<PAGE>
As filed with the Securities and Exchange Commission on April 16, 1998
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ODYSSEY MARINE EXPLORATION, INC.
----------------------------------------------------
Exact name of Registrant as specified in its charter
Nevada 84-1018684
- -------------------------------- --------------------------
(State or other jurisdiction of (I.R.S. Employer Identifi-
incorporation or organization) cation Number)
3507 Frontage Road, Suite 100, Tampa, Florida 33607
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(Address of principal executive offices, including Zip Code)
1997 STOCK OPTION PLAN
----------------------
(Full title of the plan)
John C. Morris, President
3507 Frontage Road, Suite 100, Tampa, Florida 33607
(813) 282-0855
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(Name, address and telephone number, including area code, of agent for
service)
Copy to: Jon D. Sawyer, Esq.
KRYS BOYLE FREEDMAN & SAWYER, P.C.
600 Seventeenth Street, Suite 2700, South Tower
Denver, Colorado 80202
(303) 893-2300
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
Amount
Proposed Maxi- Proposed Maxi- of
Title of Securities Amount to be mum Offering mum Aggregate Registra-
to be Registered be Registered Price Per Share Offering Price tion Fee
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 2,000,000 $3.00<FN1> $4,200,000 $1239.00
$.0001 Par Value Shares
- ------------------------------------------------------------------------------
<FN>
<FN1>
Based on the exercise price of the options outstanding under the 1997 Stock
Option Plan as to 200,000 shares and the average of the closing bid and ask
price of the Registrant's Common Stock on April 14, 1998, as reported on the
OTC Bulletin Boards, as to the remaining 1,800,000 shares.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by Odyssey Marine Exploration,
Inc. (the "Company") with the Securities and Exchange Commission under the
Securities Exchange Act of 1934 (the "Exchange Act") are hereby incorporated
herein by reference:
(1) The Company's Annual Report on Form 10-KSB for the fiscal year
ended February 28, 1997.
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended
May 31, 1997, August 31, 1997 and November 30, 1997.
(3) The Company's Current Report on Form 8-K dated August 8, 1997, as
amended.
(4) The description of the Common Stock as contained in the Company's
Registration Statement on Form 8-A filed pursuant to Section 12(b) of the
Exchange Act (SEC File No. 0-26136).
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The only statute, charter provision, bylaw, contract, or other arrange-
ment under which any controlling person, Director or Officer of the Company is
insured or indemnified in any manner against any liability which he may incur
in his capacity as such, is as follows:
(a) Subsection (1) of Section 78.751 of the Nevada Corporation Law
empowers a corporation to "indemnify any person who is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with the action, suit or proceeding if he acted in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the
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corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and that, with respect to any criminal action or proceeding, he
had reasonable cause to believe that his conduct was unlawful."
Subsection (2) of Section 78.751 empowers a corporation to "indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses, including amounts paid in settlement and
attorneys' fees actually and reasonably incurred by him in connection with the
defense or settlement of the action or suit if he acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation. Indemnification may not be made for any claim,
issue or matter as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action
or suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnify for such expenses as the court
deems proper."
Subsection 78.751(3) further provides that "to the extent that a
director, officer, employee or agent of a corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred
to in subsections 1 and 2, or in defense of any claim, issue or matter herein,
he must be indemnified by the corporation against expenses, including
attorneys' fees, actually and reasonably incurred by him in connection with
the defense."
(b) Article VII of the Company's Articles of Incorporation provides
that the Company is authorized to provide indemnification of its directors,
officers, employees and agents in excess of the indemnification expressly
permitted by Section 78.751 of the Nevada Corporation Law for breach of duty
to the Corporation and its shareholders subject only to the applicable limits
upon such indemnification as set forth in the Nevada Corporation Law.
(c) Article XI of the Company's Articles of Incorporation provides, as
permitted under Nevada law, that no director or officer shall be liable to the
Company or any shareholder for damages for breach of fiduciary duty, unless
such director or officer shall have acted or failed to act in a manner
involving intentional misconduct, fraud or a knowing violation of law, or
unless otherwise limited by Nevada law.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement:
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<PAGE>
EXHIBIT
NUMBER TITLE LOCATION
- ------- ----- --------
4.1 Articles of Incorporation Filed herewith electronically
4.2 Bylaws Filed herewith electronically
5 Opinion of Krys Boyle Freedman & Filed herewith electronically
Sawyer, P.C. as to the legality
of the securities being registered
23.1 Consent of Krys Boyle Freedman & Contained in its opinion
Sawyer, P.C. filed as Exhibit 5
23.2 Consent of Miller & McCollom Filed herewith electronically
23.3 Consent of Giunta, Ferlita & Filed herewith electronically
Walsh, P.A.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(I) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that subparagraphs (I) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in the
registration
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<PAGE>
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to Item 6, or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned thereunto
duly authorized, in the City of Tampa, State of Florida on the 16th day of
April, 1998.
ODYSSEY MARINE EXPLORATION, INC.
By/s/ John C. Morris
John C. Morris, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the capaci-
ties and on the dates indicated.
SIGNATURE TITLE DATE
/s/ John C. Morris President, Chief Executive April 16, 1998
John C. Morris Officer and Director
/s/ Gregory P. Stemm Vice President and Director April 16, 1998
Gregory P. Stemm
/s/ David A. Morris Treasurer (Chief Financial April 16, 1998
David A. Morris Officer and Principal
Accounting Officer)
/s/ William C. Callari Director April 16, 1998
William C. Callari
________________________ Director
Gerald Goodman
________________________ Director
Brad Baker
_______________________ Director
E. Eugene Cooke
ARTICLES OF INCORPORATION
OF
ODYSSEY MARINE EXPLORATION, INC.
KNOW ALL MEN BY THESE PRESENTS: That the undersigned incorporator being
a natural person of the age of twenty-one years or more and desiring to form a
body corporate under the laws of the State of Nevada does hereby sign, verify
and deliver in duplicate to the Secretary of State of the State of Nevada,
these Articles of Incorporation:
ARTICLE I
NAME
The name of the Corporation shall be: ODYSSEY MARINE EXPLORATION, INC.
ARTICLE II
PERIOD OF DURATION
The Corporation shall exist in perpetuity, from and after the date of
filing these Articles of Incorporation with the Secretary of State of the
State of Nevada unless dissolved according to law.
ARTICLE III
PURPOSES AND POWERS
1. Purposes. Except as restricted by these Articles of
Incorporation, the Corporation is organized for the purpose of transacting all
lawful business for which corporations may be incorporated pursuant to the
Nevada Business Corporation Act.
2. General Powers. Except as restricted by these Articles of
Incorporation, the Corporation shall have and may exercise all powers and
rights which a corporation may exercise legally pursuant to the Nevada
Business Corporation Act.
3. Issuance of Shares. The board of directors of the Corporation may
divide and issue any class of stock of the Corporation in series pursuant to a
resolution properly filed with the Secretary of State of the State of Nevada.
ARTICLE IV
CAPITAL STOCK
The aggregate number of shares which this Corporation shall have
authority to issue is: One Hundred Million (100,000,000) shares of $.0001 par
value each, which shares shall be designated "Common Stock"; and Ten Million
(10,000,000) shares of $.0001 par value each, which shares shall be designated
"Preferred Stock" and which may be issued in one or more series at the
discretion of the Board of Directors. The Board of Directors is hereby vested
with authority to fix by resolution or resolutions the designations and the
powers, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof, including
without limitation the dividend rate, conversion or exchange rights,
redemption price and liquidation preference, of any series of shares of
Preferred Stock, and to fix the number of shares constituting any such series,
and to increase or decrease the number of shares of any such series (but not
below the number of shares thereof then outstanding). In case the number of
shares of any such series shall be so decreased, the shares constituting such
decrease shall resume the status which they had prior to the adoption of the
resolution or resolutions originally fixing the number of shares of such
series. All shares of any one series shall be alike in every particular
except as otherwise provided by these Articles of Incorporation or the Nevada
Business Corporation Act.
No holder of any shares of the Corporation, whether now or hereafter
authorized, shall have any preemptive or preferential right to acquire any
shares or securities of the Corporation, including shares or securities held
in the treasury of the Corporation.
ARTICLE V
CUMULATIVE VOTING
Each outstanding share of Common Stock shall be entitled to one vote and
each fractional share of Common Stock shall be entitled to a corresponding
fractional vote on each matter submitted to a vote of shareholders. A
majority of the shares of Common Stock entitled to vote, represented in person
or by proxy, shall constitute a quorum at a meeting of shareholders. Except
as otherwise provided by these Articles of Incorporation or the Nevada
Business Corporation Act, if a quorum is present, the affirmative vote of a
majority of the shares represented at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders. Cumulative voting shall
not be allowed in the election of directors of this Corporation.
Shares of Preferred Stock shall only be entitled to such vote as is
determined by the Board of Directors prior to the issuance of such stock,
except as required by law, in which case each share of Preferred Stock shall
be entitled to one vote.
ARTICLE VI
TRANSACTIONS WITH INTERESTED DIRECTORS OR OFFICERS
No contract or other transaction between the Corporation and one or more
of its directors or officers, or between the Corporation and any corporation,
firm or association in which one or more of its directors or officers are
directors or officers or are financially interested, shall be either void or
voidable solely because of such relationship or interest or solely because
such director or officer is present at the meeting of the board of directors
or a committee thereof which authorizes, approves, or ratifies such contract
or transaction or solely because their votes are counted for such purpose, if:
(a) The fact of such relationship or interest is disclosed or
known to the board of directors or committee and noted in the minutes, and the
board or committee authorizes, approves, or ratifies the contract or
transaction in good faith by a vote or consent sufficient for the purpose
without counting the votes or consents of such interested directors; or
(b) The fact of such relationship or interest is disclosed or
known to the shareholders entitled to vote and they authorize, approve, or
ratify such contract or transaction in good faith bya majority vote or written
consent. The votes of the common or interested directors or officers must be
counted in any such vote of stockholders; or
(c) The fact of such relationship or interest is not disclosed
or known to the director or officer at the time the transaction is brought
before the board of directors of the corporation for action; or
(d) The contract or transaction is fair and reasonable as to the
Corporation at the time it is authorized or approved.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or a committee
thereof which authorizes, approves, or ratifies such contract or transaction,
and if the votes of the common or interested directors are not counted at the
meeting, then a majority of the disinterested directors may authorize, approve
or ratify the contract or transaction.
ARTICLE VII
INDEMNIFICATION
The Corporation is authorized to provide indemnification of its
directors, officers, employees and agents; whether by bylaw, agreement, vote
of shareholders or disinterested directors or otherwise, in excess of the
indemnification expressly permitted by Section 78.751 of the Nevada Business
Corporation Act for breach of duty to the Corporation and its shareholders,
subject only to the applicable limits upon such indemnification as set forth
in the Nevada Business Corporation Act. Any repeal or modification of this
Article VII or Article XI shall not adversely affect any right or protection
of a director or officer of the Corporation existing at the time of such
repeal or modification.
ARTICLE VIII
ADOPTION AND AMENDMENT OF BYLAWS
The initial Bylaws of the Corporation shall be adopted by its board of
directors. Subject to repeal or change by action of the shareholders, the
power to alter, amend or repeal the Bylaws or adopt new Bylaws shall be vested
in the board of directors. The Bylaws may contain any provisions for the
regulation and management of the affairs of the Corporation not inconsistent
with law or these Articles of Incorporation.
ARTICLE IX
RESIDENT AGENT
The name of the Corporation's resident agent and the street address in
Washoe County, Nevada for such resident agent where process may be served are
The Corporation Trust Company of Nevada, One East First Street, Reno, Nevada
89501.
The resident agent may be changed in the manner permitted by law.
ARTICLE X
INITIAL BOARD OF DIRECTORS
The number of directors of the Corporation shall be fixed by the Bylaws
of the Corporation, and the number of directors of the Corporation may be
changed from time to time by consent of the Corporation's directors. The
initial board of directors of the Corporation shall consist of six (6)
directors. The names and addresses of the persons who shall serve as
directors until the first annual meeting of shareholders and until their
successors are elected and shall qualify are:
John C. Morris Gregory P. Stemm William C. Callari
3507 Frontage Road 3507 Frontage Road 3507 Frontage Road
Suite 100 Suite 100 Suite 100
Tampa, FL 33607 Tampa, FL 33607 Tampa, FL 33607
E. Eugene Cooke Brad Baker Gerald Goodman
3507 Frontage Road 3507 Frontage Road 3507 Frontage Road
Suite 100 Suite 100 Suite 100
Tampa, FL 33607 Tampa, FL 33607 Tampa, FL 33607
ARTICLE XI
LIMITATION OF LIABILITY OF
DIRECTORS AND OFFICERS TO CORPORATION AND SHAREHOLDERS
No director or officer shall be liable to the Corporation or any
shareholder for damages for breach of fiduciary duty as a director or officer,
except for any matter in respect of which such director or officer (a) shall
be liable under Section 78.300 of the Nevada Business Corporation Act or any
amendment thereto or successor provision thereto; or (b) shall have acted or
failed to act in a manner involving intentional misconduct, fraud or a knowing
violation of law. Neither the amendment nor repeal of this Article, nor the
adoption of any provision in the Articles of Incorporation inconsistent with
this Article, shall eliminate or reduce the effect of this Article in respect
of any matter occurring prior to such amendment, repeal or adoption of an
inconsistent provision. This Article shall apply to the full extent now
permitted by Nevada law or as may be permitted in the future by changes or
enactments in Nevada law, including without limitation Section 78.300 and/or
the Nevada Business Corporation Act.
ARTICLE XII
INCORPORATOR
The name and address of the incorporator are: Jon D. Sawyer, 600 - 17th
Street, Suite 2700, South Tower, Denver, Colorado 80202.
IN WITNESS WHEREOF, the above-named incorporator has signed these
Articles of Incorporation this 26th day of August, 1997.
/s/ Jon D. Sawyer
Jon D. Sawyer
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
On the 26th day of August, 1997 personally appeared before me, a notary
public, Jon D. Sawyer, who acknowledged before me that he executed the
foregoing Articles of Incorporation.
My commission expires: 7/21/98
/s/ Margaret A. Beck
Notary Public
600 - 17th Street
Suite 2700 South Tower
Denver, CO 80202
BYLAWS
OF
ODYSSEY MARINE EXPLORATION, INC.
(A Nevada corporation)
ARTICLE I - STOCKHOLDERS
1. Certificates Representing Stock. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of, the corporation by the Chairman or Vice-Chairman of the Board of
Directors, if any, or by the President or a Vice-President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the corporation or by agents designated by the Board of Directors,
certifying the number of shares owned by him in the corporation and setting
forth any additional statements that may be required by the Nevada Business
Corporation Act. If any such certificate is countersigned or otherwise
authenticated by a transfer agent or transfer clerk or by a registrar other
than the corporation, a facsimile of the signature of any such officers or
agents designated by the Board may be printed or lithographed upon such
certificate in lieu of the actual signatures. In case any officer or officers
who shall have signed, or whose facsimile signature or signatures shall have
been used on, any such certificate or certificates shall cease to be such
officer or officers of the corporation before such certificate or certificates
shall have been delivered by the corporation, such certificate or certificates
may nevertheless be adopted by the corporation and be issued and delivered as
though the person or persons who signed such certificate or certificates, or
whose facsimile signature or signatures shall have been used thereon, had not
ceased to be such officer or officers of the corporation.
Whenever the corporation shall be authorized to issue more than
one class of stock or more than one series of any class of stock, and whenever
the corporation shall issue any shares of special stock, the certificates
representing shares of any such class or series or of any such special stock
shall set forth thereon the statements prescribed by the Nevada Business
Corporation Act. Any restrictions on the transfer or registration of transfer
of any shares of stock of any class or series shall be noted conspicuously on
the certificate representing such shares.
The corporation may issue a new certificate of stock in place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed and the Board of Directors may require the owner of any lost, stolen
or destroyed certificate, or his legal representative, to give the corporation
a bond sufficient to indemnify the corporation against any claim that may be
made against it on account of the alleged loss, theft, or destruction of any
such certificate or the issuance of any new certificate.
2. Fractional Share Interests. The corporation shall not be obliged
to but may execute and deliver a certificate for or including a fraction of a
share. In lieu of executing and delivering a certificate for a fraction of a
share, the corporation may pay to any person otherwise entitled to become a
holder of a fraction of a share an amount in cash specified for such purpose
as the value thereof in the resolution of the Board of Directors, or other
instrument pursuant to which such fractional share would otherwise be issued,
or, if not specified therein, then as may be determined for such purpose by
the Board of Directors of the issuing corporation; or may execute and deliver
registered or bear scrip over the manual or facsimile signature of an officer
of the corporation or of its agent for that purpose, exchangeable as therein
provided for full share certificates, but such scrip shall not entitle the
holder to any rights as a stockholder except as therein provided. Such scrip
may provide that it shall become void unless the rights of the holders are
exercised within a specified period and may contain any other provisions or
conditions that the corporation shall deem advisable. Whenever any such scrip
shall cease to be exchangeable for full share certificates, the shares that
would otherwise have been issuable as therein provided shall be deemed to be
treasury shares unless the scrip shall contain other provisions for their
disposition.
3. Stock Transfers. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the corporation shall be made
only on the stock ledger of the corporation by the registered holder thereof,
or by his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for
such shares of stock properly endorsed and the payment of all taxes, if any,
due thereon.
4. Record Date for Stockholders. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or the allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the directors may fix, in advance, a
record date, which shall not be more than sixty days nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
action. If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the date on which
notice is given, or, if notice is waived, at the close of business on the day
next preceding the date on which the meeting is held; the record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of directors is
necessary, shall be the day on which the first written consent is expressed;
and the record date for determining stockholders for any other purpose shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at any meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
5. Meaning of Certain Terms. As used in these Bylaws in respect of
the right to notice of a meeting of stockholders or a waiver thereof or to
participate or vote thereat or to consent to dissent in writing in lieu of a
meeting, as the case may be, the term "share" or "shares" or "share of stock"
or "shares of stock" or "stockholder" or "stockholders" refers to an
outstanding share or shares of stock and to a holder or holders of record of
outstanding shares of stock when the corporation is authorized to issue only
one class of shares of stock, and said reference is also intended to include
any outstanding share or shares of stock and any holder or holders of record
of outstanding shares of stock of any class upon which or upon whom the
Articles of Incorporation confers such rights where there are two or more
classes or series of shares of stock or upon which or upon whom the Nevada
Business Corporation Act confers such rights notwithstanding that the Articles
of Incorporation may provide for more than one class or series of shares of
stock, one or more of which are limited or denied such rights thereunder;
provided, however, that no such right shall vest in the event of an increase
or a decrease in the authorized number of shares of stock of any class or
series which is otherwise denied voting rights under the provisions of the
Articles of Corporation.
6. Stockholder Meetings.
Time. The annual meeting shall be held on the date and at the
time fixed, from time to time, by the directors, provided, that the first
annual meeting shall be held on a date within thirteen months after the
organization of the corporation, and each successive annual meeting shall be
held on a date within thirteen months after the date of the preceding annual
meeting. A special meeting shall be held on the date and at the time fixed by
the directors.
Place. Annual meetings and special meetings shall be held at such
place, within or without the State of Nevada, as the directors may, from time
to time, fix. Whenever the directors shall fail to fix such place, the
meeting shall be held at the principal office of the corporation in the State
of Nevada.
Call. Annual meetings and special meetings may be called by the
directors or by any officer instructed by the directors to call the meeting.
Notice or Waiver of Notice. Notice of all meetings shall be in
writing and signed by the President or a Vice-President, or the Secretary, or
an Assistant Secretary, or by such other person or persons as the directors
shall designate. Such notice shall state the purpose or purposes for which
the meeting is called and the time when, and the place, where it is to be
held. A copy of such notice shall be either delivered personally to, or shall
be mailed postage prepaid, to each stockholder not less than ten nor more than
sixty days before such meeting. If mailed, it shall be directed to a
stockholder at his address as it appears upon the records of the corporation.
Any stockholder may waive notice of any meeting by a writing signed by him, or
his duly authorized attorney, either before or after the meeting; and whenever
notice of any kind is required to be given under the provisions of the Nevada
Business Corporation Act, a waiver thereof in writing and duly signed whether
before or after the time stated therein, shall be deemed equivalent thereto.
Conduct of Meeting. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and
if present and acting - the Chairman of the Board, if any, the Vice-Chairman
of the Board, if any, the President, a Vice-President, or, if none of the
foregoing is in office and present and acting, by a chairman to be chosen by
the stockholders. The Secretary of the corporation, or in his absence, an
Assistant Secretary, shall act as secretary of every meeting, but if neither
the Secretary nor an Assistant Secretary is present the Chairman of the
meeting shall appoint a secretary of the meeting.
Proxy Representation. Every stockholder may authorize another
person or persons to act for him by proxy appointed by an instrument in
writing in all matters in which a stockholder is entitled to participate,
whether by voting or participating at a meeting, or expressing consent or
dissent without a meeting. Every proxy must be executed by the stockholder or
by his attorney-in-fact. No proxy shall be valid after the expiration of six
months from the date of its creation, unless coupled with an interest or
unless the stockholder specifies in it therein the length of time for which it
is to continue in force, which in no case shall exceed seven years from the
date of its creation.
Inspectors. The directors, in advance of any meeting, may, but
need not, appoint one or more inspectors of election to act at the meeting or
any adjournment thereof. If an inspector or inspectors are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the directors
in advance of the meeting or at the meeting by the person presiding thereat.
Each inspector, if any, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his
ability. The inspectors, if any, shall determine the number of shares of
stock outstanding and the voting power of each, the shares of stock
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and determine
all challenges and questions arising in connection with the right to vote,
count and tabulate all votes, ballots or consents, determine the result, and
do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the person presiding at the meeting, the
inspector or inspectors, if any, shall make a report in writing of any
challenge, question or matter determined by him or them and execute a
certificate of any fact found by him or them.
Quorum. The holders of a majority of the outstanding shares of
stock or of the voting power, as the case may be, shall constitute a quorum at
a meeting of stockholders for the transaction of any business unless the
action to be taken at the meeting shall require a different proportion. The
stockholders present may adjourn the meeting despite the absence of a quorum.
Voting. Each share of stock shall entitle the holder thereof to
one vote. In the election of directors, a plurality of the votes cast shall
elect. Any other action shall be authorized by a majority of the votes cast
except where the Nevada Business Corporation Act, the Articles of
Incorporation, or these Bylaws prescribe a different percentage of votes
and/or a different exercise of voting power. In the election of directors,
voting need not be by ballot; and, except as otherwise may be provided by the
Nevada Business Corporation Act, voting by ballot shall not be required for
any other action.
7. Stockholder Action Without Meetings. Except as may otherwise be
provided by the Nevada Business Corporation Act, any action required or
permitted to be taken by the vote of stockholders at a meeting, may be taken
without a meeting if authorized by the written consent of stockholders holding
at least a majority of the voting power; provided that if a different
proportion of voting power is required for such action at a meeting, then that
proportion of written consents shall be required. In no instance where action
is authorized by written consent need a meeting of stockholders be called or
notice given. The written consent must be filed with the minutes of the
proceedings of the stockholders. Any written consent shall be subject to the
requirements of Section 78.320 of the Nevada Business Corporation Act and of
any other applicable provision of law.
ARTICLE II - DIRECTORS
1. Functions and Definition. The business and affairs of the
corporation shall be managed by the Board of Directors of the corporation.
The Board of Directors shall have authority to fix the compensation of the
members thereof for services in any capacity. The use of the phrase "whole
Board" herein refers to the total number of directors which the corporation
would have if there were no vacancies.
2. Qualifications and Number. Each director must be at least 18
years of age. A director need not be a stockholder or a resident of the State
of Nevada. The number of directors constituting the Board of Directors shall
be determined and may be increased or decreased, to not less than one
director, by resolution of the Board of Directors.
3. Election and Term. Directors may be elected in the manner
prescribed by the provisions of Sections 78.320 through 78.335 of the Nevada
Business Corporation Act. The first Board of Directors shall hold office
until the first election of directors by stockholders and until their
successors are elected and qualified or until their earlier resignation or
removal. Any director may resign at any time upon written notice to the
corporation. Thereafter, directors who are elected at an election of
directors by stockholders, and directors who are elected in the interim to
fill vacancies and newly created directorships, shall hold office until the
next election of directors by stockholders and until their successors are
elected and qualified or until their earlier resignation or removal. In the
interim between elections of directors by stockholders, newly created
directorships and any vacancies in the Board of Directors, including any
vacancies resulting from the removal of directors for cause or without cause
by the stockholders and not filled by said stockholders, may be filled by the
vote of a majority of the remaining directors then in office, although less
than a quorum, or by the sole remaining director.
4. Meetings.
Time. Meetings shall be held at such time as the Board shall fix,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the director may conveniently assemble.
Place. Meetings shall be held at such place within or without the
State of Nevada as shall be fixed by the Board.
Call. No call shall be required for regular meetings for which
the time and place have been fixed. Special meetings may be called by or at
the direction of the Chairman of the Board, if any, the Vice-Chairman of the
board, if any, or the President, or of a majority of the directors in office.
Notice or Actual or Constructive Waiver. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral or any other mode of notice of the time and place shall be given
for special meetings in sufficient time for the convenient assembly of the
directors thereat. Notice if any need not be given to a director or to any
member of a committee of directors who submits a written waiver of notice
signed by him before or after the time stated therein.
Quorum and Action. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such majority,
whereupon a majority of the directors in office shall constitute a quorum,
provided, that such majority shall constitute at least one-third of the whole
Board. A majority of the directors present, whether or not a quorum is
present, may adjourn a meeting to another time and place. Except as the
Articles of Incorporation or these Bylaws may otherwise provide, and except as
otherwise provided by the Nevada Business Corporation Act, the act of a
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board. The quorum and voting provisions herein stated
shall not be construed as conflicting with any provisions of the Nevada
Business Corporation Act and these Bylaws which govern a meeting of directors
held to fill vacancies and newly created directorships in the Board or action
of disinterested directors.
Members of the Board or of any committee which may be designated
by the Board may participate in a meeting of the Board or of any such
committee, as the case may be, by means of a conference telephone network or a
similar communications method by which all persons participating in the
meeting hear each other. Participation in a meeting by said means shall
constitute presence in person at any such meeting. Each person participating
in a meeting by such means shall sign the minutes thereof.
Chairman of the Meeting. The Chairman of the Board, if any, and
if present and acting, shall preside at all meetings. Otherwise, the Vice-
Chairman of the Board, if any and if present and acting, or the President, if
present and acting, or any other director chosen by the Board, shall preside.
5. Removal of Directors. Any or all of the directors may be removed
for cause or without cause by the holders of at least two thirds of the voting
power of the outstanding stock of the corporation. One or more of the
directors may be removed for cause by the Board of Directors.
6. Committees. Whenever its number consists of two or more, the
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of one or more of
the directors of the corporation and each committee to have such powers and
duties as the Board shall determine. Any such committee, to the extent
provided in the resolution or resolutions of the Board, shall have and may
exercise the powers and authority of the Board of Directors in the management
of the business and affairs of the corporation and may authorize the seal or
stamp of the corporation to be affixed to all papers on which the corporation
desires to place a seal or stamp.
7. Written Action. Any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if, before or after the action, a written consent thereto is
signed by all the members of the Board or committee, as the case may be. The
written consent must be filed with the minutes of proceedings of the Board or
committee.
ARTICLE III - OFFICERS
1. Officers. The corporation shall have a President, a Secretary, a
Treasurer, a Resident Agent, and, if deemed necessary, expedient or desirable
by the Board of Directors, a Chairman of the Board, a Vice-Chairman of the
Board, a Chief Executive Officer, an Executive Vice-President, one or more
other Vice-Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, and such other officers, agents and factors with such
titles as the resolution choosing them shall designate. Each of any such
officers, agents and factors shall be chosen by the Board of Directors or
chosen in the manner determined by the Board of Directors.
2. Qualifications. Except as may otherwise be provided in the
resolution choosing him, no officer other than the Chairman of the Board, if
any, and the Vice-Chairman of the Board, if any, need be a director.
Any two or more offices may be held by the same person, as the
directors may determine.
3. Term of Office. Unless otherwise provided in the resolution
choosing him, each officer, except the Resident Agent, shall be chosen for a
term which shall continue until the meeting of the Board of Directors
following the next annual meeting of stockholders and until his successor
shall have been chosen and qualified. The Resident Agent shall serve until
his or its successor shall have been chosen and qualified.
Any officer may be removed, with or without cause, by the Board of
Directors or in the manner determined by the Board.
Any vacancy in any office may be filled by the Board of Directors
or in the manner determined by the Board.
4. Duties and Authority. All officers of the corporation shall have
such authority and perform such duties in the management and operation of the
corporation as shall be prescribed in the resolution designating and choosing
such officers and prescribing their authority and duties, and shall have such
additional authority and duties as are incident to their office except to the
extent that such resolutions or instruments may be inconsistent therewith.
ARTICLE IV - CORPORATE OPPORTUNITY
The officers, directors and other members of management of this
Corporation shall be subject to the doctrine of "corporate opportunities" only
insofar as it applies to business opportunities in which this Corporation has
expressed an interest as determined from time to time by this Corporation's
board of directors as evidenced by resolutions appearing in the Corporation's
minutes. Once such areas of interest are delineated, all such business oppor-
tunities within such areas of interest which come to the attention of the
officers, directors, and other members of management of this Corporation shall
be disclosed promptly to this Corporation and made available to it. The Board
of Directors may reject any business opportunity presented to it and
thereafter any officer, director or other member of management may avail
himself of such opportunity. Until such time as this Corporation, through its
board of directors, has designated an area of interest, the officers,
directors and other members of management of this Corporation shall be free to
engage in such areas of interest on their own and this doctrine shall not
limit the rights of any officer, director or other member of management of
this Corporation to continue a business existing prior to the time that such
area of interest is designated by the Corporation. This provision shall not
be construed to release any employee of this Corporation (other than an
officer, director or member of management) from any duties which he may have
to this Corporation.
ARTICLE V - PRINCIPAL AND REGISTERED OFFICES
Initially, the principal office and place of business of the corporation
will be located in the State of Florida at 3507 Frontage Road, Suite 100,
Tampa, Florida 33607. The Company's registered office in the State of Nevada
is located at The Corporation Trust Company of Nevada, 1 East First Street,
Reno, Nevada 89501. Other offices and places of business may be established
from time to time by resolution of the Board of Directors or as the business
of the corporation may require.
The corporation shall maintain at said registered office a copy of its
Articles of Incorporation, and all amendments thereto, and a copy of these
Bylaws, and all amendments thereto, as certified by the Secretary of the
corporation. The corporation shall also keep at said registered office a
stock ledger or a duplicate stock ledger, revised annually, containing the
names, alphabetically arranged, of all persons who are stockholders of the
corporation, showing their places of residence, if known, and the number of
shares held by them respectively or a statement setting out the name of the
custodian of the stock ledger or duplicate stock ledger, and the present and
complete post office address, including street and number, if any, where such
stock ledger or duplicate stock ledger is maintained.
ARTICLE VI - CORPORATE SEAL OR STAMP
The Corporate seal or stamp shall be in such form as the Board of
Directors may prescribe.
ARTICLE VII - FISCAL YEAR
The fiscal year of the corporation shall be March 1 through February 28
of each year.
ARTICLE VIII - CONTROL OVER BYLAWS
The power to amend, alter and repeal these Bylaws and to make new Bylaws
shall be vested in the Board of Directors subject to the Bylaws, if any,
adopted by the stockholders.
I HEREBY CERTIFY that the foregoing is a full, true and correct copy of
the Bylaws of Odyssey Marine Exploration, Inc., a Nevada corporation, as in
effect on the date hereof.
WITNESS my hand and the seal or stamp of the corporation.
Dated this 2nd day of September, 1997.
/s/ David Morris
(SEAL) David Morris, Secretary
KRYS BOYLE FREEDMAN & SAWYER, P.C.
Attorneys At Law
600 Seventeenth Street, Suite 2700, South Tower (303) 893-2300
Denver, CO 80202 FAX (303) 893-2882
April 16, 1998
Odyssey Marine Exploration, Inc.
3507 Frontage Road, Suite 100
Tampa, Florida 33607
Re: SEC Registration Statement on Form S-8
Gentlemen:
We are counsel for Odyssey Marine Exploration, Inc., a Nevada corporation
(the "Company") in connection with its registration under the Securities
Act of 1933, as amended (the "Act"), of 2,000,000 shares of common stock which
may be issued upon the exercise of options granted under the Company's 1997
Stock Option Plan through a Registration Statement on Form S-8 as to which
this opinion is a part, to be filed with the Securities and Exchange Commission
(the "Commission").
In connection with rendering our opinion as set forth below, we have
reviewed and examined originals or copies identified to our satisfaction of
the following:
(1) Articles of Incorporation of the Company as filed with the
Secretary of State of the State of Nevada.
(2) Minute book containing the written deliberations and resolutions
of the Board of Directors and Shareholders of the Company.
(3) The Registration Statement.
(4) The exhibits to the Registration Statement to be filed with the
Commission.
We have examined such other documents and records, instruments and
certificates of public officials, officers and representatives of the Company,
and have made such other investigations as we have deemed necessary or
appropriate under the circumstances.
Based upon the foregoing and in reliance thereon, it is our opinion that
the 2,000,000 shares of the Company's $.0001 par value common stock which may
be issued upon the exercise of options under the 1997 Stock Option Plan will,
upon the purchase, receipt of full payment, issuance and delivery in accordance
with the terms of such agreement, be duly and validly authorized,
legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
referenced Registration Statement on Form S-8.
Very truly yours,
KRYS BOYLE FREEDMAN & SAWYER, P.C.
By /s/ Jon D. Sawyer
Jon D. Sawyer
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation in this Registration Statement on Form S-8 of
Odyssey Marine Exploration, Inc. of our report dated April 28, 1997, on our
audit of the financial statements of Odyssey Marine Exploration, Inc. (formerly
named Universal Capital Corporation) appearing in the Company's Annual
Report on Form 10-KSB for the year ended February 28, 1997.
/s/ Miller and McCollom
MILLER AND MCCOLLOM
April 15, 1998
GIUNTA, FERLITA & WALSH, P.C.
Certified Public Accountants
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation in this Registration Statement on
Form S-8 of Odyssey Marine Exploration, Inc. of our report dated September 18,
1997, relating to the financial statements of Remarc International, Inc.
appearing in an amendment to the Company's Current Report on Form 8-K dated
August 8, 1997.
/s/ Giunta, Ferlita & Walsh, P.A.
Giunta, Ferlita & Walsh, P.A.
April 13, 1998
