Vista Gold Corp 8-K, filed Dec 13, 2021
Vista Gold Corp (VGZ)
About this 8-K
Vista Gold Corp filed this 8-K on December 13, 2021, reporting on events of December 10, 2021.
Items reported
- Item 1.01: Entered into a material agreement
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement
On December 10, 2021, Vista Gold Corp. (the “Company”) entered into Amendment No. 2 (the “Amended ATM Agreement”) to its At The Market Offering Agreement with H.C. Wainwright & Co., LLC (“Wainwright”) as sales manager dated November 22, 2017 and amended June 24, 2020 (the “ATM Agreement”). As previously disclosed in the Company’s Current Report on Form 8-K as filed with the Commission on November 22, 2017, under the terms of the ATM Agreement, the Company will be entitled to sell, at its sole discretion and from time to time as it may choose, common shares in the capital of the Company (“Shares”) through Wainwright (the “Offering”).
The Amended ATM Agreement revises certain representations and warranties of the Company to reflect the filing of a new registration statement on Form S-3 (333-261225) (the “Registration Statement”) and new prospectus supplement regarding the Offering to qualify the offering under the new Registration Statement. The Amended ATM Agreement also revises the definition of Maximum Amount in regard to the number of shares issuable to the lesser of such number of common shares that (a) equals the number or dollar amount of shares registered on the Registration Statement pursuant to which the offering is being made, (b) equals the number of authorized but unissued shares (less the number of 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. As revised, the ATM Agreement can still be terminated by either party upon proper notice under its terms.
The above is a summary of the material terms of the Amended ATM Agreement and is qualified in its entirety by the Amended ATM Agreement which is attached hereto as Exhibit 1.3 and hereby incorporated by reference.
Item 9.01 Exhibits
1.1 |
1.2 |
1.3Amendment No.2 to the At the Market Offering Agreement dated December 10, 2021
5.1Borden Ladner Gervais LLP Opinion*
99.1Consent of Borden Ladner Gervais LLP (contained in Exhibit 5.1)
104 | Cover Page Interactive Data File––the cover page interactive data file does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. |
* The foregoing Exhibits are hereby incorporated by reference into the Registrant’s Registration Statement on Form S-3 (File No. 333-261225), filed with the SEC on November 19, 2021, as declared effective on December 3, 2021, pursuant to the United States Securities Act of 1933, as amended.
SIGNATURES
In accordance with the requirements of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| VISTA GOLD CORP. |
Dated: December 13, 2021 | By: /s/ Frederick H. Earnest Frederick H. Earnest President and Chief Executive Officer |
EXHIBIT INDEX
Exhibit No. | | Description |
1.1 | | At the Market Offering Agreement dated November 22, 2017 (incorporated by reference to Exhibit 1.1 to the Registrant’s Form 8-K filed on November 22, 2017)* |
1.2 | | Amendment No.1 to the At the Market Offering Agreement dated June 24, 2020 (incorporated by reference to Exhibit 1.2 to the Registrant’s Form 8-K filed on June 25, 2020)* |
1.3 | | Amendment No.2 to the At the Market Offering Agreement dated December 10, 2021 |
5.1 | | Borden Ladner Gervais LLP Opinion* |
99.1 | | Consent of Borden Ladner Gervais LLP (contained in Exhibit 5.1) |
104 | | Cover Page Interactive Data File––the cover page interactive data file does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. |
* The foregoing Exhibits are hereby incorporated by reference into the Registrant’s Registration Statement on Form S-3 (File No. 333-261225), filed with the SEC on November 19, 2021, as declared effective on December 3, 2021, pursuant to the United States Securities Act of 1933, as amended.
Exhibit 1.3
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”).”
[remainder of page intentionally left blank]
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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
atm agreement]
3
Exhibit 5.1
1200 Waterfront Centre
200 Burrard St, P.O. Box 48600
Vancouver, BC, Canada V7X 1T2
T 604.687.5744
F 604.687.1415
blg.com
December 10, 2021
Vista Gold Corp.
Suite 5, 7961 Shaffer Parkway
Littleton, Colorado
Dear Sirs/Mesdames
Re: Registration Statement on Form S-3 (the “Registration Statement”)
We have acted as British Columbia counsel to Vista Gold Corp., a British Columbia corporation (the “Company”), with respect to certain legal matters in connection with the registration by the Company, under the U.S. Securities Act of 1933, as amended (the “Securities Act”), of the offer and sale by the Company in the United States of its common shares, having an aggregate offering price of up to US$10,000,000 pursuant to an At the Market Offering Agreement dated November 22, 2017 and amended as of December 10, 2021 (the “ATM Agreement”) by and between the Company and H.C. Wainwright & Co., LLC (the “Manager”). The Company previously filed prospectus supplements to its base prospectus contained in its prior registration statements on Form S-3, pursuant to which it offered and sold an aggregate of 2,826,604 common shares with an aggregate offering price of US$2,910,601. The current prospectus supplement dated December 10, 2021 relates to the offer (the “Offering”) of up to $10,000,000 of the Company’s common shares (the “Shares”) pursuant to the Company’s base prospectus under its new registration statement on Form S-3 (No. 333-261225). The Toronto Stock Exchange has approved the listing of 10,000,000 Shares of which 2,826,604 Shares have been issued.
We have examined such documents and have reviewed such questions of law as we have considered necessary and appropriate for the purposes of our opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies or facsimile transmissions. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the legal, valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon certificates of officers of the Company and of public officials. We have not undertaken any independent investigation to verify the accuracy or completeness of any of the foregoing assumptions.
For purposes of this opinion letter, we have also assumed that (a) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective and such effectiveness will not have been terminated or rescinded, (b) all Shares will be offered, issued and sold in compliance with applicable United States federal and state securities laws and in the manner stated in the Registration Statement and the prospectus supplement filed in the United States, (c) at the time of the issuance of the Shares there will be sufficient common shares authorized and unissued under the Company’s then operative notice of articles (the “Notice of Articles”) and not otherwise reserved for issuance, (d) at the time of issuance of the Shares, the Company validly exists and is duly qualified and in good standing under the laws of its jurisdiction of incorporation, and has the necessary corporate power for such issuance, (e) at the time of issuance of the Shares, the Notice of Articles and then operative articles of the Company (the “Articles” and collectively with the Notice of Articles, the “Charter Documents”) are in full force and effect and have not been amended, restated, supplemented or otherwise altered, and there has been no authorization of any such amendment, restatement, supplement or other alteration, in either case since the date hereof, (f) that the issuance, terms, execution and delivery of the Shares (A) do not result in breaches of, or defaults under,
agreements or instruments to which the Company is bound or violations of applicable statutes, rules, regulations or court or governmental orders, and (B) comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the Company. We have not undertaken any independent investigation to verify the accuracy or completeness of any of the foregoing assumptions.
Based upon and subject to the foregoing, we are of the opinion that:
The Shares will be duly authorized, validly issued, fully paid and non-assessable when certificates representing the Shares have been duly executed, countersigned, registered and delivered, or if uncertificated, valid book-entry notations have been made in the share register of the Company, in each case in accordance with the Charter Documents against payment therefor in an amount determined in accordance with the ATM Agreement for each Common Share.
Our opinions expressed herein are subject to the following qualifications:
(a) | the enforceability of any agreement may be limited by bankruptcy, reorganization, winding-up, insolvency, moratorium, arrangement, fraudulent preference and conveyance, assignment and preference and other similar laws of general application affecting the enforcement of creditor’s rights; |
(b) | no opinion is given as to the enforceability of any term providing for the severance of void, illegal or unenforceable provisions from the remaining provisions of an agreement; |
(c) | no opinion is given as to the enforceability of any term providing that modifications, amendments or waivers are not binding unless in writing; |
(d) | no opinion is given with respect to rights to indemnity and contribution; |
(e) | the enforceability of the obligations of a party under any agreement is subject to general principles of equity, including, without limitation: |
| (i) | concepts of materiality, reasonableness, good faith and fair dealing in performance and enforcement of a contract required of the party seeking its enforcement; |
(ii) | the discretion exercisable by a court with respect to equitable remedies, such as specific performance and injunction; |
(iii) | the discretion exercisable by a court with respect to stays of enforcement proceedings and execution of judgments; |
(iv) | the effect of vitiating factors, such as mistake, misrepresentation, fraud, duress or undue influence; and |
(v) | the discretion of a court with respect to the enforcement of provisions in an agreement to the effect that certain factual or legal determinations, calculations or certificates will be conclusive and binding; |
(f) | a court may reserve to itself the right to decline jurisdiction in any action if the court is an inconvenient forum to hear the action or if concurrent proceedings are being brought elsewhere, notwithstanding any waiver of the right to raise such objection or defence thereto; |
(g) | the right to exercise any unilateral or unfettered discretion pursuant to an agreement will not prevent a court from requiring such discretion to be exercised reasonably; and |
(h) | the recoverability of costs and expenses may be limited to those a court considers to be reasonably incurred, the costs and expenses incidental to all court proceedings are in the discretion of the court and the court has the discretion to determine by whom and to what extent these costs shall be paid. |
The foregoing opinions are limited to the laws of the Province of British Columbia and the federal laws of Canada applicable therein on the date of this opinion, and we are expressing no opinion as to the effect of the laws of any other jurisdiction, domestic or foreign.
The opinion expressed in this letter is for the sole benefit of the Company in connection with the Registration Statement. This opinion may not be relied upon by, disclosed to, or filed with, any other person without our prior written consent.
Notwithstanding the foregoing, we hereby consent to the filing of this opinion with the Securities Exchange Commission (the “SEC”) as an exhibit to the Current Report on Form 8-K to be filed by the Company in connection with the Offering. We also hereby consent to the use of our name under the heading “Legal Matters” in the Base Prospectus and Prospectus Supplement which forms part of the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC promulgated thereunder.
This opinion is expressed as of the date hereof and unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
Very truly yours,
/s/ Borden Ladner Gervais LLP