Exhibit 2
EXECUTION COPY
AMENDED AND RESTATED LOCK-UP AGREEMENT
THIS AMENDED AND RESTATED LOCK-UP AGREEMENT dated as of the ____ day of
December, 2009 (the "Agreement")
BETWEEN:
ROYAL GOLD, INC.,
a corporation existing under the laws of the State of Delaware,
(the "Purchaser")
- and -
ALTIUS MINERALS CORPORATION,
a corporation existing under the laws of the Province of Alberta,
(the "Shareholder").
RECITALS:
A. The Purchaser and Shareholder are parties to that Lock-up Agreement
dated as of December 18, 2009 and desire to amend and restate such
agreement in all respects as set forth herein.
B. This Agreement sets out the amended and restated terms and conditions
upon which the Shareholder will support the Purchaser's acquisition of
the issued and outstanding common shares (the "Shares") of
International Royalty Corporation, a corporation existing under the
laws of Canada (the "Company"), by means of a Plan of Arrangement (the
"Transaction") to be effected under the provisions of the Canada
Business Corporations Act (the "CBCA").
C. This Agreement also sets out the amended and restated terms and
conditions of the agreement of the Shareholder to vote in favour of the
Transaction: (i) 8,924,972 Shares, representing all of the Shares
currently owned legally or beneficially by the Shareholder, or over
which the Shareholder exercises control or direction, and (ii) all
Shares subsequently acquired by the Shareholder (all of such Shares of
the Shareholder are hereinafter collectively referred to as the
"Shareholder's Shares"), and sets out the obligations and commitments
of the Shareholder in connection therewith.
D. The Shareholder acknowledges that the Purchaser would not proceed with
the Transaction but for the execution and delivery of this Agreement by
the Shareholder.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the mutual
promises and covenants set forth herein, and for other good and valuable
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consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties agree as follows:
ARTICLE 1
EFFECTIVENESS
This Agreement shall become effective upon the execution and delivery
by the Purchaser and the Company (which shall occur concurrently with the
execution and delivery by the parties hereto of this Agreement) of a definitive
arrangement agreement with respect to the Transaction substantially in
accordance with the terms set out in Schedule "A" (the "Arrangement Agreement").
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Shareholder
The Shareholder hereby represents and warrants to and in favour of the
Purchaser as follows and acknowledges that the Purchaser is relying upon such
representations and warranties in connection with the matters contemplated by
this Agreement:
(a) Organization. The Shareholder is a corporation existing under
the laws of the Province of Alberta.
(b) Authorization, etc. The Shareholder has all necessary power,
authority, capacity, consents and right to enter into this
Agreement and to carry out each of its obligations under this
Agreement. This Agreement has been duly executed and delivered
by the Shareholder and constitutes a legal, valid and binding
obligation of the Shareholder enforceable against it in
accordance with its terms; subject, however, to limitations
with respect to enforcement imposed by law in connection with
bankruptcy or similar proceedings, the equitable power of the
courts to stay proceedings before them and the execution of
judgments and to the extent that equitable remedies such as
specific performance and injunction are in the discretion of
the court from which they are sought.
(c) Ownership, etc. The Shareholder, through its direct
wholly-owned subsidiary, Altius Resources Inc. ("Altius
Resources"), is the sole beneficial owner of, and exercises
control and direction over, the Shareholder's Shares. The
Shareholder's Shares constitute all of the Shares owned or
controlled, directly or indirectly, by the Shareholder. As of
the date hereof, the total number of Shares beneficially owned
or over which the Shareholder exercises control or direction
is 8,924,972. The Shareholder, through Altius Resources, has
the sole and exclusive right to dispose of such Shareholder's
Shares as provided in this Agreement and to vote all such
Shares and the Shareholder is not a party to, bound or
affected by or
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subject to, any law of which a breach would occur as a result
of the execution and delivery of this Agreement or the
consummation of any of the transactions provided for in this
Agreement.
(d) Good Title. The Shareholder's Shares to be acquired by the
Purchaser from the Shareholder pursuant to the Transaction
will be acquired with good and marketable title, free and
clear of any and all mortgages, liens, charges, restrictions,
security interests, adverse claims, pledges, encumbrances and
demands or rights of others of any nature or kind whatsoever,
and such Shareholder's Shares are not subject to any
shareholders' agreement, voting trust or similar agreement or
any right or privilege (whether by law, pre-emptive or
contractual) capable of becoming a shareholders' agreement,
voting trust or other agreement affecting the Shareholder's
Shares or the ability of such holder thereof to exercise
ownership rights thereto, including the voting of any such
Shares. No security holder approvals are or will be required
in order to sell the Shareholder's Shares to the Purchaser.
(e) No Agreements. No person, firm, corporation or other entity
whatsoever has any agreement or option, or any right or
privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase,
requisition or transfer from the Shareholder, or any
registered holder of Shareholder's Shares, of any of the
Shareholder's Shares, or any interest therein or right
thereto, except pursuant to this Agreement. Except for the
Shareholder Rights Plan Agreement dated as of November 21,
2008 between the Company and CIBC Mellon Trust Company, as
Rights Agent (the "SRP Agreement"), there does not exist any
agreement, understanding or commitment giving rise to any
obligations, financial or otherwise, on the part of the
Company or any of its subsidiaries or affiliates to the
Shareholder, or any subsidiaries or affiliates of the
Shareholder as applicable (or any associates or insiders of
any of the foregoing).
(f) No Proceeding Pending. There is no claim, action, lawsuit,
arbitration, mediation or other proceeding pending or
threatened against the Shareholder, which relates to this
Agreement or otherwise materially impairs or could materially
impair the ability of the Shareholder to consummate the
transactions contemplated hereby.
(g) Consents. To the knowledge of the Shareholder, there is no
requirement of the Shareholder to make any filing with, give
any notice to, or obtain any permit, licence, sanction,
ruling, order, exemption or consent, approval or waiver of,
any governmental authority or other person (including the
lapse, without objection, of a prescribed time under
applicable law that states that a transaction may be
implemented if a prescribed time lapses following the giving
of notice) as a condition to the lawful completion of the
transactions contemplated by this Agreement or the
Transaction, or the execution and
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delivery by the Shareholder and enforcement against the
Shareholder of this Agreement, except for the filing by the
Shareholder of an amendment or amendments to its Schedule 13D
pursuant to the United States Securities Exchange Act of 1934,
as amended (the "1934 Act").
(h) Non-Contravention. This Agreement does not (or would not with
the giving of notice, the lapse of time or the happening of
any other event or condition) result in a breach or a
violation of, or conflict with in any material manner, or
allow any other person to exercise any rights under any of the
terms or provisions of the constating documents and/or by-laws
of the Shareholder or any agreement, contract or indenture to
which the Shareholder is a party or by which the Shareholder's
property is bound (as applicable), and will not result in the
violation of any law, provided that the Purchaser acknowledges
the terms and conditions of the SRP Agreement and agrees that
it is fully familiar with such terms and conditions and will
be responsible for compliance with such agreement.
Section 2.2 Representations and Warranties of the Purchaser
The Purchaser hereby represents and warrants to and in favour of the
Shareholder as follows and acknowledges that the Shareholder is relying upon
such representations and warranties in connection with the matters contemplated
by this Agreement:
(a) Organization. It is a corporation existing under the laws of
the State of Delaware.
(b) Authorization, etc. It has all necessary power, authority,
capacity, consent and right to enter into this Agreement and
to carry out each of its obligations under this Agreement.
This Agreement has been duly executed and delivered by the
Purchaser and constitutes a legal, valid and binding
obligation of the Purchaser enforceable against it in
accordance with its terms; subject, however, to limitations
with respect to enforcement imposed by law in connection with
bankruptcy or similar proceedings, the equitable power of the
courts to stay proceedings before them and the execution of
judgments and to the extent that equitable remedies such as
specific performance and injunction are in the discretion of
the court from which they are sought.
(c) Non-Contravention. This Agreement does not (or would not with
the giving of notice, the lapse of time or the happening of
any other event or condition) result in a breach or a
violation of, or conflict with in any material manner, or
allow any other person to exercise any rights under any of the
terms or provisions of the constating documents and/or by-laws
of the Purchaser or any agreement, contract or indenture to
which the Purchaser is a party or by which the Purchaser's
property is bound (as applicable), and will not result in the
violation of any law.
(d) No Proceeding Pending. There is no claim, action, lawsuit,
arbitration, mediation or other proceeding pending or
threatened against the Purchaser,
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which relates to this
Agreement or otherwise materially impairs or could materially
impair the ability of the Purchaser to consummate the
transactions contemplated hereby.
(e) Tax Election. The issuer of the exchangeable shares in the
Transaction will make an election under subsection 191.2(1) of
the Income Tax Act (Canada) in respect of the exchangeable
shares in the manner and within the time required by such
subsection.
ARTICLE 3
COVENANTS OF THE SHAREHOLDER
Section 3.1 Covenants of the Shareholder
(1) The Shareholder hereby agrees that it shall not, from the date hereof
until the termination of this Agreement pursuant to Section 4, except
in accordance with the terms of this Agreement:
(a) grant or agree to grant any proxy or other right to the
Shareholder's Shares, or enter into any voting trust or
pooling agreement or arrangement or enter into or subject any
of such Shares to any other agreement, arrangement,
understanding or commitment, formal or informal, with respect
to or relating to the voting thereof;
(b) directly or indirectly, through any officer, director,
employee, advisor, representative, agent or otherwise (as
applicable), make, solicit, assist, initiate, knowingly
encourage, or otherwise facilitate any inquiries, the
submission of proposals or offers from any other person,
corporation, partnership or other business organization
whatsoever regarding a potential competing proposal for the
acquisition of the Shares whether by means of take-over bid,
merger, amalgamation, plan of arrangement, business
combination or otherwise (a "Competing Bid"), participate in
any material discussions or negotiations regarding any
Competing Bid, or otherwise cooperate in any way with, or
assist or participate in, knowingly facilitate or encourage,
any effort or attempt by any other person to do or seek to do
any of the foregoing;
(c) option, sell, transfer, dispose of, pledge, encumber, grant a
security interest in or otherwise convey any Shareholder's
Shares or any right or interest therein, or agree to do any of
the foregoing except pursuant to the Transaction;
(d) except as required by applicable law and except for the filing
by the Shareholder of an amendment or amendments to its
Schedule 13D pursuant to the 1934 Act, prior to the public
announcement of the Transaction, directly or indirectly,
disclose to any person, firm or corporation the existence of
the terms and conditions of this Agreement, or any terms or
conditions or other information concerning the Transaction;
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(e) exercise any rights of dissent, whether provided under the
CBCA or by judicial, regulatory or other order or decision or
otherwise, in connection with the Transaction; and
(f) take any action to encourage or assist any other person to do
any of the prohibited acts referred to in foregoing provisions
of this Section 3.1(1).
(2) The Shareholder hereby agrees that it shall, from the date hereof until
the termination of this Agreement pursuant to Section 4, except in
accordance with the terms of this Agreement:
(a) immediately cease any existing discussions or negotiations it
is engaged in with any parties other than the Purchaser with
respect to any Competing Bid;
(b) take all steps as are necessary or advisable to ensure that at
the time of the consummation of the Transaction, the
Shareholder's Shares will be held by the Shareholder or Altius
Resources with good and marketable title thereto, free and
clear of any and all mortgages, liens, charges, restrictions,
security interests, adverse claims, pledges, encumbrances and
demands or rights of others of any nature or kind whatsoever,
any shareholders' agreement, voting trust or similar agreement
or any right or privilege (whether by law, pre-emptive or
contractual) capable of becoming a shareholders' agreement,
voting trust or other agreement affecting the Shareholder's
Shares or the ability of such holder thereof to exercise
ownership rights thereto, including the voting of any such
Shares;
(c) exercise the voting rights attaching to the Shareholder's
Shares and otherwise use the Shareholder's commercially
reasonable efforts in the Shareholder's capacity as a
shareholder to oppose any proposed action by the Company, its
shareholders, any of its subsidiaries or any other person: (i)
in respect of any amalgamation, merger, sale of the Company's
or its affiliates' or associates' assets, take-over bid, plan
of arrangement, reorganization, recapitalization, or other
business combination or similar transaction involving the
Company or any of its subsidiaries other than the Transaction;
(ii) which would reasonably be regarded as being directed
towards or likely to prevent or delay the successful
completion of the Transaction, including without limitation
any amendment to the constating documents of the Company, its
subsidiaries or its organizational structure; or (iii) which
would reasonably be expected to result in a material adverse
effect in respect of the Company; and
(d) at any meeting of the shareholders of the Company, however
called, vote in favour of the Transaction and any matters
necessary or ancillary to the completion thereof, and upon
request by Purchaser, duly complete and cause any proxies or
other documents required in accordance with the foregoing to
be validly delivered (and not withdrawn except in the event of
a Competing Bid in respect of which the Shareholder is
entitled to terminate
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this Agreement) in support of the
special resolution of the Company's shareholders approving the
Transaction.
(3) The Shareholder covenants to co-operate with the Purchaser using
reasonable commercial efforts in making all requisite regulatory
filings in respect of the Transaction, other than the filing by the
Shareholder of an amendment or amendments to its Schedule 13D pursuant
to 1934 Act.
(4) Subject to Section 4.1(d), the Shareholder hereby agrees to elect (the
"Election") to receive exchangeable shares (having terms as described
in Schedule "A" attached hereto), to the extent available, of the
Canadian subsidiary of the Purchaser in respect of 100% of the
Shareholder's Shares to be exchanged as part of the Transaction;
provided that, in the event that the value of such all share election
would be equal to or less than 95% of the value of an all cash election
on the final date on which an election can be made under the
Transaction, the Shareholder shall not be required to make the
Election.
ARTICLE 4
TERMINATION
Section 4.1 Termination
This Agreement may be terminated by notice in writing as follows:
(a) at any time by mutual consent of the Shareholder and the
Purchaser;
(b) by the Shareholder, if the Purchaser has not consummated the
Transaction within 150 days after the date of this Agreement;
provided, however, that if such consummation is delayed by (i)
an injunction or order made by a court or regulatory authority
of competent jurisdiction, or (ii) the Purchaser not having
obtained any regulatory waiver, consent or approval which is
necessary to permit the Purchaser to consummate the
Transaction, then, provided that such injunction or order is
being contested or appealed, such regulatory waiver, consent
or approval is being actively sought, as applicable, this
Agreement shall not be terminated by the Shareholder pursuant
to this Section 4.1(b) until the earlier of (i) 180 days after
the date of this Agreement, and (ii) the 20th business day
following the date on which such injunction or order ceases to
be in effect or such waiver, consent or approval is obtained,
as applicable;
(c) by the Shareholder at any time if the Transaction is modified
in a manner that diminishes the value of the consideration
that would be received by the Shareholder under the
Transaction as described on Schedule "A";
(d) by the Shareholder, if a Competing Bid is or has been
announced or made for 100% of the outstanding Shares that
provides for consideration per Share that exceeds the value of
the consideration offered by the Purchaser under the
Transaction to the Shareholder for its Shares, as determined
by the
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Shareholder, in good faith and acting reasonably, and
the Purchaser has not, within five (5) business days of the
provision by the Shareholder of notice to the Purchaser that
the consideration per share offered by the Competing Bid
exceeds the value of the consideration offered by the
Purchaser under the Transaction, either (i) publicly announced
its intention to amend the Transaction in order to match or
exceed the consideration provided under a Competing Bid or
(ii) waived the requirement under section 3.1(4) for the
Shareholder to make the Election if and to the extent that
such waiver will permit the Purchaser to make an election of
consideration under the Transaction such that the
consideration provided for its Shares under the Transaction
either matches or exceeds that provided under the Competing
Bid (provided that the exercise of such "matching right" by
the Purchaser must occur not later than such time and date as
the Shareholder may reasonably determine would be sufficient
to permit it, as the case may be, to deposit its Shares into
the Competing Bid prior to the expiry thereof or to withdraw
any proxy or proxies previously delivered in favour of the
Transaction and to deliver a proxy or proxies in favour of the
Competing Bid);
(e) by the Purchaser if the Shareholder has not materially
complied with its covenants to the Purchaser contained herein;
(f) by the Purchaser if any of the representations and warranties
of the Shareholder contained herein is untrue or inaccurate in
any material respect; or
(g) by the Purchaser or the Shareholder if the Arrangement
Agreement is terminated or expires.
ARTICLE 5
GENERAL
Section 5.1 Alternative Transaction
If the Purchaser determines it is necessary or desirable to proceed
with another form of transaction (an "Alternative Transaction") whereby the
Purchaser would acquire following completion of such Alternative Transaction at
least a majority of the Shares outstanding of the Company on economic terms
which, in relation to the Shareholder, are at least equivalent to or better than
those contemplated by the Transaction, the Shareholder shall support the
completion of such Alternative Transaction. If any Alternative Transaction
involves a meeting or meetings of the shareholders of the Company, the
Shareholder shall vote in favour of any matters necessary or ancillary to the
completion of the Alternative Transaction. In the event of any proposed
Alternative Transaction, the references in this Agreement to the Transaction
shall be deemed to be changed to "Alternative Transaction" and all provisions of
this Agreement shall be and shall be deemed to have been made in the context of
the Alternative Transaction.
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Section 5.2 Effect of Termination
If this Agreement is terminated as provided for in Article 4, there
shall be no liability or further obligation, on the part of any party hereto;
provided that nothing in this Article 5 shall release the parties to this
Agreement from liability for breach of any representation, warranty or covenant
of this Agreement occurring prior to the termination hereof.
Section 5.3 Disclosure
Except as required by law (including the filing by the Shareholder of
an amendment or amendments to its Schedule 13D pursuant to the 1934 Act) or
applicable stock exchange requirements, the Shareholder shall not make any
public announcement or statement with respect to the Transaction or this
Agreement without the prior approval of the Purchaser, such approval not to be
unreasonably withheld or delayed. Moreover, in any event, the Shareholder
agrees, to the extent reasonably practicable (and other than in respect of the
filing of such amendment or amendments), to provide prior notice to the
Purchaser of any public announcement relating to the Transaction or this
Agreement and agrees, to the extent reasonably practicable, to consult with the
Purchaser prior to issuing such public announcement. The Shareholder hereby
expressly consents to the Purchaser's disclosure in any public announcement or
disclosure that is required by applicable law or the rules of any stock exchange
of the Shareholder's identity and ownership of the Shareholder's Shares and the
nature of the Shareholder's obligations under this Agreement; provided that the
Purchaser's first public announcement regarding the foregoing matters shall be
subject to the prior consent of the Shareholder acting reasonably and without
unreasonable delay and any subsequent public announcements or disclosure
regarding the same shall substantially conform to the contents of the first
public announcement.
Section 5.4 Further Assurances
Each of the parties hereto shall, from time to time, execute and
deliver all such further documents and instruments and do all acts and things as
the other party may, either before or after the completion of the transaction,
reasonably require to effectively carry out or better evidence or perfect the
full intent and meaning of this Agreement.
Section 5.5 Assignment
The Purchaser may assign all or any part of its rights under this
Agreement to a subsidiary or affiliate of the Purchaser provided that such
assignee shall be party to the Transaction and the Purchaser shall remain liable
for its obligations hereunder. This Agreement shall not otherwise be assignable
by any party without the express prior written consent of the other party.
Section 5.6 Time
Time shall be of the essence of this Agreement.
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Section 5.7 Currency
All sums of money referred to in this Agreement shall mean Canadian
funds.
Section 5.8 Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein.
The parties hereto irrevocably submit to the non-exclusive jurisdiction of the
courts of the Province of Ontario in respect of the interpretation and
enforcement of this Agreement.
Section 5.9 Entire Agreement
This Agreement constitutes and comprises the entire agreement and
understanding between the parties hereto with regard to the subject matter
hereof and supersedes all prior agreements and undertakings, both written and
oral, between the parties with respect to the subject matter hereof.
Section 5.10 Amendment
This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by each
of the parties hereto.
Section 5.11 Specific Performance and Injunctions
The Shareholder recognizes and acknowledges that this Agreement is an
integral part of the transactions contemplated in the Transaction and that the
Purchaser would not contemplate undertaking the Transaction unless this
Agreement was executed, and that a breach by the Shareholder of any covenants or
other commitments or obligations contained in the Agreement will cause the
Purchaser to sustain injury for which it would not have an adequate remedy at
Law for money damages. Therefore, each of the parties hereto agrees that, in the
event of such breach, the Purchaser shall be entitled to the remedy of specific
performance of such obligation and preliminary and permanent injunctive and
other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity, and the Shareholder further agrees to waive any
requirement for the security or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief. Such remedies will
not be exclusive remedies for any breach of this Agreement but will be in
addition to any other remedy to which the Purchaser may be entitled, at law or
in equity.
Section 5.12 Shares
References to "Shares" (including the "Shareholder's Shares") include
any shares or securities into which the Shares of the Company may be
reclassified, subdivided, consolidated or converted and any rights and benefits
arising therefrom, including any distributions of securities which may be
declared in respect of the Shares (other than permitted distributions). For the
avoidance of doubt, the Shareholder's Shares shall include all Shares
subsequently acquired by the Shareholder or Altius Resources.
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Section 5.13 Headings, etc.
The division of this Agreement into Articles and sections and the
insertion of headings are for convenient reference only and do not affect its
interpretation.
Section 5.14 Notices
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be delivered in person or transmitted by
telecopy or similar means of recorded electronic communication addressed as
follows:
(i) if to the Shareholder:
Altius Minerals Corporation
66 Kenmount Road
Suite 202, Kenmount Business Center
St. John's, Newfoundland A1B 3N4
Fax No: (709) 576-3441
Attention: Brian Dalton, Chief Executive Officer
with a copy to (which shall not constitute notice to the Shareholder):
Stikeman Elliott LLP
5300 Commerce Court West
199 Bay Street
Toronto, Ontario M5L 1B9
Fax No: (416) 947-0866
Attention: Mihkel Voore and Ivan Grbesic
(ii) if to the Purchaser:
Royal Gold, Inc.
1660 Wynkoop Street, Suite 1000
Denver, Colorado 80202
Fax No: (303) 595-9385
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Attention: Bruce Kirchhoff, Vice President and General Counsel
with a copy to (which shall not constitute notice to the Purchaser):
Hogan & Hartson L.L.P.
1200 Seventeenth St., Ste. 1500
Denver, Colorado 80203
Fax No: (303) 899-7333
Attention: Paul Hilton, Esq.
McCarthy Tetrault LLP
Suite 5300, Toronto Dominion Bank Tower
Toronto-Dominion Centre
Toronto, Ontario M5K 1E6
Fax No: (416) 868-0673
Attention: Graham Gow
Any such notice or other communication shall be deemed to have been given and
received on the day on which it was delivered or transmitted (or, if such day is
not a business day, on the next following business day) provided that it is
delivered or transmitted during normal business hours, failing which it shall be
deemed to have been given and received on the next business day. Any party may
at any time change its address for service from time to time by giving notice to
the other parties in accordance with this Section 5.14.
Section 5.15 Severability
If any term or other provision of this Agreement is determined to be
invalid, illegal or incapable of being enforced by any rule of law, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party hereto. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
Section 5.16 Benefit of the Agreement
This Agreement shall enure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties hereto.
Section 5.17 Expenses
Each of the parties shall bear their own legal, financial advisory and
accounting costs and expenses incurred in connection with the preparation,
execution and delivery of this Agreement.
Section 5.18 Counterparts
This Agreement may be delivered by facsimile and executed in
counterparts, each of which shall be deemed to be an original and all of which
taken together shall be deemed to constitute one and the same instrument, and it
shall not be necessary in making proof of this Agreement to produce more than
one counterpart.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the
date first written above.
ROYAL GOLD, INC.
By:
-----------------------------------
Name:
Title:
By:
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Name:
Title:
ALTIUS MINERALS CORPORATION
By:
-----------------------------------
Name:
Title:
By:
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Name:
Title:
SCHEDULE "A"
TERMS OF THE
ARRANGEMENT AGREEMENT
Transaction Structure: Plan of Arrangement
Price Per Share: C$7.45 in cash or 0.1385 of a Purchaser
share, assuming 100,565,856 fully diluted
shares. Shareholders could elect either cash
or Purchaser shares as consideration, or a
combination of both, subject to a maximum
aggregate cap of US$350 million in cash and a
maximum number of 7,750,000 Purchaser shares.
However, in a scenario where, in the
aggregate, Company shareholders elect to
receive more than US$314 million in cash, the
number of Purchaser shares will be reduced on
a pro-rata basis. Assuming the maximum share
election, this offer consists of US$3.12 in
cash and 0.0771 shares of Purchaser for each
fully diluted in-the-money share of the
Company. Assuming the maximum cash election,
this offer consists of US$3.48 in cash and
0.0700 shares of Purchaser for each fully
diluted in-the-money share of the Company.
The consideration figures assume an exchange
rate and Purchaser stock price as of December
14, 2009.
Canadian resident shareholders will be
entitled to elect to receive, in place of
Purchaser shares but in the same ratios,
exchangeable shares to be issued by a
Canadian incorporated subsidiary of the
Purchaser having terms and conditions
customary for such shares and consistent in
all material respects with the drafts of the
exchangeable share documentation reviewed by
the Shareholder prior to its execution of the
Agreement to which this term sheet is
attached as a schedule.
Any shareholder who receives exchangeable
shares will be entitled to enter into a joint
election under section 85 of the Income Tax
Act (Canada) (and the comparable provision of
any applicable provincial income tax
legislation) with the issuer of the
exchangeable shares so that the disposition
of the Shares pursuant to the plan of
arrangement can occur on a tax-deferred basis
to the maximum extent possible for Canadian
federal (and applicable provincial) income
tax purposes.
Listing of Purchaser Shares: NASDAQ; TSX
Listing of Exchangeable Shares: TSX
Outside Date: 120 days
Closing Conditions: Company stockholder vote; customary
conditions for transaction of this type,
including no injunctions; accuracy of
representations and warranties; covenants
performed; no material Adverse Change;
Company Debenture not in default.
Financing: No Financing condition. Commitment Letter for
additional $100 million term loan from HSBC.
Diligence: Complete; no condition
Regulatory Approvals: None anticipated
No Shop/Fiduciary Out: Customary non-solicitation; Fiduciary out for
superior proposal; 5 day right to match.
Break Fee: $32 million; expense reimbursement for "naked
no vote" up to $5 million
Stockholder Vote: Company: 2/3 of those present at the meeting.
No Purchaser stockholder vote required.
Lock-ups: All officers and directors