UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

 

FORM 8-K

CURRENT REPORT

 

PURSUANT TO SECTION 13 OR 15(D) OF THE

SECURITIES EXCHANGE ACT OF 1934 

 

Date of Report (Date of earliest event reported): May 23, 2013  

 

TRIO MERGER CORP.

(Exact Name of Registrant as Specified in Charter)

 

Delaware   001-35471   27-4867100
(State or Other Jurisdiction   (Commission   (IRS Employer
of Incorporation)   File Number)   Identification No.)

 

777 Third Avenue, 37th Floor, New York, New York 10017

(Address of Principal Executive Offices) (Zip Code)

 

(212) 319-7676

(Registrant’s Telephone Number, Including Area Code)

 

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

x Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e 4(c))

 

 
 

 

TRIO MERGER CORP. (“TRIO”) INTENDS TO HOLD PRESENTATIONS FOR CERTAIN OF ITS STOCKHOLDERS, AS WELL AS OTHER PERSONS WHO MIGHT BE INTERESTED IN PURCHASING TRIO SECURITIES, REGARDING ITS MERGER WITH SAEXPLORATION HOLDINGS, INC. (“SAE”), AS DESCRIBED IN TRIO’S CURRENT REPORT ON FORM 8-K FILED ON DECEMBER 11, 2012. THIS CURRENT REPORT ON FORM 8-K, INCLUDING THE EXHIBITS HERETO, MAY BE DISTRIBUTED TO PARTICIPANTS AT OR PRIOR TO SUCH PRESENTATIONS.

 

EARLYBIRDCAPITAL, INC. (“EBC”), THE MANAGING UNDERWRITER OF TRIO’S INITIAL PUBLIC OFFERING (“IPO”) CONSUMMATED IN JUNE 2011, IS ACTING AS TRIO’S INVESTMENT BANKER IN THESE EFFORTS, FOR WHICH IT WILL RECEIVE A FEE OF $2,415,000. TRIO AND ITS DIRECTORS AND EXECUTIVE OFFICERS AND EBC MAY BE DEEMED TO BE PARTICIPANTS IN THE SOLICITATION OF PROXIES FOR THE SPECIAL MEETING OF TRIO STOCKHOLDERS TO BE HELD TO CONSIDER, AMONG OTHER PROPOSALS, APPROVAL OF THE MERGER.

 

STOCKHOLDERS OF TRIO AND OTHER INTERESTED PERSONS ARE ADVISED TO READ TRIO’S PRELIMINARY PROXY STATEMENT/INFORMATION STATEMENT AND, WHEN AVAILABLE, TRIO’S DEFINITIVE PROXY STATEMENT/INFORMATION STATEMENT IN CONNECTION WITH TRIO’S SOLICITATION OF PROXIES FOR THE SPECIAL MEETING BECAUSE THESE PROXY STATEMENTS/INFORMATION STATEMENTS WILL CONTAIN IMPORTANT INFORMATION. SUCH PERSONS CAN ALSO READ TRIO’S FINAL PROSPECTUS, DATED JUNE 21, 2011, AND TRIO’S ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2012, FOR A DESCRIPTION OF THE SECURITY HOLDINGS OF THE TRIO OFFICERS AND DIRECTORS AND OF EBC AND THEIR RESPECTIVE INTERESTS AS SECURITY HOLDERS IN THE SUCCESSFUL CONSUMMATION OF THE MERGER. THE DEFINITIVE PROXY STATEMENT/INFORMATION STATEMENT WILL BE MAILED TO STOCKHOLDERS AS OF MAY 31, 2013 FOR VOTING ON THE MERGER. STOCKHOLDERS WILL ALSO BE ABLE TO OBTAIN A COPY OF THE DEFINITIVE PROXY STATEMENT/INFORMATION STATEMENT, WITHOUT CHARGE, BY DIRECTING A REQUEST TO: TRIO MERGER CORP., 777 THIRD AVENUE, 37 TH FLOOR, NEW YORK, NEW YORK 10017. THE PRELIMINARY PROXY STATEMENT/INFORMATION STATEMENT AND THE DEFINITIVE PROXY STATEMENT/INFORMATION STATEMENT, ONCE AVAILABLE, AND THE FINAL PROSPECTUS AND ANNUAL REPORT ON FORM 10-K CAN ALSO BE OBTAINED, WITHOUT CHARGE, AT THE SECURITIES AND EXCHANGE COMMISSION’S INTERNET SITE (http://www.sec.gov).

 

ADDITIONAL INFORMATION AND FORWARD-LOOKING STATEMENTS

 

This report and the exhibitS hereto are not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed transaction and shall not constitute an offer to sell or a solicitation of an offer to buy the securities of Trio or SAE, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction.

 

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This report and the exhibitS hereto include “forward-looking statements” within the meaning of the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995. SAE’s actual results may differ from its expectations, estimates and projections and, consequently, you should not rely on these forward looking statements as predictions of future events. Words such as “expect,” “estimate,” “project,” “budget,” “forecast,” “anticipate,” “intend,” “plan,” “may,” “will,” “could,” “should,” “believes,” “predicts,” “potential,” “continue,” and similar expressions are intended to identify such forward-looking statements. These forward-looking statements include, without limitation, Trio’s and SAE’s expectations with respect to future performance, anticipated financial impacts of the merger and related transactions; approval of the merger and related transactions by security holders; the satisfaction of the closing conditions to the merger and related transactions; and the timing of the completion of the merger and related transactions.

 

These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside the parties’ control and difficult to predict. Factors that may cause such differences include CHANGES IN ECONOMIC, BUSINESS, COMPETITIVE AND/OR REGULATORY FACTORS, AND OTHER RISKS AND UNCERTAINTIES AFFECTING THE OPERATION OF SAE’S BUSINESS. THESE RISKS, UNCERTAINTIES AND CONTINGENCIES INCLUDE: FLUCTUATIONS IN THE LEVELS OF EXPLORATION AND DEVELOPMENT ACTIVITY IN THE OIL AND GAS INDUSTRY; BUSINESS CONDITIONS; WEATHER AND NATURAL DISASTERS; CHANGING INTERPRETATIONS OF GAAP; OUTCOMES OF GOVERNMENT REVIEWS; INQUIRIES AND INVESTIGATIONS AND RELATED LITIGATION; CONTINUED COMPLIANCE WITH GOVERNMENT REGULATIONS; LEGISLATION OR REGULATORY ENVIRONMENTS; REQUIREMENTS OR CHANGES ADVERSELY AFFECTING THE BUSINESS IN WHICH SAE IS ENGAGED; FLUCTUATIONS IN CUSTOMER DEMAND; MANAGEMENT OF RAPID GROWTH; INTENSITY OF COMPETITION FROM OTHER PROVIDERS OF SEISMIC ACQUISITION SERVICES; GENERAL ECONOMIC CONDITIONS; GEOPOLITICAL EVENTS AND REGULATORY CHANGES; The possibility that the merger does not close, including due to the failure to receive required security holder approvals, or the failure of other closing conditions; AND OTHER FACTORS SET FORTH IN TRIO’S FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

The foregoing list of factors is not exclusive. All subsequent written and oral forward-looking statements concerning Trio and SAE, the merger, the related transactions or other matters and attributable to Trio and SAE or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements above. Readers are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made. Neither Trio nor SAE undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statement to reflect any change in their expectations or any change in events, conditions or circumstances on which any such statement is based.

 

 

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Item 1.01 Entry Into a Material Definitive Agreement.

 

Effective as of May 23, 2013, Trio Merger Corp. (“ Trio ”) entered into a First Amendment (the “ Amendment ”) to the Agreement and Plan of Reorganization (the “ Merger Agreement ”), dated as of December 10, 2012, by and among Trio, Trio Merger Sub, Inc., a wholly-owned subsidiary of Trio (“ Merger Sub ”), SAExploration Holdings, Inc. (“ SAE ”), and CLCH, LLC, the holder of a majority of SAE’s outstanding common stock and all of SAE’s outstanding Series A Preferred Stock (the “ Stockholder ”). Upon the consummation of the transactions contemplated by the Merger Agreement, SAE will be merged with and into Merger Sub, with Merger Sub surviving the merger and remaining a wholly-owned subsidiary of Trio (the “ Merger ”). The Amendment addresses certain mechanics of the allocation and distribution of the consideration to be paid to the holders of SAE common stock and derivative securities and provides that any Merger consideration that is to be paid to holders of the SAE derivative securities, and to the holders of SAE restricted stock that has not yet vested, will be held by an escrow agent with voting rights granted to the Stockholder, as representative of the securityholders of SAE under the Merger Agreement, until such securities are exchanged, exercised or vested, as applicable. To the extent such securities do not vest or are not exchanged or exercised, the merger consideration otherwise payable to the holders of such securities will be allocated pro rata among the other holders of SAE common stock, restricted stock and derivative securities.

 

The foregoing summary of the Amendment is qualified in its entirety by reference to the text of the agreement, which is attached as an exhibit hereto and is incorporated herein by reference.

 

Item 7.01 Regulation FD Disclosure.

 

On May 28, 2013, Trio issued a press release announcing that Eric S. Rosenfeld, Trio’s Chief Executive Officer, purchased shares of Trio’s common stock. The press release is included as Exhibit 99.1 hereto.

 

The information in Item 7.01 of this Current Report, including the exhibit relating thereto, is being furnished and shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that Section. The information in Item 7.01 of this Current Report, including the exhibit relating thereto, shall not be incorporated by reference into any registration statement pursuant to the Securities Act of 1933.

 

Item 9.01 Financial Statements, Pro Forma Financial Information and Exhibits.

 

(d) Exhibits:

 

Exhibit   Description
     
2.1   First Amendment to Agreement and Plan of Reorganization, dated as of May 23, 2013, by and among Trio Merger Corp., Trio Merger Sub, Inc., SAExploration Holdings, Inc. and CLCH, LLC.*
     
99.1   Press release.

 

* Certain schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). Trio agrees to furnish supplementally a copy of all omitted schedules to the Securities and Exchange Commission upon its request.

 

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SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Dated: May 28, 2013    
  TRIO MERGER CORP.
     
  By: /s/ David Sgro
    Name: David Sgro
    Title: Chief Financial Officer

 

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EXHIBIT INDEX

 

Exhibit   Description
     
2.1   First Amendment to Agreement and Plan of Reorganization, dated as of May 23, 2013, by and among Trio Merger Corp., Trio Merger Sub, Inc., SAExploration Holdings, Inc. and CLCH, LLC.*
     
99.1   Press release.

 

* Certain schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). Trio agrees to furnish supplementally a copy of all omitted schedules to the Securities and Exchange Commission upon its request.

 

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EXHIBIT 2.1

 

FIRST AMENDMENT

TO

AGREEMENT AND PLAN OF REORGANIZATION

 

THIS AMENDMENT (this “ Amendment ”) is made and entered into as of May 23, 2013, by and among Trio Merger Corp., a Delaware corporation (“ Parent ”), Trio Merger Sub, Inc., a Delaware corporation (“ Merger Sub ”), SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), and CLCH, LLC, an Alaskan limited liability company (“ Stockholder ;” Parent, Merger Sub, the Company and the Stockholder, collectively, the “ Constituent Corporations ”).

 

RECITALS :

 

A.         The Constituent Corporations entered into that certain Agreement and Plan of Reorganization as of December 10, 2012 (the “ Merger Agreement ”), which provides for the merger of the Company with and into Merger Sub, with Merger Sub being the survivor of the merger.

 

B.         As permitted under Section 10.10 of the Merger Agreement, the Constituent Corporations desire to amend the Merger Agreement to reflect certain changes in the terms of the Merger Agreement, as further described herein.

AGREEMENT

 

NOW, THEREFORE , in consideration of the mutual promises herein made, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Constituent Corporations agree as follows:

 

1.           Merger Consideration . Section 1.5 of the Merger Agreement is hereby deleted in its entirety and the following is substituted in its place and stead:

 

“1.5.      Merger Consideration; Effect on Capital Stock .

 

(a)          Merger Consideration . The aggregate consideration to be paid, in accordance with the provisions of Section 1.5(b), to the holders of the capital stock of the Company in exchange for or in connection with their ownership of, as applicable, their capital stock and their rights as such holders (“ Merger Consideration ”), as more particularly set out in Section 1.5(b), is as follows:

 

(i)          to the holders of (w) the shares of Company Common Stock, (x) the warrants issued by the Company for the purchase of shares of Company Common Stock (the “ Company Warrants ”), (y) the Company Exchangeable Shares issued by the Company’s Subsidiary, 1623753 Alberta Ltd. (the “ Company Exchangeable Shares ;” the Company Exchangeable Shares together with the Company Warrants, the “ Company Derivative Securities ”), and (z) the restricted stock issued pursuant to the SAE Holdings 2012 Stock Compensation Plan (the “ Company Restricted Stock ”; the Company Common Stock, Company Derivative Securities and the Company Restricted Stock collectively referred to as the “ Company Securities ”), in each case, issued and outstanding immediately prior to the Effective Time:

 

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(A)         6,448,413 shares of common stock, par value $0.0001, of Parent (“ Parent Common Stock ”) to be issued at the Closing;

 

(B)         $7,500,000 cash to be paid at the Closing;

 

(C)         $17,500,000 represented by the note in the form of Exhibit A annexed hereto (“ Seller Note ”) to be issued by Parent at the Closing; and

 

(D)         that number of EBITDA Shares (as defined in Section 1.16(d)) to be issued in accordance with Section 1.16; and

 

(ii)         to the holders of Series A Preferred issued and outstanding immediately prior to the Effective Time, $5,000,000 in cash to be paid at the Closing.

 

(b)           Conversion of Company Capital Stock . Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and this Agreement and without any action on the part of Parent or the Company, all shares of Company Common Stock and Company Restricted Stock will be automatically converted into, and all Company Warrants issued and outstanding immediately prior to the Effective Time will receive the right to in accordance with the terms thereof (in each case subject to Sections 1.5(f) and 1.5(g)), in the order set forth below, the Merger Consideration allocable thereto, as more particularly set forth below. The Company Exchangeable Shares shall be exchangeable for their pro rata portion of the Merger Consideration in accordance with their terms thereof.

 

All of the Company Securities shall be converted in exchange for the Merger Consideration as and in the order set forth below:

 

(i)          the amount of cash equal to $7,500,000 (the “ Cash Consideration ”) in exchange for the number of Company Securities equal to “a”; where “a” is calculated in accordance with the following formula:

 

“a” = Value of Cash
Consideration
Outstanding Common
Stock Number
  Value of Merger
Consideration

 

and thereafter;

 

(ii)         a Seller Note in the amount equal to $17,500,000 in exchange for the number of Company Securities equal to “b”; where “b” is calculated in accordance with the following formula:

 

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“b” = Value of Seller Note
Outstanding Common
Stock Number
  Value of Merger
Consideration

 

and thereafter

 

(iii)        the rights pursuant to Section 1.16 to receive that number of EBITDA Shares for each year with respect to which EBITDA Shares are issuable (the “ EBITDA Share Consideration ”) in exchange for the number of Company Securities equal to “c”; where “c” is calculated in accordance with the following formula:

“c” = Value of EBITDA Share
Consideration
Outstanding Common
Stock Number
  Value of Merger
Consideration

 

and thereafter;

 

(iv)        6,448,413 shares of Parent Common Stock (the “ Share Consideration ”) in exchange for the remaining Company Securities.

 

(v)         As used herein, “ Outstanding Common Stock Number ” means the number of shares of Company Common Stock outstanding immediately prior to the Effective Time, including all Company Restricted Stock and all shares of Company Common Stock issuable pursuant to the Company Derivative Securities, but excluding treasury shares and Company Common Stock held by Parent or owned by the Company or any direct or indirect wholly owned subsidiary of Parent or the Company immediately prior to the Effective Time.

 

(vi)        For purposes of the formulas above, the value of the Merger Consideration and each element thereof shall be determined as of the Closing by the Company in accordance with GAAP.

 

(vii)      At Closing the portion of the Share Consideration that constitutes the Escrow Shares (as defined in Section 1.11) shall be deposited in the Escrow Account in accordance with Section 1.11.

 

(viii)     At Closing, the portions of the Share Consideration remaining after deposit of the Escrow Shares and the Cash Consideration allocable to the Company Common Stock issued and outstanding immediately prior to the Effective Time, other than unvested Company Restricted Stock, shall be delivered to the Exchange Agent to be held and paid as provided in Section 1.6.

 

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(ix)        At Closing, the portions of the Share Consideration remaining after deposit of the Escrow Shares and the Cash Consideration allocable to the unvested Company Restricted Stock and the Company Derivative Securities shall be delivered to an escrow agent to be mutually agreed upon between Parent and the Representative (the “ Merger Consideration Escrow Agent ”) pursuant to an escrow agreement to be entered into at Closing among Parent, the Representative and the Merger Consideration Escrow Agent (the “ Merger Consideration Escrow Agreement ”). The Share Consideration so delivered to the Merger Consideration Escrow Agent shall be issued in the name of the Representative or its designee until such time as the parties hereto and Surviving Corp cause the Merger Consideration Escrow Agent to release the applicable Share Consideration and Cash Consideration from escrow as provided herein. The Merger Consideration Escrow Agent shall hold such consideration pursuant to the terms of The Merger Consideration Escrow Agreement to be paid, and the parties hereto and Surviving Corp shall cause the Merger Consideration Escrow Agent to pay, such consideration as follows:

 

(A)        As to shares of Company Common Stock issuable pursuant to the Company Exchangeable Shares outstanding immediately prior to the Effective Time, the portions of the Share Consideration and the Cash Consideration allocable to such shares of Company Common Stock shall be paid in accordance with Section 1.5(b) by the Merger Consideration Escrow Agent to each holder of Company Exchangeable Shares upon the conversion of such Company Exchangeable Shares in accordance with their terms.

 

(B)         As to shares of Company Common Stock issuable pursuant to the Company Warrants outstanding immediately prior to the Effective Time, the portions of the Share Consideration and the Cash Consideration allocable to such shares of Company Common Stock shall be paid in accordance with Section 1.5(b) by the Merger Consideration Escrow Agent to each holder of a Company Warrant upon exercise of such holder’s warrant.

 

(C)         As to any shares of Company Common Stock that are Company Restricted Stock that are outstanding but not vested immediately prior to the Effective Time:

 

(1)        The allocable portion of the Share Consideration for such Company Restricted Stock shall be issued in the name of the holder and delivered to the Merger Consideration Escrow Agent; provided that the certificates representing such Share Consideration when issued shall bear an appropriate restrictive legend;

 

(2)        The allocable portion of the Cash Consideration payable with respect to such Company Restricted Stock shall be paid to the Merger Consideration Escrow Agent; and

 

(3)        The allocable portion of the Share Consideration and the Cash Consideration shall be delivered to each holder of shares of Company Restricted Stock in the order set forth in Section 1.5(b), as applicable, upon the vesting from time to time of such Company Restricted Stock.

 

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(x)         At Closing, the Seller Note shall be issued by Parent to the Merger Consideration Escrow Agent, and the parties hereto and Surviving Corp shall cause the Merger Consideration Escrow Agent to either cause (A) the allocable portions of the payments made under such Seller Note to be distributed among the holders of Company Common Stock, including Company Restricted Stock, and Company Derivative Securities, as appropriate, or (B) Trio to reissue the Seller Note as provided in Section 5.26, in each case, in accordance with Section 1.5(b); provided, however, that in the case of Company Restricted Stock and Company Derivative Securities, no payments under a Seller Note shall be distributed to and no Seller Note shall be reissued to a holder of unvested Company Restricted Stock or Company Derivative Securities prior to the time that such Company Restricted Stock or Company Derivative Securities have vested or been exercised or exchanged, as applicable.

 

(xi)        The EBITDA Share Consideration shall be paid by Parent in accordance with Section 1.5(b) and as and when provided in Section 1.16.

 

(xii)       Notwithstanding the other provisions of this Section 1.5(b), the Share Consideration, Cash Consideration, the allocable portion of the Seller Note and rights to receive EBITDA Shares that would otherwise be issuable pursuant to this Section 1.5(b) to Persons who hold Dissenting Shares (as defined in Section 1.14(b)) and exercise their dissenters’ rights pursuant to Applicable Law shall not be issued to such Persons (or the Merger Consideration Escrow Agent) and shall be canceled.

 

(c)           Conversion of Preferred Stock . Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and this Agreement and without any action on the part of Parent or the Company, each share of Series A Preferred Stock issued and outstanding immediately prior to the Effective Time will be canceled and the rights pertaining thereto will be automatically converted into the right to receive $5,000,000 divided by the number of shares of Series A Preferred outstanding immediately prior to the Effective Time.

 

(d)           Exceptions . The conversions contemplated by Sections 1.5(b) and 1.5(c) shall not apply to or occur with respect to any shares of Company Common Stock or Series A Preferred to be canceled pursuant to Section 1.5(f) or the Dissenting Shares.

 

(e)           Surrender of Company Certificates . Subject to Sections 1.5(b) and 1.11, (i) the Merger Consideration shall be issued or paid to the holders of certificates representing the shares of Company Common Stock, vested Company Restricted Stock and Series A Preferred (the “ Company Certificates ”) upon surrender of their respective Company Certificates in the manner provided in Section 1.6 (or in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and indemnity, if required) in the manner provided in Section 1.8) and (ii) the Merger Consideration shall be issued or paid to the holders of (A) certificates representing the unvested Company Restricted Stock upon surrender of their respective certificates in the manner provided in the Merger Consideration Escrow Agreement, and (B) the Company Derivative Securities upon the due exercise or conversion thereof in accordance with the terms of such securities.

 

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(f)           Cancellation of Treasury and Parent-Owned Stock . Each share of Company Common Stock and Series A Preferred held by Parent or owned by the Company or any direct or indirect wholly owned subsidiary of Parent or the Company immediately prior to the Effective Time shall be canceled and extinguished without any conversion or payment in respect thereof.

 

(g)          Adjustments to Exchange Ratios . The number of shares of Parent Common Stock that the holders of Company Common Stock are entitled to receive as a result of the Merger shall be equitably adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock, Company Preferred Stock (as defined in Section 2.3) or Parent Common Stock), cash dividends, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Company Common Stock, Company Preferred Stock or Parent Common Stock occurring on or after the date hereof and prior to the Effective Time; provided there shall not be any adjustment with respect to the Company Dividend.

 

(h)          No Fractional Shares . No fraction of a share of Parent Common Stock will be issued by virtue of the Merger or the transactions contemplated hereby, and each Person who would otherwise be entitled to a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) shall receive, in lieu of such fractional share, one (1) share of Parent Common Stock.

 

(i)           No Further Ownership Rights in Company Stock . All the shares of Parent Common Stock and other Merger Consideration issued to the holders of Company Common Stock, vested Company Restricted Stock and Series A Preferred upon consummation of the Merger or, in the case of the EBITDA Shares, thereafter issuable, shall be deemed to have been issued in full satisfaction of all rights pertaining to the outstanding Company Common Stock, vested Company Restricted Stock and Series A Preferred and there shall be no further registration of transfers on the records of Surviving Corp of the shares of Company Common Stock, vested Company Restricted Stock or Series A Preferred that were outstanding immediately prior to the Effective Time.

 

(j)           Required Withholding . Parent shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any Person such amounts as are required to be deducted or withheld therefrom under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the person to whom such amounts would otherwise have been paid.

 

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(k)         Merger Consideration Escrow and Company Warrants . The parties hereto agree, and the Merger Consideration Escrow Agreement shall provide, that Parent shall solely be entitled to direct the Merger Consideration Escrow Agent to distribute Merger Consideration to holders of the Company Warrants that are exercised following the Merger in accordance with terms of such warrants, and that the Representative shall not have the authority to take any actions or make any decisions on behalf of such holders of Company Warrants under the Merger Consideration Escrow Agreement, other than the ability to vote the Share Considerationfor such time as the Share Consideration is held by the Merger Consideration Escrow Agent.Notwithstanding anything to the contrary in this Agreement, the Company affirms its obligations under the Company Warrants and, for the avoidance of doubt, no provision of this Agreement is to be construed as conflicting with any of the terms thereof.”

 

2.          Delivery of Merger Consideration .

 

(a)        Section 1.6(d) is hereby deleted in its entirety and the following is substituted in its place and stead:

 

“(d)      At or prior to the Effective Time, Parent shall deposit in trust with the Exchange Agent, the Share Consideration and the Cash Consideration to be issued pursuant to Section 1.5(b)(vii).”

 

(b)        Section 1.6(f) is hereby deleted in its entirety and the following is substituted in its place and stead:

 

“(f)      Any shares of Parent Common Stock and other Merger Consideration deposited with the Exchange Agent and not disbursed in accordance with Article I of the Agreement within 180 days after the Effective Time, shall be delivered by the Exchange Agent to the Merger Consideration Escrow Agent, and the Persons entitled to shares of Parent Common Stock and other Merger Consideration in accordance with Article I shall be entitled to look solely to the Merger Consideration Escrow Agent (subject to abandoned property, escheat or other similar Laws) for issuance thereof upon surrender of the Company Certificates held by them. Any shares of Parent Common Stock and other Merger Consideration held by the Merger Consideration Escrow Agent (including Merger Consideration relating to the unvested Company Restricted Stock or Company Derivative Securities) remaining unclaimed as of a date which is immediately prior to such time as such shares and other Merger Consideration would otherwise escheat to or become property of any government entity, or earlier upon the forfeiture, expiration or other termination of the unvested Company Restricted Stock or Company Derivative Securities to which the Merger Consideration relates, shall, to the extent permitted by Applicable Law, become the property of the other holders of the Company Securities pro rata in accordance with the provisions of Section 1.5(b), free and clear of any claims or interest of any Person previously entitled thereto); provided, however, that in the case of Company Restricted Stock and Company Derivative Securities, no such Merger Consideration shall be distributed to a holder of unvested Company Restricted Stock or Company Derivative Securities prior to the time that such Company Restricted Stock or Company Derivative Securities have vested or been exercised or exchanged, as applicable. Neither Parent nor the Exchange Agent will be liable to any Person entitled to payment under Article I for any Merger Consideration that is delivered to a public official pursuant to any abandoned property, escheat or similar Law.”

 

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3.           Representative . The first sentence of Section 1.12(b) of the Merger Agreement is hereby deleted in its entirety and the following sentence is substituted in its place and stead:

 

“The Stockholder is hereby appointed by the Company (and by execution of this Agreement hereby accepts such appointment) as the representative of the recipients of the Merger Consideration (the “ Representative ”), subject to Section 1.5(k),to (i) enter into the Merger Consideration Escrow Agreement to receive that portion of the Merger Consideration set forth in Section 1.5(a) herein in anticipation of the issuance of such Merger Consideration to the holders of the Company Restricted Stock and the Company Derivative Securities as provided in Section 1.5(b) and 1.6(f) and the terms of the Company Derivative Securities, which agreement will provide for the Representativeto (A) direct the distribution of Merger Consideration as such Company Restricted Stock vests and such Company Derivative Securities are exercised or converted, as applicable, and (B) maintain voting power over the Share Consideration issuable upon exercise of the Company Derivative Securities for such time as such Share Consideration is held by the Merger Consideration Escrow Agent, and (ii) take any and all actions and make any decisions required or permitted to be taken by such recipients under this Agreement,the Escrow Agreement or the Merger Consideration Escrow Agreement.”

 

4.           Treatment of the Company Derivative Securities . Section 1.15 of the Merger Agreement is hereby deleted in its entirety and the following is substituted in its place and stead:

 

1.15      Reserved.

 

5.           EBITDA Shares .

 

(a)         Section 1.16(a) is hereby deleted in its entirety and the following is substituted in its place and stead:

 

“(a)       If, for the fiscal year of Parent ending December 31, 2013, Parent has EBITDA equal to or greater than $46,000,000, Parent shall issue to the holders of Company Securities outstanding immediately prior to the Effective Time, in the aggregate, that number of shares of Parent Common Stock equal to (i) 248,016 shares plus (ii) an amount equal to 248,016 shares multiplied by the fraction the numerator of which is the actual EBITDA for such fiscal year, but not more than $50,000,000, less $46,000,000, and the denominator of which is $4,000,000.”

 

(b)         Section 1.16(b) is hereby deleted in its entirety and the following is substituted in its place and stead:

 

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“(b)        If, for the fiscal year of Parent ending December 31, 2014, Parent has EBITDA equal to or greater than $52,000,000, Parent shall issue to the holders of Company Securities outstanding immediately prior to the Effective Time, in the aggregate, that number of shares of Parent Common Stock equal to (i) 248,016 shares plus (ii) an amount equal to 248,016 shares multiplied by the fraction the numerator of which is the actual EBITDA for such fiscal year, but not more than $56,000,000, less $52,000,000, and the denominator of which is $4,000,000.”

 

(c)          Section 1.16(c) is hereby deleted in its entirety and the following is substituted in its place and stead:

 

“(c)        In the event that Parent meets one EBITDA target but fails to meet the other EBITDA target as described in Sections 1.16(a) or 1.16(b) but has cumulative EBITDA for the period January 1, 2013 to December 31, 2014 of at least $98,000,000, Parent shall issue to the holders of Company Securities outstanding immediately prior to the Effective Time, in the aggregate, that number of shares of Parent Common Stock equal to (i) 496,032 shares plus (ii) an amount equal to 496,032 shares multiplied by the fraction the numerator of which is the actual aggregate EBITDA for such two fiscal years, but not more than $106,000,000, less $98,000,000, and the denominator of which is $8,000,000, less (iii) the number of EBITDA shares issued with respect to the fiscal year for which the target was met.”

 

(d)          Section 1.16(f) is hereby deleted in its entirety and the following is substituted in its place and stead:

 

“(f)         EBITDA Shares shall be issued to the Persons entitled to them, in accordance with the procedures set forth in Section 1.5(b) applicable to the other portions of the Merger Consideration issuable to such Persons, no later than ten (10) days after the date the EBITDA Calculation with respect to which such EBITDA Shares are earned becomes conclusive and binding on the parties.”

 

6.           Capitalization . The fifth sentence of Section 2.3 of the Merger Agreement is hereby amended to delete the following parenthetical therefrom: ( ‘‘ Company Derivative Securities ) .

 

7.           Defined Terms . Article IX of the Merger Agreement is hereby amended to add the following in alphabetical order:

 

“‘ Cash Consideration Section 1.5(b)(i)
Company Derivative Securities Section 1.5(a)(i)
Company Exchangeable Shares Section 1.5(a)(i)
Company Restricted Stock Section 1.5(a)(i)
Company Securities Section 1.5(a)(i)
Company Warrants Section 1.5(a)(i)
EBITDA Share Consideration Section 1.5(b)(iii)
Merger Consideration Escrow Agent Section 1.5(b)(ix)
Merger Consideration Escrow Agreement Section 1.5(b)(ix)
Share Consideration Section 1.5(b)(iv)”

 

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8.           Parent Schedules . Schedule 3.17 and Schedule 3.19 to the Merger Agreement are hereby supplemented by adding to them the information set forth in Schedule 3.17 and Schedule 3.19 hereto, respectively.

 

9.           Stockholder Approval . By its execution of this Amendment, the Stockholder, in its capacity as a stockholder of the Company, hereby approves and adopts the Merger Agreement, as amended by this Amendment, and authorizes the Company and its directors and officers to take all actions necessary for the consummation of the Merger and the other transactions contemplated hereby pursuant to the terms of the Merger Agreement, as amended by this Amendment, and its exhibits. Such execution shall be deemed to be action taken by the irrevocable written consent of the Stockholder for purposes of the relevant provisions of the DGCL and other Applicable Law.

 

10.          Ratification; Conflicts . As amended by this Amendment, the parties hereby ratify and confirm the Merger Agreement in all respects, except that if any provision of this Amendment conflicts either expressly or by necessary implication with any provision of the Merger Agreement, this Amendment shall take precedence.

 

11.         General Provisions .

 

(a)          Definitions . Capitalized terms used in this Amendment that are not expressly defined herein shall have the meanings assigned to such terms in the Merger Agreement.

 

(b)          Entire Agreement . As amended by this Amendment, the Merger Agreement and the documents and instruments and other agreements among the parties hereto as contemplated by or referred to therein, including the Exhibits and Schedules thereto (a) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, including the letters of intent between Parent and the Company dated October 31, 2012 and November 7, 2012 (except to the extent expressly stated to survive the execution of the Merger Agreement and the consummation of the transactions contemplated thereby); and (b) are not intended to confer upon any other person any rights or remedies hereunder (except as specifically provided in the Merger Agreement).

 

(c)           Governing Law . This Amendment shall be governed by and construed in accordance with the internal Laws of the State of Delaware regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof.

 

(d)           Counterparts . This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same document and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart. Delivery by email or facsimile to counsel for the other party of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence.

 

[signatures on following page]

 

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IN WITNESS WHEREOF , the parties hereto have caused this Amendment to be executed as of the date and year first above written.

 

  TRIO MERGER CORP.
   
  By: /s/ Eric S. Rosenfeld
  Name:  Eric S. Rosenfeld
  Title:  Chairman and Chief Executive Officer
   
  TRIO MERGER SUB, INC.
   
  By: /s/ Eric S. Rosenfeld
  Name:  Eric S. Rosenfeld
  Title:  Chairman and Chief Executive Officer
   
  SAEXPLORATION HOLDINGS, INC.
   
  By: /s/ Brian Beatty
  Name:  Brian Beatty
  Title:  CEO/President
   
  CLCH, LLC
   
  By: /s/ Jeff Hastings
  Name:  Jeff Hastings
  Title:  Managing Member

 

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EXHIBIT 99.1

 

FOR IMMEDIATE RELEASE

 

CHIEF EXECUTIVE OFFICER OF TRIO MERGER CORP.

 

PURCHASES SHARES OF COMMON STOCK 

 

NEW YORK, NEW YORK, May 28, 2013 – Trio Merger Corp. (“Trio”) (NASDAQ:TRIO; OTCBB:TMRGW) announced today that Eric S. Rosenfeld, Trio’s Chief Executive Officer, has purchased an aggregate of 100,000 shares of common stock of Trio on May 28, 2013 for an aggregate purchase price of approximately $1,007,000. As previously announced, Trio has entered into a definitive merger agreement with SAExploration Holdings Inc. (“SAE”), providing for a business combination in which SAE will become a wholly owned subsidiary of Trio upon closing of the business combination. The business combination is expected to close in June 2013.

 

About Trio Merger Corp.

 

Trio was incorporated in Delaware on February 2, 2011 as a blank check company whose objective is to effect a merger, capital stock exchange, asset acquisition or other similar business combination with an operating business. Trio’s initial public offering was declared effective June 20, 2011 and was consummated on June 24, 2011, receiving net proceeds of $57.43 million through the sale of 6.0 million units at $10.00 per unit and $3.55 million from the sale of private placement warrants to the initial stockholders and the underwriters. On June 24, 2011, the underwriters exercised their over-allotment option and on June 27, 2011, Trio received net proceeds of $8.69 million from the sale of 900,000 units. Each unit was comprised of one share of Trio common stock and one warrant with an exercise price of $7.50. As of March 31, 2013, Trio held approximately $61,676,800 in a trust account maintained by an independent trustee, which will be released upon the consummation of the business combination.

 

The closing of the transaction with SAE is subject to, among other matters, approval by the stockholders of Trio and holders of 496,032 or more of the shares of Trio’s common stock issued in Trio’s initial public offering of securities not exercising their rights to convert their shares into a pro rata share of the trust account in accordance with Trio’s amended and restated certificate of incorporation.

 

About SAE

 

SAE is a holding company of various subsidiaries which cumulatively form a geographically diversified seismic data acquisition company. SAE provides a full range of 2D, 3D and 4D seismic data services to its clients, including surveying, program design, logistical support, data acquisition, processing, camp services, catering, environmental assessment and community relations. The Company services its multinational client base from offices in Canada, Alaska, Peru, Columbia, Bolivia, Papua New Guinea, New Zealand and Brazil. SAE’s website is www.saexploration.com.

 

 
 

 

The information on SAE’s website is not, and shall not be deemed to be, a part of this notice or incorporated in filings either Trio or SAE makes with the SEC.

 

Forward Looking Statements

 

This press release includes certain forward-looking statements, including statements regarding future financial performance, future growth and future acquisitions. These statements are based on SAE’s and Trio’s managements’ current expectations or beliefs and are subject to uncertainty and changes in circumstances. Actual results may vary materially from those expressed or implied by the statements herein due to changes in economic, business, competitive and/or regulatory factors, and other risks and uncertainties affecting the operation of SAE’s business. These risks, uncertainties and contingencies include: fluctuations in the levels of exploration and development activity in the oil and gas industry; business conditions; weather and natural disasters; changing interpretations of GAAP; outcomes of government reviews; inquiries and investigations and related litigation; continued compliance with government regulations; legislation or regulatory environments; requirements or changes adversely affecting the business in which SAE is engaged; fluctuations in customer demand; management of rapid growth; intensity of competition from other providers of seismic acquisition services; general economic conditions; geopolitical events and regulatory changes; the possibility that the merger does not close, including due to the failure to receive required security holder approvals or the failure of other closing conditions; and other factors set forth in Trio’s filings with the Securities and Exchange Commission. The information set forth herein should be read in light of such risks. Further, investors should keep in mind that certain of SAE’s financial results included in the preliminary proxy statement/information statement are unaudited and do not conform to SEC Regulation S-X and as a result such information may fluctuate materially depending on many factors. Accordingly, SAE’s financial results in any particular period may not be indicative of future results. Neither Trio nor SAE is under any obligation to, and expressly disclaims any obligation to, update or alter its forward-looking statements, whether as a result of new information, future events, changes in assumptions or otherwise.

 

EarlyBirdCapital, Inc. (“EBC”), the managing underwriter of Trio’s initial public offering (“IPO”) consummated in June 2011, is acting as Trio’s investment banker in these efforts, for which it will receive a fee of $2,415,000. Trio and its directors and executive officers and EBC may be deemed to be participants in the solicitation of proxies for the special meeting of Trio stockholders to be held to consider, among other proposals, approval of the merger.

 

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Stockholders of Trio and other interested persons are advised to read Trio’s preliminary proxy statement/information statement and, when available, Trio’s definitive proxy statement/information statement in connection with Trio’s solicitation of proxies for the special meeting because these proxy statements/information statements will contain important information. Such persons can also read Trio’s final prospectus, dated June 21, 2011, and Trio’s annual report on Form 10-K for the fiscal year ended December 31, 2012, for a description of the security holdings of the Trio officers and directors and of EBC and their respective interests as security holders in the successful consummation of the merger. The definitive proxy statement/information statement will be mailed to stockholders as of May 31, 2013 for voting on the merger. Stockholders will also be able to obtain a copy of the definitive proxy statement/information statement, without charge, by directing a request to: Trio Merger Corp., 777 Third Avenue, 37th Floor, New York, New York 10017. The preliminary proxy statement/information statement and the definitive proxy statement/information statement, once available, and the final prospectus and annual report on Form 10-K can also be obtained, without charge, at the Securities and Exchange Commission’s internet site ( http://www.sec.gov ).

 

Trio’s directors and executive officers, as well as SAE’s stockholders, directors and executive officers, and their respective affiliates, may enter into additional arrangements to purchase shares of common stock of Trio in open market or privately negotiated transactions. 

     
     
CONTACT: -OR- INVESTOR RELATIONS:
Trio Merger Corp.   The Equity Group Inc.
Eric Rosenfeld   Devin Sullivan
Chairman and CEO   Senior Vice President
(212) 319-7676   (212) 836-9608 / dsullivan@equityny.com 
     
David Sgro   Thomas Mei
Chief Financial Officer   Account Executive
(212) 319-7676   (212) 836-9614 / tmei@equityny.com 

 

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