Amendment No.2 to the At the Market Offering Agreement dated December 10, 2021
December 10, 2021
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, as amended on June 24, 2020 (the “ATM Agreement”), between Vista Gold Corp. (the “Company”) and H.C. Wainwright & Co., LLC (the “Wainwright”). This letter amendment (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, (ii) for the period from the Second Shelf Effective Date until July 7, 2021, the 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”), and (iii) for the period from December 3, 2021 and thereafter, a new shelf registration statement (File Number 333-261225) on Form S-3 (the “Third Registration Statement”) that was declared effective by the Commission on December 3, 2021, 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.”
“The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal, from time to time during the term of this Agreement and on the terms set forth herein, up to the Maximum Amount (as defined below), which is equal to the lesser of such number of common shares (the “Shares”), no par value per share (“Common Shares”), that (a) equals the number or dollar amount of Common Shares registered on the Registration Statement pursuant to which the offering is being made, (b) equals the number of authorized but unissued Common Shares (less the number of Common Shares issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), or (c) would cause the Company or the offering of the Shares to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable, General Instruction I.B.6 of Registration Statement on Form S-3 (the lesser of (a), (b), and (c), the “Maximum Amount”).”
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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. Silva
Name: Edward D. Silva
Title: Chief Operating Officer
Accepted and Agreed:
VISTA GOLD CORP.
By: /s/ Douglas L. Tobler
Name: Douglas L. Tobler
Title: Chief Financial Officer
[signature page to VGZ Amendment to