(Amendment No. 12)*
1.
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NAME OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Whitebox Advisors LLC
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2.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) [_]
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(b) [X]
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5.
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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[X]
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
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Delaware
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
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8.
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SHARED VOTING POWER
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1,994,356*
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9.
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SOLE DISPOSITIVE POWER
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0
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10.
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SHARED DISPOSITIVE POWER
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1,994,356*
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11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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1,994,356*
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12.
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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[_]
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13.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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33.88%*
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14.
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TYPE OF REPORTING PERSON
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IA
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* The percent of class is calculated
based on 4,052,157 Shares (as defined in Item 1) outstanding as provided in the Issuer’s Form 10-K filed on March 25, 2019
(the “10-K”). The number of Shares reported herein is comprised of (i) 160,480 Shares and (ii) 1,833,876 additional
Shares issuable to WMP, WCP and WAP (as defined in Item 2) upon the exercise of 2,446,026 Series C Warrants, 4,997,800 Series D
Warrants and 29,233,812 Series E Warrants.
1.
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NAME OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Whitebox General Partner LLC
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2.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) [_]
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(b) [X]
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5.
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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[_]
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
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Delaware
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
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8.
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SHARED VOTING POWER
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1,994,356*
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9.
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SOLE DISPOSITIVE POWER
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0
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10.
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SHARED DISPOSITIVE POWER
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1,994,356*
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11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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1,994,356*
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12.
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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[_]
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13.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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33.88%*
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14.
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TYPE OF REPORTING PERSON
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OO
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* The percent of class is calculated
based on 4,052,157 Shares outstanding as provided in the Issuer’s 10-K. The number of Shares reported herein is comprised
of (i) 160,480 Shares and (ii) 1,833,876 additional Shares issuable to WMP, WCP and WAP upon the exercise of 2,446,026 Series C
Warrants, 4,997,800 Series D Warrants and 29,233,812 Series E Warrants.
1.
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NAME OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Whitebox Multi-Strategy Partners, LP
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2.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) [_]
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(b) [X]
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5.
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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[_]
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
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British Virgin Islands
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
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8.
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SHARED VOTING POWER
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1,191,365*
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9.
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SOLE DISPOSITIVE POWER
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0
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10.
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SHARED DISPOSITIVE POWER
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1,191,365*
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11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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1,191,365*
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12.
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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[_]
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13.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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23.15%*
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14.
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TYPE OF REPORTING PERSON
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PN
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* The percent of class is calculated
based on 4,052,157 Shares outstanding as provided in the Issuer’s 10-K. The number of Shares reported herein is comprised
of (i) 98,095 Shares and (ii) 1,093,270 additional Shares issuable to WMP upon the exercise of 1,458,434 Series C Warrants, 2,979,904
Series D Warrants and 17,427,095 Series E Warrants.
1.
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NAME OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Whitebox Credit Partners, LP
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|
2.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) [_]
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(b) [X]
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5.
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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[_]
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
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British Virgin Islands
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
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8.
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SHARED VOTING POWER
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400,067*
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9.
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SOLE DISPOSITIVE POWER
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0
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10.
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SHARED DISPOSITIVE POWER
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400,067*
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11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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400,067*
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12.
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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[_]
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13.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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9.05%*
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14.
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TYPE OF REPORTING PERSON
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PN
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* The percent of class is calculated
based on 4,052,157 Shares outstanding as provided in the Issuer’s 10-K. The number of Shares reported herein is comprised
of (i) 31,896 Shares and (ii) 368,171 additional Shares issuable to WCP upon the exercise of 491,070 Series C Warrants, 1,003,373
Series D Warrants and 5,869,008 Series E Warrants.
1.
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NAME OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Whitebox Asymmetric Partners, LP
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2.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) [_]
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(b) [X]
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5.
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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[_]
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
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Cayman Islands
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
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8.
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SHARED VOTING POWER
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293,881*
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9.
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SOLE DISPOSITIVE POWER
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0
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10.
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SHARED DISPOSITIVE POWER
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|
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293,881*
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|
11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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|
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293,881*
|
|
12.
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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[_]
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13.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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|
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6.80%*
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14.
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TYPE OF REPORTING PERSON
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PN
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* The percent of class is calculated
based on 4,052,157 Shares outstanding as provided in the Issuer’s 10-K. The number of Shares reported herein is comprised
of (i) 23,424 Shares and (ii) 270,457 additional Shares issuable to WAP upon the exercise of 360,592 Series C Warrants, 736,780
Series D Warrants and 4,311,791 Series E Warrants.
Item 1.
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Security and Issuer.
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The name of the issuer is SAExploration Holdings, Inc., a Delaware corporation (the "Issuer"). The address of the Issuer's principal executive offices is 1160 Dairy Ashford Rd., Suite 160, Houston, Texas 77079, United States of America. This Schedule 13D relates to the Issuer's common stock, $0.0001 par value (the "Shares").
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Item 2.
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Identity and Background.
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(a), (f)
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This Schedule 13D is being filed jointly by (i) Whitebox Advisors LLC, a Delaware limited liability company ("WA"), (ii) Whitebox General Partner LLC ("WB GP"), (iii) Whitebox Multi-Strategy Partners, LP, a British Virgin Islands limited partnership ("WMP"), (iv) Whitebox Credit Partners, LP, a British Virgin Islands limited partnership ("WCP"), (v) Whitebox Asymmetric Partners, LP, a Cayman Islands exempted limited partnership (“WAP”), and (vi) the Executive Officers and Board of Managers of WA and the members of the Board of WB GP, the names and citizenship of which are set forth in Exhibit B and Exhibit C, respectively (collectively, the "Reporting Persons").
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(b)
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The principal business address for each of WA and WB GP is 3033 Excelsior Boulevard, Suite 300, Minneapolis, Minnesota 55416. The principal business address of WMP is c/o Estera Corporate Services (BVI) Limited, Jayla Place, Wickhams Cay 1, PO Box 3190, Road Town, Tortola, British Virgin Islands VG1110. The principal business address of WCP is c/o Estera Corporate Services (BVI) Limited, Jayla Place, Wickhams Cay 1, PO Box 3190, Road Town, Tortola, British Virgin Islands VG1110. The principal business address of WAP is c/o Mourant Ozannes Corporate Services (Cayman) Limited, 94 Solaris Avenue, Camana Bay, Grand Cayman KY1-1108 Cayman Islands. The principal business addresses of the Executive Officers and Board of Managers of WA and the members of the Board of WB GP, are set forth in Exhibit B and Exhibit C, respectively.
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(c)
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WA manages and advises private investment funds, including WMP, WCP and WAP (the “WA Private Funds”). WB GP serves as general partner of private investment funds, including WMP, WCP and WAP. The principal business of WMP, WCP and WAP is investments. The principal businesses of the Executive Officers and Board of Managers of WA and the members of the Board of WB GP, are set forth in Exhibit B and Exhibit C, respectively.
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(d)
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None of the Reporting Persons have, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
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(e)
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Except as set forth below in this Item 2(e)
none of the Reporting Persons have, during the last five years been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
In April 2014, WA received a confidential information
inquiry from the Securities and Exchange Commission (the "SEC") in connection with the purchase of shares in a secondary
public offering which occurred in 2012. WA fully cooperated with the SEC and voluntarily reviewed historical trading activity
to identify any other potential instances of inadvertent violations of Rule 105 of Regulation M under the Exchange Act ("Rule
105"). Based on this review, WA identified four additional instances in 2011 and 2012 where WA participated in a secondary
offering during a restricted period. All of these instances were voluntarily disclosed to the SEC. The violations allegedly
occurred between January 2011 and June 2012. Rule 105 generally prohibits purchasing an equity security in a registered follow-on
public offering if the purchaser sold short the same security during the shorter of the period: (1) beginning five business days
before the pricing of the offered securities and ending with such pricing; or (2) beginning with the initial filing of a registration
statement or notification on Form 1-A or Form 1-E and ending with the pricing.
In July 2014, WA voluntarily submitted to an
offer of settlement with respect to the five alleged violations of Rule 105, without admitting or denying the SEC's allegations.
The SEC accepted the offer of settlement, and imposed a cease-and-desist order from future violations of Rule 105. The settlement
involved the payment by WA of disgorgement of $788,779, prejudgment interest of $48,553.49 and a civil money penalty of $365,592.83
(for a total of $1,202,925.30) to the U.S. Treasury.
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Item 3.
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Source and Amount of Funds or Other Consideration.
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No material changes from the Schedule 13D filed by the Reporting Persons on August 8, 2016.
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Item 4.
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Purpose of Transaction.
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No material changes from the Schedule 13D filed by the Reporting Persons on August 2, 2018.
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Item 5.
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Interest in Securities of the Issuer.
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(a, b)
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Item 5 is hereby amended and restated in its
entirety as follows:
As of the date hereof, WA may be deemed to
be the beneficial owner of 1,994,356 Shares, constituting 33.88% of the Shares of the Issuer, based on 4,052,157 Shares outstanding
as provided in the Issuer’s 10-K.
WA has the sole power to vote or direct the
vote of 0 Shares; has the shared power to vote or direct the vote of 1,994,356 Shares; has the sole power to dispose or direct
the disposition of 0 Shares; and has the shared power to dispose or direct the disposition of 1,994,356 Shares.
As of the date hereof, WB GP may be deemed
to be the beneficial owner of 1,994,356 Shares, constituting 33.88% of the Shares of the Issuer, based on 4,052,157 Shares outstanding
as provided in the Issuer’s 10-K.
WB GP has the sole power to vote or direct
the vote of 0 Shares; has the shared power to vote or direct the vote of 1,994,356 Shares; has the sole power to dispose or direct
the disposition of 0 Shares; and has the shared power to dispose or direct the disposition of 1,994,356 Shares.
As of the date hereof, WMP may be deemed to
be the beneficial owner of 1,191,365 Shares, constituting 23.15% of the Shares of the Issuer, based on 4,052,157 Shares outstanding
as provided in the Issuer’s 10-K.
WMP has the sole power to vote or direct the
vote of 0 Shares; has the shared power to vote or direct the vote of 1,191,365 Shares; has the sole power to dispose or direct
the disposition of 0 Shares; and has the shared power to dispose or direct the disposition of 1,191,365 Shares.
As of the date hereof, WCP may be deemed to
be the beneficial owner of 400,067 Shares, constituting 9.05% of the Shares of the Issuer, based on 4,052,157 Shares outstanding
as provided in the Issuer’s 10-K.
WCP has the sole power to vote or direct
the vote of 0 Shares; has the shared power to vote or direct the vote of 400,067 Shares; has the sole power to dispose or direct
the disposition of 0 Shares; and has the shared power to dispose or direct the disposition of 400,067 Shares.
As of the date hereof, WAP may be deemed to
be the beneficial owner of 293,881 Shares, constituting 6.80% of the Shares of the Issuer, based on 4,052,157 Shares outstanding
as provided in the Issuer’s 10-K.
WAP has the sole power to vote or direct
the vote of 0 Shares; has the shared power to vote or direct the vote of 293,881 Shares; has the sole power to dispose or direct
the disposition of 0 Shares; and has the shared power to dispose or direct the disposition of 293,881 Shares.
(c) The transactions in the Shares by
the Reporting Persons in the past 60 days are set forth in Exhibit D.
(d) All of the Shares are beneficially owned
by WMP, WCP and WAP, which are managed by WA and/or for which WB GP serves as the general partner.
(e)
Not
applicable.
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Item 6.
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Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
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Item
6 is hereby amended and supplemented as follows:
On March 28,
2019, the Issuer and WMP, WCP and WAP entered into a stock purchase agreement (the “Stock Purchase
Agreement”) to acquire Shares with amounts received in lieu of Jacob Paul Mercer’s compensation for his
role as a director of the Issuer. The Stock Purchase Agreement was approved by the Issuer’s board of
directors and a copy is being filed as Exhibit AM hereto and is incorporated by
reference.
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Item 7.
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Material to be Filed as Exhibits.
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Exhibit A: Joint Filing Agreement
Exhibit B: Executive Officers and Board
of Managers of Whitebox Advisors LLC
Exhibit C: Board Members of Whitebox
General Partner LLC
Exhibit D: Schedule of Transactions in the
Shares by the Reporting Persons
Exhibit AM: Stock Purchase Agreement between
the Issuer, WMP, WCP and WAP dated March 28, 2019
|
SIGNATURE
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this statement is true, complete and correct.
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April 1, 2019
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(Date)
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Whitebox Advisors LLC
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By:
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/s/Mark Strefling
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Mark Strefling
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Whitebox Advisors LLC
Chief Executive Officer and General Counsel
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Whitebox General Partner LLC
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By:
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/s/Mark Strefling
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Mark Strefling
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Whitebox Advisors LLC
Chief Executive Officer and General Counsel
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Whitebox Multi-Strategy Partners, LP
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By:
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Whitebox General Partner LLC
|
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By:
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/s/Mark Strefling
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Mark Strefling
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Whitebox Advisors LLC
Chief Executive Officer and General Counsel
|
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Whitebox Credit Partners, LP
|
|
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By:
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Whitebox General Partner LLC
|
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By:
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/s/Mark Strefling
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Mark Strefling
|
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Whitebox Advisors LLC
Chief Executive Officer and General Counsel
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Whitebox Asymmetric Partners, LP
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By:
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Whitebox General Partner LLC
|
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By:
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/s/Mark Strefling
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Mark Strefling
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Whitebox Advisors LLC
Chief Executive Officer and General Counsel
|
|
Attention: Intentional misstatements or omissions of fact
constitute Federal criminal violations (see 18 U.S.C. 1001).
Exhibit A
AGREEMENT
The undersigned agree
that this Schedule 13D amendment No. 12, dated April 1, 2019, relating to the Common Stock, $0.0001 par value of SAExploration
Holdings, Inc. shall be filed on behalf of the undersigned.
|
April 1, 2019
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(Date)
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Whitebox Advisors LLC
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By:
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/s/Mark Strefling
|
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|
Mark Strefling
|
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|
Whitebox Advisors LLC
Chief Executive Officer and General Counsel
|
|
|
Whitebox General Partner LLC
|
|
|
|
|
|
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By:
|
/s/Mark Strefling
|
|
|
Mark Strefling
|
|
|
Whitebox Advisors LLC
Chief Executive Officer and General Counsel
|
|
|
Whitebox Multi-Strategy Partners, LP
|
|
|
|
|
|
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By:
|
Whitebox General Partner LLC
|
|
|
By:
|
/s/Mark Strefling
|
|
|
Mark Strefling
|
|
|
Whitebox Advisors LLC
Chief Executive Officer and General Counsel
|
|
|
Whitebox Credit Partners, LP
|
|
|
|
|
|
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By:
|
Whitebox General Partner LLC
|
|
|
By:
|
/s/Mark Strefling
|
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|
Mark Strefling
|
|
|
Whitebox Advisors LLC
Chief Executive Officer and General Counsel
|
|
|
Whitebox Asymmetric Partners, LP
|
|
|
|
|
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By:
|
Whitebox General Partner LLC
|
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By:
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/s/Mark Strefling
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Mark Strefling
|
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Whitebox Advisors LLC
Chief Executive Officer and General Counsel
|
|
Exhibit B
EXECUTIVE OFFICERS AND BOARD OF WHITEBOX
ADVISORS LLC
The name, business address, present principal
employment and citizenship of each executive officer and board member of Whitebox Advisors LLC is set forth below.
Name
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Business Address
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Present Principal Employment
|
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Citizenship
|
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Andrew Redleaf
|
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3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Founding Partner and Board member
Whitebox Advisors LLC
|
|
USA
|
Robert Vogel
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Co-Chief Investment Officer and Board member
Whitebox Advisors LLC
|
|
USA
|
Mark Strefling
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Chief Executive Officer, General Counsel and Board member
Whitebox Advisors LLC
|
|
USA
|
Elissa Weddle
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Chief Legal Officer
Whitebox Advisors LLC
|
|
USA
|
Chris Hardy
|
|
280 Park Ave
Suite 43W
New York, NY 10017
|
|
Chief Compliance Officer
Whitebox Advisors LLC
|
|
USA
|
Brian Lofton
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Chief Risk Officer
Whitebox Advisors LLC
|
|
USA
|
Paul Twitchell
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Co-Chief Investment Officer and Board member
Whitebox Advisors LLC
|
|
USA
|
Richard Vigilante
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Chief Communications Officer and Board member
Whitebox Advisors LLC
|
|
USA
|
Robert Riepe
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Chief Financial Officer
Whitebox Advisors LLC
|
|
USA
|
Kerry Manaster
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Chief Technology Officer
Whitebox Advisors LLC
|
|
USA
|
Jake Mercer
|
|
3033 Excelsior Boulevard, Suite 300
Minneapolis, MN 55416
|
|
Head of Special Situations and Restructuring and Board member
Whitebox Advisors LLC
|
|
USA
|
Paul Roos
|
|
3033 Excelsior Boulevard, Suite 300
Minneapolis, MN 55416
|
|
Head of Structured Credit and Board member
Whitebox Advisors LLC
|
|
USA
|
|
|
|
|
|
|
|
|
|
|
Exhibit C
BOARD OF WHITEBOX GENERAL PARTNER LLC
The name, business address, present principal
employment and citizenship of each board member of Whitebox General Partner LLC is set forth below.
Name
|
|
Business Address
|
|
Present Principal Employment
|
|
Citizenship
|
|
|
|
|
|
|
|
Andrew Redleaf
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Founding Partner Whitebox Advisors LLC
|
|
USA
|
Robert Vogel
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Co-Chief Investment Officer
Whitebox Advisors LLC
|
|
USA
|
Mark Strefling
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Chief Executive Officer and General Counsel
Whitebox Advisors LLC
|
|
USA
|
Paul Twitchell
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Co-Chief Investment Officer
Whitebox Advisors LLC
|
|
USA
|
Richard Vigilante
|
|
3033 Excelsior Boulevard
Suite 300
Minneapolis, MN 55416
|
|
Chief Communications Officer
Whitebox Advisors LLC
|
|
USA
|
Jake Mercer
|
|
3033 Excelsior Boulevard, Suite 300
Minneapolis, MN 55416
|
|
Head of Special Situations and Restructuring
Whitebox Advisors LLC
|
|
USA
|
Paul Roos
|
|
3033 Excelsior Boulevard, Suite 300
Minneapolis, MN 55416
|
|
Head of Structured Credit
Whitebox Advisors LLC
|
|
USA
|
Exhibit D
SCHEDULE OF TRANSACTIONS BY THE REPORTING
PERSONS
Schedule of Transactions in Common
Stock by Whitebox Advisors LLC and Whitebox General Partner LLC (on behalf of private funds for which they act as investment adviser
and general partner, respectively)
Date of Transaction
|
Title of Class
|
Number of Shares/Units Acquired
|
Number of Shares/Units Disposed
|
Price Per
Share/Unit
|
3/28/2019
|
Common Stock
|
30,030
|
N/A
|
$3.33
|
Schedule of Transactions by Whitebox
Multi-Strategy Partners, LP
Date of Transaction
|
Title of Class
|
Number of Shares/Units Acquired
|
Number of Shares/Units Disposed
|
Price Per
Share/Unit
|
3/28/2019
|
Common Stock
|
18,976
|
N/A
|
$3.33
|
Schedule of Transactions by Whitebox
Credit Partners, LP
Date of Transaction
|
Title of Class
|
Number of Shares/Units Acquired
|
Number of Shares/Units Disposed
|
Price Per
Share/Unit
|
3/28/2019
|
Common Stock
|
6,372
|
N/A
|
$3.33
|
Schedule of Transactions by Whitebox
Asymmetric Partners, LP
Date of Transaction
|
Title of Class
|
Number of Shares/Units Acquired
|
Number of Shares/Units Disposed
|
Price Per
Share/Unit
|
3/28/2019
|
Common Stock
|
4,682
|
N/A
|
$3.33
|
Exhibit AM
EXECUTION VERSION
STOCK PURCHASE AGREEMENT
This STOCK
PURCHASE AGREEMENT, dated as of March 28, 2019 (this “
Agreement
”), by and among SAEXPLORATION HOLDINGS, INC.,
a Delaware corporation (the “
Company
”), WHITEBOX ASYMMETRIC PARTNERS, LP, WHITEBOX CREDIT PARTNERS, LP and WHITEBOX
MULTI-STRATEGY PARTNERS, LP (collectively “
Purchasers
” and each a “
Purchaser
”).
WHEREAS,
subject to the terms and conditions of this Agreement, Purchasers desire to purchase from the Company shares of the Company’s
Common Stock, $0.0001 par value
(
“
Common Stock
”) and the Company desires to sell and issue to Purchasers
an aggregate of 30,030 shares of Common Stock (the “
Purchased Shares
”) as set forth on
Schedule 1.1
for
an aggregate purchase price of $99,999.90, (the “
Purchase Price
”).
NOW THEREFORE,
in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE
I.
SALE
AND PURCHASE
Section
1.1 Sale and Purchase
.
On the basis of the representations, warranties, agreements and covenants set forth in this Agreement
and subject to the terms and conditions of this Agreement, the Company hereby issues and sells to Purchasers, and each Purchaser
hereby purchases from the Company the number of Purchased Shares allocated to it at the purchase price per Purchased Share, and
the aggregate Purchase Price for such Purchaser all as specified on
Schedule 1.1.
Section
1.2 Private Placement
.
The Purchased Shares are being sold to Purchasers pursuant to the exemptions from registration afforded
by Section 4(a)(2) and/or Rule 506 of Regulation D of the Securities Act.
Section
1.3 Closing
.
The closing (the “
Closing
”) shall take place on the date hereof against delivery of the
Purchase Price (in immediately available funds by Purchasers to the Company), in exchange for the issuance of the Purchased Shares
by the Company.
Section 1.4 Closing Deliverables
.
(a) At
the Closing, the Company shall deliver to each Purchaser the Purchased Shares purchased by it or shall deliver an executed instruction
letter to the transfer agent instructing the Company’s transfer agent to issue the Purchased Shares purchased by it to the
respective to Purchaser by a book entry designation.
(b) At
the Closing, Purchasers shall deliver to the Company the Purchase Price.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company
represents and warrants to Purchasers, on and as of the date of this Agreement, as follows.
Section 2.1 Due Organization and Qualification;
Capitalization
.
(a) The
Company (i) is duly organized and existing and in good standing under the laws of the jurisdiction of its organization, (ii) is
qualified to do business in any jurisdiction where the failure to be so qualified could reasonably be expected to result in a Material
Adverse Change, and (iii) has all requisite power and authority to own and operate its properties, to carry on its business as
now conducted and as proposed to be conducted, to enter into this Agreement and to carry out the transactions contemplated hereby.
(b) Set
forth on
Schedule 2.1(b
) is a complete and accurate description of the authorized Capital Stock of the Company, by class,
and a description, as of the date of this Agreement, of the number of shares of each such class that are issued and outstanding.
Other than as described on
Schedule 2.1(b
), there are no subscriptions, options, warrants, or calls relating to any shares
of the Company’s Capital Stock, including any right of conversion or exchange under any outstanding security or other instrument.
The Company is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares
of its Capital Stock or any security convertible into or exchangeable for any of its Capital Stock. All of the outstanding Capital
Stock of the Company has been validly issued and is fully paid and non-assessable.
Section 2.2 Due Authorization; No Conflict
.
(a) The
execution, delivery, and performance by the Company of this Agreement has been duly authorized by all necessary action on the part
of the Company.
(b)
The
execution, delivery, and performance by the Company of this Agreement does not and will not (i) violate any material provision
of federal, state, or local law or regulation applicable to the Company, the Governing Documents of the Company, or any order,
judgment, or decree of any court or other governmental authority binding on the Company, (ii) conflict with, result in a breach
of, or constitute (with due notice or lapse of time or both) a default under any Material Contract of the Company except to the
extent that any such conflict, breach or default has been waived or could not individually or in the aggregate reasonably be expected
to cause a Material Adverse Change, or (iii) require any approval of the Company’s stockholders or any approval or consent
of any Person under any Material Contract of the Company, other than consents or approvals that have been obtained and that are
still in force and effect and, except, in the case of Material Contracts, for consents or approvals, the failure to obtain could
not individually or in the aggregate reasonably be expected to cause a Material Adverse Change. No authorization, consent, approval,
waiver, license, qualification or written exemption from, nor any filing, declaration, qualification or registration with, any
governmental authority or any other Person which has not been obtained on or prior to the date hereof is required in connection
with the execution, delivery or performance by the Company of this Agreement.
(c) The
Purchased Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable.
Section
2.3 Binding Obligations
.
This Agreement has been duly executed and delivered by the Company and is the legally valid and
binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement may be limited
by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’
rights generally.
Section
2.4 Litigation
.
There are no actions, suits, or proceedings pending or, to the knowledge of the Company, threatened in writing
against the Company that purports to affect the legality, validity, binding effect or enforceability of this Agreement.
Section
2.5 Compliance with Laws
.
The Company (a) is not in violation of any applicable laws, rules, regulations, executive orders,
or codes that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, or (b) is
subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or
any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic
or foreign, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.
Section 2.6 SEC Reporting; No Material Adverse
Change
.
(a) The
Company has filed all reports required to be filed by it under the Securities Act and the Exchange Act, including pursuant to Section
13(a) or Section 15(d) thereof (the foregoing materials, as such materials may have been amended since the date of their filing,
being collectively referred to herein as the “
SEC Reports
”), on a timely basis or has timely filed a valid extension
of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective
dates or, if amended or restated, as of the date of the last such amendment or restatement, the SEC Reports complied in all material
respects with, to the extent in effect at the time of filing, the applicable requirements of the Securities Act and the Exchange
Act, as the case may be, and the rules and regulations of the Commission promulgated thereunder, and none of the SEC Reports, when
filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were made, not misleading except to the
extent updated, amended, restated or corrected by a subsequent SEC Report. The financial statements and schedules of the Company
and its consolidated Subsidiaries included in the SEC Reports comply in all material respects with the applicable accounting requirements
of Regulation S-X and have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved
(except as otherwise noted therein).
(b)
No
event, circumstance, or change has occurred since the date of the last SEC Report that has or could reasonably be expected to
result in a Material Adverse Change with respect to the Company and its subsidiaries, taken as a whole.
Section 2.7 Certain Fees
.
No broker, finder or investment banker is entitled to any brokerage, finder’s
or other fee or commission payable by the Company with respect to the purchase of the Purchased Shares or the consummation of the
transactions contemplated by this Agreement.
Section 2.8
No General Solicitation. None of the Company, its Affiliates, or any Person acting on its or their behalf have engaged in any form
of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any
offer or sale of the Purchased Shares.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
OF PURCHASERS
Each Purchaser
represents and warrants to the Company on and as of the date of this Agreement as follows:
Section 3.1
Valid Existence. Each Purchaser (i) is duly organized and existing and in good standing under the laws of the jurisdiction of its
organization, (ii) is qualified to do business in any jurisdiction where the failure to be so qualified could reasonably be expected
to result in a Purchaser Material Adverse Change, and (iii) has all requisite power and authority to own and operate its properties,
to carry on its business as now conducted and as proposed to be conducted, to enter into the Agreement and to carry out the transactions
contemplated hereby.
Section
3.2 Due Authorization; No Conflict.
(a) The
execution, delivery, and performance by each Purchaser of this Agreement have been duly authorized by all necessary action on the
part of such Purchaser.
(b) The
execution, delivery, and performance by each Purchaser of this Agreement does not and will not (i) violate any material provision
of federal, state, or local law or regulation applicable to such Purchaser, the Governing Documents of such Purchaser, or any order,
judgment, or decree of any court or other governmental authority binding on such Purchaser, (ii) conflict with, result in a breach
of, or constitute (with due notice or lapse of time or both) a default under any material contract to which such Purchaser is a
party, or by which such Purchaser is bound, or to which any property of such Purchaser is subject, except to the extent that any
such conflict, breach or default has been waived or could not individually or in the aggregate reasonably be expected to cause
Purchaser Material Adverse Change. No authorization, consent, approval, waiver, license, qualification or written exemption from,
nor any filing, declaration, qualification or registration with, any governmental authority or any other Person which has not been
obtained on or prior to the date hereof is required in connection with the execution, delivery or performance by any Purchaser
of this Agreement.
Section
3.3 Binding Obligations. This Agreement has been duly executed and delivered by each Purchaser and is the legally valid and binding
obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except as enforcement may be limited
by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’
rights generally.
Section
3.4 Certain Fees. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission
payable by any Purchaser with respect to the purchase of its Purchased Shares or the consummation of the transactions contemplated
by this Agreement.
Section 3.5 Investment Representations.
(a) Accredited
Investor Status; Sophisticated Purchaser. Each Purchaser is either an Accredited Investor as defined under the Securities Act or
a non-U.S. Person that is also an Accredited Investor. Each Purchaser (i) has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks (including for tax, legal, regulatory, accounting and other financial
purposes) of its prospective investment in its Purchased Shares; (ii) is financially able to bear the economic risk of an investment
in its Purchased Shares and has adequate means to provide for its current needs and other contingencies and to withstand the loss
of the entire investment in its Purchased Shares and has no need for liquidity with respect to its investment in its Purchased
Shares; (iii) in making its investment in its Purchased Shares, it did not rely on the advice or recommendations of the Company
or any of its Affiliates (or any representatives of any of the foregoing); (iv) has conducted and relied upon its own investigation
and assessment of the offer of its Purchased Shares, including the particular United States federal income tax consequences of
the acquisition, ownership, and disposition of its Purchased Shares in light of its particular situation as well as any consequences
arising under the laws of any other taxing jurisdiction, and it acknowledges that it has not relied on the Company or any of its
representatives or Affiliates for advice as to any tax consequences related to such investment or the acquisition, ownership or
disposition of its Purchased Shares or for the preparation and filing of any tax returns and elections required or permitted to
be filed by it in connection therewith; and (v) has determined that an investment in its Purchased Shares is suitable and appropriate
for it.
(b)
Acquisition
for Own Account. Each Purchaser is acquiring its Purchased Shares pursuant to this Agreement for its own account for investment
purposes and not with a view toward, or for resale or transfer in connection with, the sale or distribution of its Purchased Shares
within the meaning of the Securities Act that would be in violation of the Securities Act.
(c)
Reliance
on Exemptions. Each Purchaser understands that its Purchased Shares are being privately placed by the Company pursuant to an exemption
from registration provided under Section 4(a)(2) and/or Rule 506 of Regulation D under the Securities Act and neither the offer
nor sale of any of its Purchased Shares pursuant to this Agreement has been registered under the Securities Act or any state “blue
sky” laws, and that the Company is relying upon the truth and accuracy of, and each Purchaser’s compliance with, the
representations, warranties and agreements, which are true, correct and complete, of such Purchaser set forth herein in order to
determine the availability of such exemptions and the eligibility of each Purchaser to acquire its Purchased Shares.
(d)
Hedging
Transactions. Each Purchaser has not, and agrees not to, engage in hedging transactions with respect to its Purchased Shares except
in compliance with the Securities Act.
Section
3.6 Information. Each Purchaser has been given access to and an opportunity to examine such documents, materials and information
concerning the Company as such Purchaser deems to be necessary or advisable in order to reach an informed decision as to an investment
in the Company (including the SEC Reports), for itself and has had answered to each Purchaser’s full satisfaction any and
all questions regarding such information. Each Purchaser made such independent investigation of the Company, its management, and
related matters, for itself as such Purchaser deems to be necessary or advisable in connection with the purchase of its Purchased
Shares, and is able to bear the economic and financial risk of its Purchased Shares. Neither such inquiries nor any other due
diligence investigations conducted at any time by any Purchaser shall modify, amend or affect such Purchaser’s right (i)
to rely on the Company’s representations and warranties contained in
Article II
above or (ii) to indemnification
or any other remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties,
covenants and agreements in this Agreement. Each Purchaser understands and acknowledges that its acquisition of its Purchased
Shares involves a high degree of risk and uncertainty. Each Purchaser has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision with respect to its acquisition of its Purchased Shares.
(a) Purchased
Shares Not Registered. Each Purchaser has been advised by the Company and it understands that (i) its Purchased Shares are being
privately placed by the Company pursuant to an exemption from registration provided under Section 4(a)(2) and/or Rule 506 of Regulation
D and neither the offer nor sale of its Purchased Shares pursuant to this Agreement has been registered under the Securities Act
or any state “blue sky” laws; and (ii) its Purchased Shares being acquired by such Purchaser pursuant to this Agreement
are characterized as “restricted securities” under the Securities Act inasmuch as they are being acquired by Purchaser
from the Company in a transaction not involving a public offering and, subject to Purchaser’s rights under this Agreement,
each Purchaser must continue to bear the economic risk of the investment in its Purchased Shares indefinitely unless the offer
and sale of its Purchased Shares are subsequently registered under the Securities Act and all applicable state securities or “blue
sky” laws or an exemption from such registration is available.
(b) General
Solicitation. Each Purchaser acknowledges and agrees that neither the Company nor any other Person offered to sell the Purchased
Shares to it by means of any form of general solicitation or advertising, including any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast over television or radio or any seminar or meeting
whose attendees were invited by any general solicitation or general advertising. Each Purchaser further acknowledges and agrees
that it was solicited or became aware of the investment in its Purchased Shares, either through (i) a substantive, pre-existing
relationship with the Company, (ii) direct contact with the Company outside of any public offering effort, and/or (iii) through
contacts by the Company not identified through any public offering.
ARTICLE
IV.
INDEMNIFICATION,
COSTS AND EXPENSES
Section
4.1 Indemnification. The Company agrees to indemnify and hold harmless each Purchaser, the directors, officers, employees, Affiliates
and agents of each Purchaser and each Person who controls each Purchaser within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Securities Act, the Exchange Act or other U.S. federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or liabilities or actions
(
“
Losses
”)
in respect thereof arise out of or are based upon any misrepresentation, breach or inaccuracy of any representation, warranty,
covenant or agreement made by the Company in this Agreement, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by it in connection with investigating or defending such Losses in each case
except for any Losses attributable to Purchaser’s gross negligence or willful misconduct.
Section
4.2 Indemnification Procedures. Promptly after receipt by an indemnified party under this
Article IV
of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this
Article IV
, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under
Section 4.1
above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification
obligation provided in
Section 4.1
above. The indemnifying party shall be entitled to appoint counsel of the indemnifying
party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate
counsel, retained by the indemnified party or parties except as set forth below);
provided, however
, that such counsel
shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel
if (w) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with
a conflict of interest; (x) the actual or potential defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (y)
the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action; or (z) the indemnifying party shall authorize the
indemnified party in writing to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of
such claim, action, suit or proceeding.
ARTICLE V.
DEFINITIONS
Section 5.1
Definitions. Unless the context requires a different meaning, terms have the meanings given to them on
Schedule 5.1.
ARTICLE
VI.
MISCELLANEOUS
Section
6.1 Interpretation. Article, Section, Schedule and Exhibit references are to this Agreement, unless otherwise specified. All references
to instruments, documents, contracts and agreements are references to such instruments, documents, contracts and agreements as
the same may be amended, supplemented and otherwise modified from time to time, unless otherwise specified. The word “including”
shall mean “including but not limited to”. If any provision in this Agreement is held to be illegal, invalid, not binding
or unenforceable, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal,
invalid, not binding or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions shall
remain in full force and effect. This Agreement have been reviewed and negotiated by sophisticated parties with access to legal
counsel and shall not be construed against the drafter.
Section 6.2
Survival of Provisions. The representations and warranties set forth in this Agreement shall survive the execution and delivery
of this Agreement for twelve months.
Section 6.3 No Waiver; Modifications in Writing.
(a) No
failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the
exercise of any right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that
may be available to a party at law or in equity or otherwise.
(b) Except
as otherwise provided in this Agreement, no amendment, waiver, consent, modification or termination of any provision of this Agreement
shall be effective unless signed by each of the parties affected by such amendment, waiver, consent, modification or termination.
Any amendment, supplement or modification of or to any provision of this Agreement, any waiver of any provision of this Agreement,
and any consent to any departure by the Company from the terms of any provision of this Agreement shall be effective only in the
specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement,
no notice to or demand on any party in any case shall entitle any party to any other or further notice or demand in similar or
other circumstances.
Section 6.4 Binding Effect; Assignment.
(a) This
Agreement shall be binding upon the Company, Purchasers, and their respective successors and permitted assigns. Except as expressly
provided in this Agreement, this Agreement shall not be construed so as to confer any right or benefit upon any Person other than
the parties to this Agreement, and their respective successors and permitted assigns.
(b) This
Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned by any party hereto
(whether by operation of law or otherwise) without the prior written consent of the other party.
Section
6.5 Communications. All notices and demands provided for under this Agreement shall be in writing and shall be given by regular
mail, registered or certified mail, return receipt requested, facsimile, air courier guaranteeing overnight delivery or personal
delivery to the following addresses:
(a) If
to Purchasers:
3033 Excelsior Blvd., Suite 300
Minneapolis, MN 55416
Attention: Scott Specken
Facsimile: (612) 355-2198
(b)
If
to the Company:
SAEXPLORATION HOLDINGS, INC.
1160 Dairy Ashford, Suite 160
Houston, Texas 77079
Attention: Chief Financial Officer
Facsimile: (281) 258-4418
or to such other address as
the Company or Purchasers may designate in writing. All notices and communications shall be deemed to have been duly given: (i)
at the time delivered by hand, if personally delivered; (ii) upon actual receipt, if sent by registered or certified mail, return
receipt requested, or regular mail, if mailed; (iii) when receipt acknowledged, if sent via facsimile; and (iv) upon actual receipt
when delivered to an air courier guaranteeing overnight delivery.
Section
6.6 Entire Agreement. This Agreement, including all exhibits and schedules thereto, are intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto
and thereto in respect of the subject matter contained herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or therein with respect to the rights granted by the Company or
Purchasers set forth herein or therein. This Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
Section 6.7 Governing Law and Venue; Waiver of Jury Trial.
(a) THIS
AGREEMENT, THE PURCHASED SHARES AND ALL DISPUTES BETWEEN THE PARTIES UNDER OR RELATING TO THIS AGREEMENT, THE PURCHASED SHARES
OR THE FACTS AND CIRCUMSTANCES LEADING TO ITS EXECUTION AND DELIVERY, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE GOVERNED
BY AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS
PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER STATE.
(b) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT OR THE PURCHASED SHARES
IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION OR DISPUTE DIRECTLY OR INDIRECTLY BASED UPON
OR ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PURCHASED SHARES OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG
THEM RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
6.8 Execution in Counterparts. This Agreement may be executed in any number of counterparts (including by facsimile, .pdf or other
electronic transmission) and by different parties hereto in separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute the same Agreement.
Section
6.9 Remedies. The parties agree that money damages or another remedy at law would not be a sufficient or adequate remedy for any
breach or violation of, or a default under, this Agreement by them and that, in addition to all other remedies available to them,
each of them shall be entitled to an injunction restraining such breach, violation or default or threatened breach, violation or
default and to any other equitable relief including specific performance without bond or other security being required.
[The remainder of this
page is intentionally left blank.]
IN
WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as of the date first above written.
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SAEXPLORATION HOLDINGS, INC.
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By:
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/s/Brent Whiteley
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Name:
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Brent Whiteley
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Title:
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Chief Financial Officer, General Counsel
and Secretary
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[Signature Page
to Stock Purchase Agreement]
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PURCHASERS:
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WHITEBOX ASYMMETRIC PARTNERS, LP
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By:
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/s/Mark Strefling
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Name:
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Mark Strefling
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Title:
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Partner & CEO
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WHITEBOX CREDIT PARTNERS, LP
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By:
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/s/Mark Strefling
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Name:
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Mark Strefling
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Title:
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Partner & CEO
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WHITEBOX MULTI-STRATEGY PARTNERS, LP
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By:
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/s/Mark Strefling
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Name:
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Mark Strefling
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Title:
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Partner & CEO
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[Signature Page
to Stock Purchase Agreement]
Schedule 1.1
Purchasers
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Purchase Price
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Number of
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Purchase
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Identity of the Purchasers
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Per Share
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Purchased Shares
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Price
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Whitebox Asymmetric Partners, LP
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$3.33
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4,682
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$15,591.06
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Whitebox Credit Partners, LP
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$3.33
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6,372
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$21,218.76
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Whitebox Multi-Strategy Partners, LP
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$3.33
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18,976
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$63,190.08
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Schedule 2.1(b
)
Capitalization
Class of Securities
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Authorized Number
|
Outstanding Number
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Number of Shares of Common Stock Reserved for Issuance on Conversion
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Common Stock
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40,000,000
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4,052,157
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n/a
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Convertible Notes
|
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60,000
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10,434,783
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Class A Warrants
|
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154,376
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7,719
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Class B Warrants
|
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154,376
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7,719
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Class C Warrants
|
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7,469,879
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373,494
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Class D Warrants
|
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11,274,419
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563,721
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Class E Warrants
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54,552,934
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2,727,647
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Schedule 5.1
Definitions
“
Accredited
Investor
” means an “accredited investor” within the meaning of Rule 501 under the Securities Act.
“
Affiliates
”
means, as applied to any Person, any other Person who controls, is controlled by, or is under common control with, such Person.
For purposes of this definition, “control” means the possession, directly or indirectly through one or more intermediaries,
of the power to direct the management and policies of a Person, whether through the ownership of voting securities or other interests,
by contract, or otherwise.
“
Agreement
” shall have the
meaning specified in the first paragraph of this Agreement. “
Capital Stock
” means:
(i) in
the case of a corporation, capital stock;
(ii) in
the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests,
respectively; and
(iii) in
the case of any other entity, any other interests or participations that confer on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing entity;
but excluding from all of the foregoing
any debt securities convertible into or exchangeable for Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.
“
Closing
”
shall have the meaning specified in
Section 1.3
of this Agreement.
“
Commission
”
means the U.S. Securities and Exchange Commission.
“
Common Stock
” shall have the
meaning specified in the Recitals of this Agreement.
“
Company
” shall have the meaning
specified in the first paragraph of this Agreement.
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“
GAAP
”
shall mean generally accepted accounting principles as established in the United States.
“
Governing
Documents
” means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational
documents of such Person.
“
Legal
Requirements
” means, as to any Person, the Organizational Documents of such Person, and any governmental treaty, law
(including the common law), statute, ordinance, code, rule, regulation, guidelines, license, permit requirement, order or determination
of an arbitrator or a court or other governmental authority, and the interpretation or administration thereof, in each case applicable
to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“
Losses
” shall have
the meaning given to such term in
Section 4.1
of this Agreement.
“
Material
Adverse Change
” means (a) a material adverse change in the business, prospects, operations, results of operations, assets,
liabilities or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole, (b) a material impairment
of the ability of the Company to perform its obligations this Agreement, or (c) any claim against the Company or its Subsidiaries
or written threat of material litigation which if determined adversely to the Company, would result in the occurrence of an event
described in clause (a) or (b) above.
“
Material
Contract
” means the contracts filed or listed as Material Contracts in the Exhibits to the Company’s Form 10-K
for the year ended December 31, 2018.
“
Person
”
means and includes natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited
liability partnerships, joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they
are legal entities, and governments and agencies and political subdivisions thereof.
“
Purchaser
”
or “
Purchasers
” shall have the meanings specified in the first paragraph of this Agreement.
“
Purchaser
Material Adverse Effect
” means any material and adverse effect on the ability of a Purchaser to consummate the transactions,
or perform its obligations, under this Agreement on a timely basis.
“
SEC Reports
” shall have the meaning
given to such term in
Section 2.6.
“
Securities
Act
” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“
Subsidiary
”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of
the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard
to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at
the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such
Person; or (iii) one or more Subsidiaries of such Person.