UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ROYAL GOLD, INC.
(Exact name of registrant as specified in
its charter)
Delaware |
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84-0835164 |
(State or other jurisdiction of incorporation or
organization) |
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(IRS Employer Identification No.) |
1660 Wynkoop Street, Suite 1000
Denver, CO |
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80202 |
(Address of Principal Executive Offices) |
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(Zip Code) |
ROYAL GOLD, INC. 2015 OMNIBUS LONG-TERM
INCENTIVE PLAN
(Full title of the plan)
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Copy to: |
Bruce C. Kirchhoff
Vice President, General Counsel and Secretary
Royal Gold, Inc.
1660 Wynkoop Street, Suite 1000
Denver, CO 80202
(303) 573-1660 |
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Paul Hilton, Esq.
Hogan Lovells US LLP
One Tabor Center, Suite 1500
1200 Seventeenth Street
Denver, Colorado 80202 |
(Name, address and telephone number, including area code,
of agent for service) |
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(303) 899-7300 |
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one)
Large
accelerated filer x |
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Accelerated
filer ¨ |
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Non-accelerated
filer ¨ |
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Smaller Reporting
Company ¨ |
(do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered |
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Amount
to be
registered (1) |
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Proposed
maximum
offering price
per share (2) |
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Proposed
maximum
aggregate offering
price (2) |
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Amount of
registration
fee (3) |
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Common Stock, par value $0.01 per
share (“Common Stock”) issuable
under the 2015 Omnibus Long-
Term Incentive Plan |
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2,500,000 |
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$ 29.27 |
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$ 73,175,000.00 |
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$ 7,368.73 |
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| (1) | In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”),
this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit
plan described herein. |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under
the Securities Act, based upon the average of the high and low sales prices reported for the registrant’s common stock on
NASDAQ Global Select Market on January 29, 2016. |
| (3) | Calculated pursuant to Section 6(b) of the Securities Act. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
The information specified in Item 1 and Item 2 of
Part I of Form S-8 is omitted from this registration statement on Form S-8 in accordance with the provisions of Rule 428
under the Securities Act, and the introductory note to Part I of Form S-8. The documents containing the information specified
in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this registration statement
as specified by Rule 428(b)(1) under the Securities Act. Such documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission (the “Commission”)
allows us to “incorporate by reference” in this registration statement the information we file with them, which means
that we can disclose important information by referring to those reports. Accordingly, the following documents and all other documents
subsequently filed with the Commission by Royal Gold, Inc. (the “Registrant”) pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”), prior to the filing of a post-effective
amendment that indicates that all the shares of common stock offered hereby have been sold or that deregisters all such shares
of common stock then remaining unsold, shall be deemed incorporated by reference herein and to be a part of this registration statement
from the date of filing of such documents:
(a) The Registrant’s Annual Report on Form 10-K
for its fiscal year ended June 30, 2015, filed with the Commission on August 6, 2015;
(b) The Registrant’s Quarterly Report on Form 10-Q
for the quarter ended September 30, 2015, filed November 5, 2015;
(c) The Registrant’s Quarterly Report on Form 10-Q
for the quarter ended December 31, 2015, filed February 4, 2016;
(d) The Registrant’s Current Reports on Form 8-K
as filed July 10, 2015, July 21, 2015, August 6, 2015, September 23, 2015, October 30, 2015, November 12, 2015, November 13, 2015,
November 16, 2015, November 24, 2015, January 7, 2016 and February 4, 2016 (except for such reports or portions thereof which were
deemed to be furnished and not filed); and
(e) The description of the Registrant’s Common Stock
contained in the Registrant’s Registration Statement on Form S-3/ASR filed November 5, 2007, and any amendment
or report filed with the Commission for the purpose of updating such description.
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference shall be deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained in any other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such prior statement. Any such statement so modified or superseded shall not be
deemed to constitute a part of this registration statement, except as so modified or superseded. Documents or information deemed
to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this
registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article TENTH of the Registrant’s Restated Certificate
of Incorporation, as amended (the “Certificate”), and Article VI of the Registrant’s amended and restated
bylaws (the “Bylaws”) confer indemnification or similar rights on the Registrant’s officers and directors.
Section 102 of the Delaware General Corporation Law (the
“DGCL”) allows a corporation to eliminate the personal liability of a director of a corporation to the corporation
or to any of its stockholders for monetary damage for a breach of his fiduciary duty as a director, except in the case 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 the DGCL or obtained an improper personal benefit.
Article TENTH of the Certificate eliminates directors’ personal liability in accordance with such Section 102 of
the DGCL.
Section 145 of the DGCL authorizes corporations to indemnify
directors and officers against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably
incurred in connection with civil, criminal, administrative, or investigative actions, suits or proceedings to which such persons
are parties or threatened to be made parties by reason of their corporate position (other than actions by or in the right of the
corporation to procure a judgment in its favor — so called “derivative suits”) if such persons acted in good
faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. With respect to derivative
suits, Section 145 prescribes a similar standard of care but limits the available indemnification to expenses (including attorneys’
fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit and further provides
that if the derivative suit results in a judgment that the person seeking indemnification is liable to the corporation, no such
indemnification is to be made without court approval. Section 145(f) of the DGCL also specifically permits corporations to provide
their officers, directors, employees and agents with indemnification and advancement of expenses in addition to those specifically
required and/or permitted to be provided pursuant to other provisions of Section 145.
Under the provisions of the Bylaws, each person who is threatened
to be made a party to any threatened, pending or completed action, suit or other proceeding (whether civil, criminal, administrative
or investigative) by reason of the fact that such person is or was a director or officer of the Registrant, or is or was serving
at the request of the Registrant for another entity, shall be indemnified to the full extent permitted by the DGCL against all
expenses (including attorneys’ fees), judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement actually
and reasonably incurred by such person in connection with such proceeding, including to the maximum extent permitted under the
DGCL any proceeding by or in the right of the Registrant. The rights to indemnification conferred pursuant to the Bylaws are contract
rights and include the right to receive payment for reasonable expenses of defending a proceeding prior to its final disposition,
provided that such advance payment shall be made only upon receipt by the Registrant of an undertaking to the effect that all amounts
so advanced will be repaid if it is ultimately found that the party who received such amounts is not entitled to be indemnified.
The effect of providing that the indemnification rights are contract rights is to permit indemnified individuals to enforce such
provisions directly against the Registrant. In addition, the Bylaws authorize the Registrant to provide other permissible indemnification,
and the Registrant has indemnification agreements in place with all of its officers and directors. Finally, the Bylaws provide
that the Registrant may maintain insurance to protect itself and any of its officers, directors, employees or agents, in such amounts
as the board of the Registrant may deem appropriate, against any expense, liability or loss, even if the Registrant would not have
the power to indemnify such person against such expense, liability or loss under the DGCL. The Registrant currently maintains Director
& Officer insurance to cover against liabilities incurred by directors and officers of the Registrant acting in their capacity
as such.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. |
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Description of Exhibit |
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4.1 |
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Royal Gold, Inc. 2015 Omnibus Long-Term Incentive Plan (filed as Exhibit 10.1 to the Form 8-K of Royal Gold, Inc. filed on November 16, 2015 and incorporated by reference herein). |
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4.2 |
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Amended and Restated Bylaws of Royal Gold, Inc. (filed as Exhibit 3.1 to the Form 8-K of Royal Gold, Inc., filed on September 4, 2014 and incorporated by reference herein). |
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4.3 |
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Restated Certificate of Incorporation of Royal Gold, Inc. (filed as Exhibit 3.1 to the Form 10-Q of Royal Gold, Inc., filed on February 8, 2008 and incorporated by reference herein). |
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5.1 |
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Opinion of Hogan Lovells US LLP with respect to the legality of the common stock registered hereby. |
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23.1 |
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Consent of Ernst & Young, Independent Registered Public Accounting Firm, with respect to the Registrant. |
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23.2 |
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Consent of Hogan Lovells US LLP (contained in its opinion filed herewith as Exhibit 5.1). |
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24.1 |
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Power of Attorney (included on the signature page to this registration statement). |
Item 9. Undertakings.
(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; (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 Exchange Act that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act, 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.
(b) The undersigned registrant hereby
undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act, (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in this 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 shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to
the foregoing provisions, 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 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 and will be governed by the final adjudication of such issue.
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-8
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 this 4th day of February, 2016.
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ROYAL GOLD, INC. |
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By: |
/s/ Stefan Wenger |
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Name: |
Stefan Wenger |
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Title: |
Chief Financial Officer and Treasurer
(Principal Financial Officer) |
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Tony Jensen and Stefan Wenger, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to sign, execute and file with the Securities
and Exchange Commission (or any other governmental or regulatory authority), for us and in our names in the capacities indicated
below, a registration statement on Form S-8 (including all amendments thereto) with all exhibits and any and all documents
required to be filed with respect thereto, granting unto said attorneys-in-fact and agents and each of them, full power and authority
to do and to perform each and every act and thing necessary or desirable to be done in and about the premises in order to effectuate
the same as fully to all intents and purposes as he himself might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act, this registration statement has been signed by the following persons in the capacities and on the date indicated.
Signature |
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Title |
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Date |
/s/ Stefan Wenger |
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Chief Financial Officer and Treasurer |
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February 4, 2016 |
Stefan Wenger |
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(Principal Financial Officer) |
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/s/ Tony Jensen |
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Director, President and Chief Executive Officer |
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February 4, 2016 |
Tony Jensen |
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(Principal Executive Officer) |
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/s/ William M. Hayes |
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Chairman |
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February 4, 2016 |
William M. Hayes |
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/s/ Gordon J. Bogden |
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Director |
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February 4, 2016 |
Gordon J. Bogden |
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/s/ M. Craig Haase |
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Director |
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February 4, 2016 |
M. Craig Haase |
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/s/ C. Kevin McArthur |
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Director |
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February 4, 2016 |
C. Kevin McArthur |
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/s/ Jamie C. Sokalsky |
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Director |
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February 4, 2016 |
Jamie C. Sokalsky |
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/s/ Christopher M.T. Thompson |
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Director |
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February 4, 2016 |
Christopher M.T. Thompson |
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/s/ Ronald J. Vance |
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Director |
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February 4, 2016 |
Ronald J. Vance |
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EXHIBIT INDEX
Exhibit No. |
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Description of Exhibit |
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4.1 |
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Royal Gold, Inc. 2015 Omnibus Long-Term Incentive Plan (filed as Exhibit 10.1 to the Form 8-K of Royal Gold, Inc. filed on November 16, 2015 and incorporated by reference herein) |
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4.2 |
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Amended and Restated Bylaws of Royal Gold, Inc. (filed as Exhibit 3.1 to the Form 8-K of Royal Gold, Inc., filed on September 4, 2014 and incorporated by reference herein). |
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4.3 |
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Restated Certificate of Incorporation of Royal Gold, Inc. (filed as Exhibit 3.1 to the Form 10-Q of Royal Gold, Inc., filed on February 8, 2008 and incorporated by reference herein). |
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5.1* |
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Opinion of Hogan Lovells US LLP with respect to the legality of the common stock registered hereby. |
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23.1* |
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Consent of Ernst & Young, Independent Registered Public Accounting Firm, with respect to the Registrant. |
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23.2* |
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Consent of Hogan Lovells US LLP (contained in its opinion filed herewith as Exhibit 5.1). |
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24.1* |
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Power of Attorney (included on the signature page to this registration statement). |
* Filed herewith.
Exhibit 5.1
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Hogan Lovells US
One Tabor Center, Suite 1500
Denver, Colorado 80202
T +1 303 899 7300
F +1 303 899 7333
www.hoganlovells.com |
February 4, 2016
Board of Directors
Royal Gold, Inc.
1660 Wynkoop Street, Suite 1000
Denver, CO 80202
Ladies and Gentlemen:
We are acting as counsel to Royal Gold,
Inc., a Delaware corporation (the “Company”), in connection with its registration statement on Form S-8
(the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the “Act”), relating to the offering of 2,500,000 newly issued shares of the common stock,
par value $0.001 per share (the “Common Stock”), of the Company (the “Shares”), all of which
shares are issuable pursuant to the Royal Gold, Inc. 2015 Omnibus Long-Term Incentive Plan (the “Plan”). This
opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation
S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we
have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the
opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including
telecopies). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed,
and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made,
in the context of the foregoing.
This opinion letter is based as to matters
of law solely on the Delaware General Corporation Law, as amended. We express no opinion herein as to any other laws, statutes,
ordinances, rules, or regulations.
Based upon, subject to and limited by the
foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement, (ii) issuance of the Shares
pursuant to the terms of the Plan, and (iii) receipt by the Company of the consideration for the Shares specified in the applicable
resolutions of the Board of Directors and in the Plan, the Shares will be validly issued, fully paid, and nonassessable.
This opinion letter has been prepared for
use in connection with the Registration Statement. We assume no obligation to advise you of any changes in the foregoing subsequent
to the effective date of the Registration Statement.
Hogan
Lovells US LLP is a limited liability partnership registered in the District of Columbia.
“Hogan Lovells” is an international legal practice that includes Hogan Lovells
US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore
Beijing Berlin Brussels Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg
Hanoi Ho Chi Minh City Hong Kong Houston London Los Angeles Madrid Miami Milan Moscow
Munich New York Northern Virginia Paris Philadelphia Prague Rome San Francisco Shanghai
Silicon Valley Singapore Tokyo Ulaanbaatar Warsaw Washington DC Associated offices: Budapest
Jakarta Jeddah Riyadh Zagreb. For more information see www.hoganlovells.com
Royal Gold, Inc. | -2- | February 4, 2016 |
We hereby consent to the filing of this
opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert”
within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan Lovells US LLP
HOGAN LOVELLS US LLP
Exhibit 23.1
Consent of Independent Registered Public
Accounting Firm
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Royal Gold, Inc. 2015 Omnibus Long-Term Incentive Plan of our reports dated August 6, 2015,
with respect to the consolidated financial statements of Royal Gold, Inc. and the effectiveness of internal control over financial
reporting of Royal Gold, Inc. included in its Annual Report (Form 10-K) for the year ended June 30, 2015, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
Denver, Colorado
February 4, 2016
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