which holders of
Stock are entitled to vote, or of which holders of Stock are entitled
to notice, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the
holders of Depositary Shares who shall be entitled to receive a
distribution in respect of such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or
to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to receive notice of such meeting.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of the Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
Record Holders of Depositary Shares a notice which shall contain (i)
such information as is contained in such notice of meeting and (ii) a
statement informing holders of Depositary Shares that they may
instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock underlying their respective
Depositary Shares and a brief statement as to the manner in which such
instructions may be given. Upon the written request of the holders of
Depositary Shares on the record date established in accordance with
Section 4.04, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set
forth in such requests, the maximum number of whole shares of Stock
underlying the Depositary Shares as to which any particular voting or
consent instructions are received. The Company hereby agrees to take
all action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a
Depositary Share, the Depositary will refrain from voting (but, at its
discretion, not from appearing at any meeting with respect to such
Stock unless directed to the contrary by the holders of all the
Depositary Shares) to the extent of the Stock underlying the
Depositary Shares.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or
liquidation value, split-up, combination or any other reclassification
of the Stock, or upon any recapitalization, reorganization, merger,
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amalgamation or consolidation affecting the Company or to which it is
a party, the Depositary may in its discretion, with the approval of,
and shall upon the instructions of, the Company, and (in either case)
in such manner as the Depositary may deem equitable, (i) make such
adjustments in (a) the fraction of an interest in one share of Stock
underlying one Depositary Share and (b) the ratio of the redemption
price per Depositary Share to the redemption price of a share of the
Stock, in each case as may be necessary fully to reflect the effects
of such change in par or liquidation value, split-up, combination or
other reclassification of the Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation and (ii) treat
any securities which shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Stock as new deposited
securities so received in exchange for or upon conversion of or in
respect of such Stock. In any such case the Depositary may in its
discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such
new deposited securities.
SECTION 4.07. Delivery of Reports. The Depositary will forward
to Record Holders of Receipts, at their respective addresses
appearing in the Depositary's books, all notices, reports and
communications received from the Company which are delivered to the
Depositary and which the Company is required to furnish to the holders
of Stock or Receipts.
SECTION 4.08. List of Holders. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as
of a recent date, of the names, addresses and holdings of Depositary
Shares of all persons in whose names Depositary Shares are registered
on the books of the Depositary or Registrar, as the case may be.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit
Agreement, the Depositary shall maintain at the Depositary's Offices,
or at any Registrar's Office, at which the Depositary shall have
complete access to all books and records maintained on the Company's
behalf, facilities for the execution and delivery, surrender and
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exchange of Receipts and the registration and registration of transfer
of Depositary Shares, and at the offices of the Depositary's Agents,
if any, facilities for the delivery, surrender and exchange of
Receipts and the registration of transfer of Depositary Shares, all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for
the registration and registration of transfer of Depositary Shares,
which books at all reasonable times shall be open for inspection by
the Record Holders of Depositary Shares; provided, that any such
holder requesting to exercise such right shall certify to the
Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of Depositary
Shares.
The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance
of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the Stock underlying such Depositary Shares shall be listed on the New
York Stock Exchange, the Depositary may, with the approval of the
Company, appoint a Registrar for registration of such Receipts or
Depositary Shares in accordance with any requirements of such
Exchange. Such Registrar (which may be the Depositary if so permitted
by the requirements of such Exchange) may be removed and a substitute
registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or
such Stock are listed on one or more other stock exchanges, the
Depositary will, at the request of the Company, arrange such
facilities for the delivery,registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock exchange
regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, any Registrar or the Company.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall incur any liability to any holder or any
Depositary Share if by reason of any provision of any present or
future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the
Depositary, any Depositary's Agent or any Registrar, by reason of any
provision, present or future, of the Company's Certificate of
Incorporation (including the Certificate) or by reason of any act of
God or war or other circumstance beyond the control of the relevant
party, the Depositary,
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any Depositary's Agent, any Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing which
the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any
Registrar or the Company incur any liability to any holder of a
Depositary Share (i) by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing which the terms
of this Deposit Agreement provide shall or may be done or performed,
or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of
any such exercise or failure to exercise discretion not caused as
aforesaid, if caused by the gross negligence or willful misconduct of
the party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, any Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any
obligation or shall be subject to any liability under this Deposit
Agreement to holders of Depositary Shares other than for its
negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of
the Stock, the Depositary Shares or the Receipts which in its opinion
may involve it in expense or liability unless indemnity satisfactory
to it against all expense and liability be furnished as often as may
be required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable for any action or any
failure to act by it in reliance upon the written advice of legal
counsel or accountants, or information from any person presenting
Stock for deposit, any holder of a Depositary Share or any other
person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar
and the Company may each rely and shall each be protected in acting
upon any written notice, request, direction or other document believed
by it to be genuine and to have been signed or presented by the proper
party or parties.
The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the shares of Stock or for the
manner or effect of any such vote, as long as any such action or
non-action is in good faith. The Depositary undertakes, and any
Registrar shall
-15-
be required to undertake, to perform such duties and only such duties
as are specifically set forth in this Deposit Agreement, and no
implied covenants or obligations shall be read into this Deposit
Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company against any liability which may arise out
of acts performed or omitted by the Depositary or its agents due to
its or their negligence or bad faith. The Depositary, the
Depositary's Agents, any Registrar and the Company may own and deal in
any class of securities of the Company and its affiliates and in
Depositary Shares. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time
resign as Depositary hereunder by notice of its election so to do
delivered to the Company, such resignation to take effect upon the
appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to
take effect upon the appointment of a successor Depositary and its
acceptance of such appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time resign
or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a
successor Depositary, which shall be a bank or trust company having
its principal office in the United States of America and having a
combined capital and surplus of at least $50,000,000. If no successor
Depositary shall have been so appointed within 60 days after delivery
of such notice, the resigning or removed Depositary may petition any
court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to
its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor and for
all purposes shall be the Depositary under this Deposit Agreement, and
such predecessor, upon payment of all sums due it and on the written
request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all
right, title and interest in the Stock and any moneys or property held
hereunder to such
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successor and shall deliver to such successor a list of the Record
Holders of all outstanding Depositary Shares. Any successor
Depositary shall promptly mail notice of its appointment to the Record
Holders of Depositary Shares.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act.
Such successor Depositary may authenticate the Receipts in the name of
the predecessor Depositary or in the name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees
that it will transmit to the Depositary all notices, reports and
communications (including without limitation financial statements)
required by law, the rules of any national securities exchange upon
which the Stock, the Depositary Shares or the Receipts are listed or
by the Company's Certificate of Incorporation (including the
Certificate) to be furnished by the Company to holders of the Stock.
SECTION 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any loss, liability or
expense (including the costs and expenses of defending itself) which
may arise out of (i) acts performed or omitted in connection with this
Deposit Agreement and the Depositary Shares (a) by the Depositary, any
Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of
negligence, willful misconduct or bad faith on the respective parts of
any such person or persons, or (b) by the Company or any of its
agents, or (ii) the offer, sale or registration of the Depositary
Shares or the Stock pursuant to the provisions hereof. The
obligations of the Company set forth in this Section 5.06 shall
survive any succession of any Depositary, Registrar or Depositary's
Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from
the existence of the depositary arrangements. The Company shall pay
all charges of the Depositary in connection with the initial deposit
of the Stock and the initial issuance of the Receipts, any redemption
of the Stock at the option of the Company and any withdrawals of Stock
by holders of Depositary Shares. All other transfer and other taxes
and governmental charges shall be at the expense of holders of
Depositary Shares. If, at the request of a holder of a Depositary
Share, the
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Depositary incurs charges or expenses for which it is not otherwise
liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary, any
Depositary's Agent hereunder and any Registrar (including, in each
case, fees and expenses of counsel) incident to the performance of
their respective obligations hereunder will be paid upon consultation
and agreement between the Depositary and the Company as to the amount
and nature of such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Company once every three
months or at such other intervals as the Company and the Depositary
may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to
time be amended by agreement between the Company and the Depositary in
any respect which they may deem necessary or desirable; provided,
however, that no such amendment which shall materially and adversely
alter the rights of the existing holders of Depositary Shares shall be
effective unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Depositary Share at the
time any such amendment becomes effective shall be deemed, by
continuing to hold such Depositary Share, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended
thereby.
SECTION 6.02. Termination. This Deposit Agreement may be
terminated by the Company or the Depositary only after (i) all
outstanding Depositary Shares shall have been redeemed and any
accumulated and unpaid dividends on the Stock represented by the
Depositary Shares, together with all other moneys and property, if
any, to which holders of the related Receipts are entitled under the
terms of such Receipts or this Deposit Agreement, have been paid or
distributed as provided in this Deposit Agreement or provision
therefor has been duly made pursuant to Section 2.03 or (ii) there
shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the
holders of Receipts pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under
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this Deposit Agreement except for its obligations to the Depositary,
any Depositary's Agents and any Registrar under Sections 5.06 and
5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed an original, but all such
counterparts taken together shall constitute one and the same
instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and
their respective successors hereunder, and shall not be deemed to give
any legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more
of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall
be deemed to have been duly given if personally delivered or sent by
mail or telegram or telex confirmed by letter, addressed to the
Company at ____________________, ____________________,
____________________, to the attention of the General Counsel, or at
any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have
been duly
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given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to such Record Holder at the address
of such Record Holder as it appears on the books of the Depositary,
or if such holder shall have filed with the Depositary a written
request that notices intended for such holder be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall
be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a
telegram or telex message) is deposited, postage prepaid, in a post
office letter box. The Depositary or the Company may, however, act
upon any telegram or telex message received by it from the other or
from any holder of a Depositary Share, notwithstanding that such
telegram or telex message shall not subsequently be confirmed by
letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time
to time, with the prior approval of the Company, appoint Depositary's
Agents to act in any respect for the Depositary for the purposes of
this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such
Depositary's Agents. The Depositary will notify the Company of any
such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
Depositary Shares from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof
and of the Receipts evidencing such Depositary Shares by acceptance of
delivery thereof.
SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF
AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF [NEW YORK].
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the
Depositary's Agents and shall be open to inspection during business
hours at the Depositary's Office and the respective offices of the
Depositary's Agents, if any, by any holder of a Depository Share.
SECTION 7.09. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of Receipt set forth in
Exhibit A hereto have been inserted for
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convenience only and are not to be regarded as part of this Deposit
Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Deposit Agreement as of the day and year first above set
forth, and all holders of Depositary Shares shall become parties
hereto by and upon acceptance by them of delivery of Receipts
evidencing such Depositary Shares and issued in accordance with the
terms hereof.
ROYAL GOLD, INC.
By______________________________
[Name and Title]
[_______________________________]
By______________________________
Authorized Officer
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EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
[GENERAL FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING ____________________ PREFERRED STOCK
ROYAL GOLD, INC.
Incorporated under the laws of the State of Delaware
This Depositary Receipt is transferable
in the City of ____________________
______________________________, as Depositary, (the
"Depositary"), hereby certifies that ______________________________ is
the registered owner of ____________________ Depositary Shares
("Depositary Shares"), each Depositary Share representing
____________________) of one share of ____________________ Preferred
Stock, Series __, par value $0.01 per share (the "Stock"), of Royal
Gold, Inc., a Delaware corporation (the "Company"), on deposit with
the Depositary, subject to the terms and entitled to the benefits of
the Deposit Agreement dated as of ____________________, 199_ (the
"Deposit Agreement"), between the Company, the Depositary and all
holders from time to time of Depositary Receipts. By accepting this
Depositary Receipt the holder hereof becomes a party to and agrees to
be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any
purpose or entitled to any benefits under the Deposit Agreement unless
it shall have been executed by the Depositary by the manual signature
of a duly authorized officer or, if executed in facsimile by the
Depositary,
A-1
countersigned by a Registrar in respect of the Depositary Receipts by
the manual signature of a duly authorize officer thereof.
Dated: Depositary
By: __________________________
Authorized Officer
Registrar
By: __________________________
Authorized Officer
A-2
