Amendment No.1 to the At the Market Offering Agreement dated June 24, 2020
June 24, 2020
Vista Gold Corp.
7961 Shaffer Parkway, Suite 5
Littleton, Colorado 80127
Attention: Douglas L. Tobler, Chief Financial Officer
Dear Mr. Tobler:
Reference is made to the At The Market Offering Agreement, dated as of November 22, 2017 (the “ATM Agreement”), between Vista Gold Corp. (the “Company”) and H.C. Wainwright & Co., LLC (the “Wainwright”). This letter (the “Amendment”) constitutes an agreement between the Company and Wainwright to amend the ATM Agreement as set forth herein. Defined terms that are used but not defined herein shall have the meanings ascribed to such terms in the ATM Agreement.
““Registration Statement” shall mean, collectively, (i) for the period from November 22, 2017 until the Second Shelf Effective Date (as defined herein), the shelf registration statement (File Number 333-218979) on Form S-3 (the “First Registration Statement”) that was initially declared effective on July 5, 2017 and (ii) for the period from the Second Shelf Effective Date and thereafter, a new shelf registration statement (File Number 333-239139) on Form S-3 (the “Second Registration Statement”) that was filed prior to the expiration of the First Registration Statement and that was declared effective by the Commission on June 24, 2020 (such date of effectiveness of the Second Registration Statement, the “Second Shelf Effective Date”), including exhibits and financial statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also mean such registration statement as so amended.”
“If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Common Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar
transaction) (a “Distribution” and the record date for the determination of stockholders entitled to receive the Distribution, the “Record Date”), the Company hereby covenants that, in connection with any sales of Shares pursuant to a Sales Notice on the Record Date, the Company covenants and agrees that the Company shall issue and deliver such Shares to the Manager on the Record Date and the Record Date shall be the Settlement Date and the Company shall cover any additional costs of the Manager in connection with the delivery of Shares on the Record Date.”
“This Agreement shall remain in full force and effect until the date that this Agreement is terminated pursuant to Sections 8(a) or (b) above or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases be deemed to provide that Sections 5, 6, 7, 8, 9, 10, 12 and 14 shall remain in full force and effect.”
In acknowledgment that the foregoing correctly sets forth the understanding reached by the Company and Wainwright, please sign in the space provided below, whereupon this Amendment shall constitute a binding amendment to the ATM Agreement as of the date indicated above.
Very truly yours,
H.C. WAINWRIGHT & CO., LLC
By: /s/ Edward D. Silvera
Name: Edward D. Silvera
Title: Chief Operating Officer
Accepted and Agreed:
VISTA GOLD CORP.
By: /s/ Frederick H. Earnest
Name: Fredrick H. Earnest
Title: Chief Executive Officer