Sec Form 13D Filing - WHITEBOX ADVISORS LLC filing for SAExploration Holdings Inc. (SAEX) - 2019-12-20

The principal business address for each of WA and WB GP is 3033 Excelsior Boulevard, Suite 500, 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.

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.

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 2,165,455 Shares, constituting 34.40% of the Shares of the Issuer, based on 4,290,697 Shares outstanding as provided in the Issuer’s 8-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 2,165,455 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 2,165,455 Shares.

As of the date hereof, WB GP may be deemed to be the beneficial owner of 2,165,455 Shares, constituting 34.40% of the Shares of the Issuer, based on 4,290,697 Shares outstanding as provided in the Issuer’s 8-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 2,165,455 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 2,165,455 Shares.

As of the date hereof, WMP may be deemed to be the beneficial owner of 1,311,220 Shares, constituting 23.82% of the Shares of the Issuer, based on 4,290,697 Shares outstanding as provided in the Issuer’s 8-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 1,311,220 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 1,311,220 Shares.

As of the date hereof, WCP may be deemed to be the beneficial owner of 424,751 Shares, constituting 9.07% of the Shares of the Issuer, based on 4,290,697 Shares outstanding as provided in the Issuer’s 8-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 424,751 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 424,751 Shares.

As of the date hereof, WAP may be deemed to be the beneficial owner of 320,441 Shares, constituting 6.98% of the Shares of the Issuer, based on 4,290,697 Shares outstanding as provided in the Issuer’s 8-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 320,441 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 320,441 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.

Item 6 is hereby amended and supplemented as follows:

On the Series F Closing Date and in connection with the ABL Amendment, the Issuer entered into that certain Warrant Agreement (the “Series F Warrant Agreement”), by and between the Issuer and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent. The Series F Warrant Agreement provides that the Issuer shall issue, from time to time on and after the Series F Closing Date, Series F warrants (the “Series F Closing Date Warrants”) exercisable for up to 10% of the issued and outstanding shares (the “Series F Closing Date Warrant Shares”) of the Issuer’s Shares, on a fully diluted basis as of the Series F Closing Date (or 2,040,430 Shares), at an initial exercise price of $.0001 per share, and, immediately prior to the funding of the Fifth Amendment Additional Advance, Series F warrants (the “Additional F Warrants” and collectively with the Series F Closing Date Warrants, the “Series F Warrants”) to purchase up to 10% of the issued and outstanding Shares (the “Additional Series F Warrant Shares” and together with the Series F Closing Date Warrant Shares, the “Series F Warrant Shares”), on a fully diluted basis as of the Fifth Amendment Additional Advance Date (or 2,267,145 Shares as of the Series F Closing Date).

On the Series F Closing Date, the Issuer issued an aggregate of 429,537 of the Series F Closing Date Warrants to the ABL Lenders. Upon approval by the Nasdaq Stock Market LLC of the Issuer’s listing application regarding the Series F Warrant Shares, the Issuer will issue a further 429,967 of the Series F Closing Date Warrants to the ABL Lenders. The remaining Series F Closing Date Warrants will be issued upon receipt by the Issuer of the approval of its shareholders of the issuance of the Series F Warrant Shares.

The Series F Warrant Agreement provides that if the Issuer has not obtained the approval of its shareholders with respect to the transactions contemplated by the Series F Warrant Agreement, then the Issuer may only issue, upon exercise of the Series F Warrants, a number of Series F Warrant Shares which, when aggregated with any Shares issued on or after the Series F Closing Date and prior to such exercise date, would not exceed 859,504 Shares (or approximately 19.99% of the outstanding Shares as of the Series F Closing Date) (the “F Issuable Maximum”).

Pursuant to the Series F Warrant Agreement, each Series F Warrant gives the holder thereof the right to purchase one share of the Issuer’s Shares, subject to certain limitations on the ability of the holders to exercise their Series F Warrants, including the F Issuable Maximum and a limitation on the ability of certain holders to exercise a Series F Warrant if it would cause such holder to beneficially own in excess of 9.99% of the outstanding Shares.

Each beneficial owner of a Series F Warrant shall be entitled to any dividend, whether payable in cash, in kind or other property, that would be distributed to such beneficial owner if such beneficial owner’s Series F Warrants had been converted in full into Shares immediately prior to the close of business on the record date for the determination of the stockholders entitled to receive such dividend.

The foregoing description of the Series F Warrant Agreement is a summary only and is qualified in its entirety by reference to the complete text of the Series F Warrant Agreement, attached hereto as Exhibit AQ, which is incorporated by reference into this Item 6.

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 AN: ABL Amendment, Exhibit 10.1 to the Issuer’s 8-K filed on December 12, 2019, which is incorporated herein by reference.

Exhibit AO: Intercreditor Amendment, Exhibit 10.2 to the Issuer’s 8-K filed on December 12, 2019, which is incorporated herein by reference.

Exhibit AP: A&R Intercreditor Amendment, Exhibit 10.3 to the Issuer’s 8-K filed on December 12, 2019, which is incorporated herein by reference.

Exhibit AQ: Series F Warrant Agreement, Exhibit 4.1 to the Issuer’s 8-K filed on December 12, 2019, which is incorporated herein by reference.

3033 Excelsior Boulevard

Suite 500

Minneapolis, MN 55416

Co-Chief Investment Officer and Board member

Whitebox Advisors LLC

3033 Excelsior Boulevard

Suite 500

Minneapolis, MN 55416

Chief Executive Officer, Chief Legal Officer and Board member

Whitebox Advisors LLC

280 Park Ave

Suite 43W

New York, NY 10017

Chief Compliance Officer

Whitebox Advisors LLC 

3033 Excelsior Boulevard

Suite 500

Minneapolis, MN 55416

Chief Risk Officer

Whitebox Advisors LLC

3033 Excelsior Boulevard

Suite 500

Minneapolis, MN 55416

Co-Chief Investment Officer and Board member

Whitebox Advisors LLC

3033 Excelsior Boulevard

Suite 500

Minneapolis, MN 55416

Chief Financial Officer

Whitebox Advisors LLC

3033 Excelsior Boulevard, Suite 500

Minneapolis, MN 55416

Head of Special Situations and Restructuring and Board member

Whitebox Advisors LLC

3033 Excelsior Boulevard, Suite 500

Minneapolis, MN 55416

Head of Structured Credit and Board member

Whitebox Advisors LLC

3033 Excelsior Boulevard

Suite 500

Minneapolis, MN 55416

Co-Chief Investment Officer

Whitebox Advisors LLC

3033 Excelsior Boulevard

Suite 500

Minneapolis, MN 55416

Chief Executive Officer and Chief Legal Officer

Whitebox Advisors LLC

3033 Excelsior Boulevard

Suite 500

Minneapolis, MN 55416

Co-Chief Investment Officer

Whitebox Advisors LLC

3033 Excelsior Boulevard, Suite 500

Minneapolis, MN 55416

Head of Special Situations and Restructuring

Whitebox Advisors LLC

3033 Excelsior Boulevard, Suite 500

Minneapolis, MN 55416

Head of Structured Credit

Whitebox Advisors LLC

Title of Class

Price Per

Share/Unit 

Title of Class

Price Per

Share/Unit

Title of Class

Price Per

Share/Unit 

Title of Class

Price Per

Share/Unit