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As filed with the Securities and Exchange Commission on August 2, 2000
SEC Registration No. 333-______
U.S. SECURITIES AND EXCHANGE COMMISSION
FORM S-3 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ODYSSEY MARINE EXPLORATION, INC.
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(Exact Name of Registrant as Specified in its Charter)
Nevada 84-1018684
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(State or Other Jurisdiction (IRS Employer Identification Number)
of Incorporation)
3507 Frontage Road, Suite 100, Tampa, Florida 33607
(813) 282-0855
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(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
John C. Morris, President
3507 Frontage Road, Suite 100, Tampa, Florida 33607
(813) 282-0855
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(Name, Address and Telephone Number of Agent for Service)
Copy to:
Jon D. Sawyer, Esq.
Krys Boyle Freedman & Sawyer, P.C.
600 17th Street, Suite 2700 South Tower
Denver, Colorado 80202
(303) 893-2300
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: ___
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: _X_
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the
same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
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CALCULATION OF REGISTRATION FEE
____________________________________________________________________________
Proposed Proposed
Maximum Maximum
Title of Each Class Offering Aggregate Amount of
of Securities to be Amount to be Price Per Offering Registration
Registered Registered Unit Price Fee
____________________________________________________________________________
Common Stock, $.0001 3,945,018(1) $.34375(2) $1,356,100(2) $358.01(3)
Par Value
_____________________________________________________________________________
(1) In accordance with Rule 416 under the Securities Act of 1933, this
registration statement also covers an indeterminable number of shares of
common stock, $.0001 par value, as may become issuable upon conversion of the
series A convertible preferred stock and the exercise of the common stock
purchase warrants to prevent dilution resulting from stock splits, stock
dividends, and similar transactions in accordance with the terms of the series
A convertible preferred stock and the common stock purchase warrants.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based on the average of the closing bid and ask prices
of the common stock as reported on the OTC Bulletin Board on August 1, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
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PROSPECTUS SUBJECT TO COMPLETION DATED AUGUST 2, 2000
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The information in this prospectus is not complete and may be changed. The
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
ODYSSEY MARINE EXPLORATION, INC.
3,945,018 Shares of Common Stock
The shares of common stock are being offered by certain selling
shareholders.
The common stock is traded in the over-the-counter market and is quoted
on the OTC Bulletin Board (Symbol: OMEX). On August 1, 2000 the closing bid
and ask prices of the common stock were $0.3125 and $0.375, respectively.
This investment involves a high degree of risk. You should purchase
shares only if you can afford a complete loss. See "Risk Factors" beginning
on page 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary
is a criminal offense.
_______, 2000
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TABLE OF CONTENTS
PAGE
COMPANY SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . 3
RISK FACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
RECENT EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 8
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . 8
SELLING SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . . . 9
PLAN OF DISTRIBUTION. . . . . . . . . . . . . . . . . . . . . . . 14
DESCRIPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . 16
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . 18
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE . . . . . . . . 18
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COMPANY SUMMARY
Odyssey is engaged in the business of conducting archaeologically
sensitive recoveries of cargo and artifacts from various shipwrecks. We plan
to produce revenue by exhibiting the artifacts and selling merchandise
consisting of certain cargoes, replicas of the artifacts and general
merchandise relating to the specific shipwrecks or the shipwreck business in
general. In addition, we plan on producing revenue in the form of project
sponsorships and through the sale of intellectual property rights.
Odyssey is currently conducting search and identification operations on
the Republic and Cambridge projects.
The Cambridge Project is an expedition to locate, recover and market the
artifacts and cargo of a large colonial warship, lost in a severe storm in the
late 17th Century. Based on our research, we believe that there is a high
probability that the ship was carrying a cargo of coins with a bullion value
of between $20 and $75 million and a much higher potential numismatic value.
This will depend on whether the specie referenced in research documents is
gold or silver, its denomination and condition, and the method chosen for
marketing.
The Republic project is an attempt to locate, identify, recover, conserve
and market the cargo of the Republic, a steam ship that sank after the Civil
War. According to our research, the Republic's cargo included approximately
48,000 troy ounces of gold. While the bullion value is approximately $13
million, much of the gold may have been shipped as dust, nuggets, and
privately minted coins and bars from the gold fields, potentially increasing
the value of the cargo. Odyssey has reached an agreement with research and
insurance interests that would give us 80% of any net revenue generated by the
project.
We conducted side scan operations on approximately 65% of the Republic
project initial search area during June 2000, and intend to return to the
search area in August or September if financing is available.
This year's Cambridge search operations began on July 5, 2000 and logged
over 30 dives to inspect anomalies. During ROV inspections, we located a
number of shipwrecks, which were located in depths between 400 and 1000
meters. These shipwrecks ranged from ancient amphorae wrecks to modern steel
vessels. Due to a failure of the ROV's scanning sonar, not all of the
promising side scan targets could be inspected. When operations resume, these
targets will be inspected and several shipwreck sites already located by
Odyssey will be examined in greater detail. We anticipate receiving
permission to recover some artifacts under the supervision of an archaeologist
from at least one of the sites in order to determine its identity.
Our corporate offices are located at 3507 Frontage Road, Suite 100,
Tampa, Florida 33607. Our telephone number is (813) 282-0855.
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RISK FACTORS
Investing in the shares is very risky. You should be able to bear a
complete loss of your investment. In deciding whether to purchase the shares,
you should carefully consider the following factors, among others, as well as
information contained in this prospectus, our most recent annual report on
Form 10-KSB, and the other documents incorporated by reference into this
prospectus:
OUR BUSINESS INVOLVES A HIGH LEVEL OF RISK.
An investment in Odyssey is extremely speculative and of exceptionally
high risk. Although we have access to a substantial amount of research and
data which has been compiled regarding various projects, the quality and
reliability of such research and data is unknown. Even if we are able to plan
and obtain permits for our various projects, there is a possibility that the
shipwrecks may have already been salvaged, or may not have had anything
valuable on board at the time of the sinking. Even if objects of value are
located and recovered, there is the possibility that our rights to the
recovered objects will be challenged by others, including both private parties
and governmental entities, asserting conflicting claims. Finally, even if we
are successful in locating and retrieving objects from a shipwreck and
establishing good title to them, there can be no assurance as to the value
that such objects will bring at their sale as the market for such objects is
very uncertain.
WE HAVE EXPERIENCED SUBSTANTIAL LOSSES AND HAVE A STOCKHOLDERS'
DEFICIENCY.
We have recorded substantial losses from our operations, and as of May
31, 2000, we had an accumulated deficit of approximately $5,000,000. In
addition, our liabilities exceeded our assets by approximately $1,350,000. In
order to continue in business, we will need to raise additional capital. We
may be unable to raise sufficient additional capital on acceptable terms.
WE NEED TO OBTAIN ADDITIONAL FINANCING TO CONDUCT ANY RECOVERY EFFORTS.
Until we are able to generate revenues, we will need to obtain additional
financing in order to continue the search, recovery and marketing phases of
our projects. There is no assurance that we will be able to raise sufficient
funds to continue our business.
THE RESEARCH AND DATA WE USE MAY NOT BE RELIABLE.
The success of a shipwreck project will be dependent to a substantial
degree upon the research and data we have obtained. By its very nature,
research and data regarding shipwrecks is imprecise, incomplete and
unreliable. It is often composed of or affected by numerous assumptions,
rumors, "legends," historical and scientific inaccuracies and inaccurate
interpretations which have become a part of such research and data over time.
WE WILL DEPEND ON OTHER COMPANIES TO LOCATE AND RECOVER SHIPWRECKS.
Although we plan to contract with other parties who will be responsible
for the location and recovery of shipwrecks, it is possible that we will have
the primary responsibility for such location and recovery. While John C.
Morris and Gregory P. Stemm, two of our officers, have experience in the
location and recovery of shipwrecks, we do not currently own the equipment or
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employ the personnel that may be necessary for this type of work. If we have
primary responsibility for search and recovery operations, we will be required
to contract with others to supply personnel and equipment to complete the
project. There can be no assurance that financing or third party contracts
will be available to us. The specialized recovery equipment needed may not be
available, and the cost of using such equipment is uncertain and will depend,
in part, on the location and condition of the wreckage to be recovered.
RECOVERY EFFORTS MAY BE AFFECTED BY NATURAL HAZARDS.
Underwater recovery operations are inherently difficult and dangerous and
may be delayed or suspended by weather, sea conditions or other natural
hazards. Further, such operations may be undertaken more safely during
certain months of the year than others. There can be no assurances that we or
the entities we are affiliated with will be able to conduct search and
recovery operations only during such favorable periods. In addition, even
though sea conditions in a particular search location may be somewhat
predictable, the possibility exits that unexpected conditions may occur and
adversely affect the Company's operations. It is also possible that natural
hazards may prevent or significantly delay search and recovery operations.
WE MAY BE UNABLE TO ESTABLISH OUR RIGHTS TO ANY OBJECTS WE RECOVER.
Persons and entities other than Odyssey and entities we are affiliated
with (both private and governmental) may claim title to the shipwrecks. Even
if we are successful in locating and recovering shipwrecks, there is no
assurance that we will be able to establish our right to property recovered
against governmental entities, prior owners, or other attempted salvors
claiming an interest therein. In such an event, we could spend a great deal
of money and receive no revenues for our work.
THE MARKET FOR ANY OBJECTS WE RECOVER IS UNCERTAIN.
Even if valuable items can be located and recovered, it is difficult to
predict the price that might be realized for such items. The value of
recovered items will fluctuate with the precious metals market, which has been
highly volatile in recent years. In addition, the entrance on the market of a
large supply of similar items from shipwrecks located and recovered by others
could depress the market for these items.
WE COULD EXPERIENCE DELAYS IN THE DISPOSITION OR SALE OF RECOVERED
OBJECTS.
The methods and channels which may be used in the disposition or sale of
recovered items are uncertain at present and may include several alternatives.
Ready access to buyers for any artifacts or other valuable items recovered
cannot be assured. Delays in the disposition of such items could adversely
affect our cash flow.
OBJECTS WE RECOVER COULD BE STOLEN FROM US.
If we locate a shipwreck and assert a valid claim to items of value,
there is a risk of theft of such items at sea, both before and after their
recovery, by "pirates" or poachers and while in transit to a safe destination.
Such thefts may not be adequately covered by insurance.
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WE FACE COMPETITION FROM OTHERS.
There are a number of competing entities engaged in various aspects of
the shipwreck business. One or more of these competing entities may locate
and recover a shipwreck that we intend to locate and recover. In addition,
these competing entities may be better capitalized and may have greater
resources to devote to their pursuit of the shipwreck.
WE MAY BE UNABLE TO GET PERMISSION TO CONDUCT SALVAGE OPERATIONS.
It is possible that we will not be successful in obtaining title to, or
permission to excavate certain wrecks. In addition, permits which are sought
for the projects may never be issued, and if issued, may not be legal or
honored by the entities which issued them.
OUR MANAGEMENT CONTROLS A MAJORITY OF OUR SHARES.
Our current executive officers and directors own beneficially
approximately 50% of our outstanding common stock. Accordingly, the current
executive officers and directors will continue to have the ability to
significantly influence the election of directors and other matters presented
to a vote of shareholders.
THERE IS ONLY A LIMITED PUBLIC MARKET FOR OUR SHARES.
Although there is a limited market for our common stock, there can be no
assurance that such a market can be sustained. The investment community could
show little or no interest in Odyssey in the future. As a result, purchasers
of the shares may have difficulty in selling such shares should they desire to
do so. Our common stock currently trades on the OTC Bulletin Board.
TRADING IN OUR SHARES MAY BE LIMITED BY THE "PENNY-STOCK" RULES.
Our shares may be subject to a rule that imposes additional sales
practice requirements on brokers who sell such shares to persons other than
established customers (as defined in the rule) and accredited investors
(generally, institutions and, for individuals, an investor with assets in
excess of $1,000,000 or annual income exceeding $200,000 or $300,000 together
with such investor's spouse). For transactions covered by this rule, the
broker must make a special suitability determination for the purchaser and
must have received the purchaser's written consent to the transaction prior to
the purchase. Consequently, many brokers may be unwilling to engage in
transactions in our shares because of the added disclosure requirements. This
would make it more difficult for shareholders to resell common stock in the
market.
OUR ARTICLES OF INCORPORATION AUTHORIZE GENERIC PREFERRED STOCK.
Our articles of incorporation authorize the issuance of up to 10,000,000
shares of preferred stock. The Board of Directors has the right to establish
the terms, preference, rights and restrictions of the preferred stock. Such
preferred stock could be issued with terms, rights, preferences and
restrictions that could discourage other persons from attempting to acquire
control and thereby insulate incumbent management. In certain circumstances,
the existence of corporate devices that would inhibit or discourage takeover
attempts could have a negative effect on the market value of our common stock.
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USE OF PROCEEDS
Odyssey will not receive any proceeds from the sale of the common stock
by the selling shareholders.
To the extent that any of the warrants held by the selling shareholders
are exercised, up to approximately $2,421,000 may be received by Odyssey. Any
net proceeds received from the exercise of the warrants will be used for
general corporate purposes.
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SELLING SHAREHOLDERS
The securities being offered hereby are 3,945,018 shares being offered
for resale by certain shareholders. Of those shares, 1,931,185 are currently
held by the selling shareholders. Up to 712,500 shares are issuable upon the
conversion of preferred stock held by the selling shareholders. Up to
1,301,333 shares are issuable upon exercise of warrants held by the selling
shareholders. The shares are being offered for the account of the
shareholders in the table below and their donees or pledgees.
The following table sets forth information concerning the selling
shareholders, including:
* the maximum number of shares issuable upon conversion of
preferred stock;
* the number of shares issuable upon exercise of warrants;
* the number of shares offered by each selling shareholder.
Odyssey has no knowledge of the intentions of any selling shareholder to
actually sell any of the securities listed under the columns "Shares Offered."
There are no material relationships between any of the selling shareholders
and Odyssey other than as disclosed below.
Beneficial Ownership Before Offering
----------------------------------------------
Shares
Number of Issuable Shares
Shares on Conver- Issuable
Currently sion of on Exer-
Held to be Preferred cise of Shares
Selling Shareholder Offered Stock Warrants Offered
------------------- ---------- --------- --------- ----------
deJong & Associates 25,000 -- 75,000 100,000
Bruce Gasarch 490,774 -- -- 490,774
Robert Stemm 151,548 -- 87,500 239,048
Ira Russack 233,863 -- 70,000 303,863
Donald H. Kagin 240,000 -- 240,000 480,000
Andrew Lustig 100,000 -- 100,000 200,000
Bleu Ridge Consultants, Inc.
Profit Sharing Plan 120,000 -- 120,000 240,000
Richard A. Pawliger 50,000 -- 50,000 100,000
Neal J. Fink, Co-Trustee of
Adele S. Fisk Revocable
Trust No. 2 30,000 37,500 45,000 112,500
John V. Whitman, Custodian
for Meaghan E. Butler 83,333 -- -- 83,333
John V. Whitman, Custodian
for Sarah E. Whitman 83,334 -- -- 83,334
Michael D. Butler 83,333 -- -- 83,333
Zenaide Moraes -- -- 8,333 8,333
Olive Morris -- -- 40,000 40,000
Charitable Remainder Trust
of Timothy J. Brasel -- 75,000 75,500 150,500
James E. Cooke -- -- 60,000 60,000
Community National Bank,
Custodian for Michael
Crisfasi -- 75,000 30,000 105,000
Richard M. Gawlik -- 37,500 15,000 52,500
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Thomas L. McCaffrey -- 75,000 30,000 105,000
Canyon Group, LLC 20,000 37,500 35,000 92,500
Commerce Bank, N.A., Trustee
for Leslie M. Davis Rollover
IRA -- 75,000 30,000 105,000
Jon D. Sawyer -- 37,500 15,000 52,500
Steve Simpson -- 37,500 15,000 52,500
Farrington LLP -- 37,500 15,000 52,500
Jeffrey Miller -- 75,000 30,000 105,000
Tom Boltres -- 30,000 12,000 42,000
Jan Boltres -- 45,000 18,000 63,000
Wally Copeland -- 37,500 15,000 52,500
J.J. Peirce 20,000 -- 20,000 40,000
Michael Crifasi 20,000 -- 20,000 40,000
Q & S Enterprises, Inc 150,000 -- -- 150,000
Thomas S. Soder 30,000 -- 30,000 60,000
--------- --------- --------- ---------
Total 1,931,185 712,500 1,301,333 3,945,018
The beneficial ownership of the selling shareholders after the offering
would be zero, except for the following persons:
<TABLE>
<CAPTION>
Beneficial Ownership After Offering
(As of July 31, 2000)
-------------------------------------------------------
Shares
Issuable
on Conver- Shares Shares
Number of sion of Issuable Benefic-
Shares Revenue Par- on Conver- ially Percent
Currently ticipation sion of Owned After of
Selling Shareholder Held Certificates Notes Offering Class
------------------- --------- ------------ --------- ----------- -------
<S> <C> <C> <C> <C> <C>
Bruce Gasarch -- 8,334 -- 8,334 0.1%
Robert Stemm 35,000 -- 93,518 128,518 0.1%
Ira Russack 20,835 -- 20,835 0.1%
Bleu Ridge Consultants, Inc.
Profit Sharing Plan 20,000 1,667 -- 21,667 0.2%
Zenaide Moraes -- 8,334 -- 8,334 0.1%
Charitable Remainder Trust
of Timothy J. Brasel 6,812 6,667 131,238 144,717 1.1%
James E. Cooke 31,885 4,167 -- 36,052 0.3%
Richard M. Gawlik -- 8,334 -- 8,334 0.1%
Canyon Group, LLC 307,050 -- -- 307,050 2.2%
J.J. Peirce 61,480 -- -- 61,480 0.5%
Jon D. Sawyer 38,627 -- -- 38,627 0.3%
</TABLE>
The information concerning the selling shareholders may change from time
to time and will be set forth in supplements to this prospectus.
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PLAN OF DISTRIBUTION
The purpose of this prospectus is to permit the selling shareholders to
offer and sell up to 3,945,018 shares at such times and at such places as they
choose. The decision to convert preferred stock into shares, to exercise
warrants, or to sell any shares, is within the sole discretion of the holders
thereof.
The distribution of the shares by selling shareholders may be effected
from time to time in one or more transactions. Any of the shares may be
offered for sale, from time to time, by the selling shareholders, or by
permitted transferees or successors of the selling shareholders, in the over-
the-counter market, or otherwise, at prices and on terms then obtainable, at
fixed prices, at prices then prevailing at the time of sale, at prices related
to such prevailing prices, or in negotiated transactions at negotiated prices
or otherwise. The securities may be sold by one or more of the following:
* Through underwriters, or through underwriting syndicates.
* Through one or more dealers or agents (which may include one or more
underwriters), including, but not limited to:
a. Block trades in which the broker or dealer act as principal
to facilitate the transactions.
b. Purchases by a broker or dealer as principal and resale by
such broker or dealer for its account pursuant to this
prospectus.
c. Ordinary brokerage transactions.
d. Transactions in which the broker solicits purchasers.
* Directly to one or more purchasers
* A combination of these methods.
The names of any underwriters or agents involved in the sale of the
securities will be set forth in a prospectus supplement.
In connection with the distribution of the shares or otherwise, the
selling shareholders may enter into hedging transactions with broker-dealers
or other financial institutions. In connection with such transactions,
broker-dealers or other financial institutions may engage in short sales of
shares in the course of hedging the positions they assume with the selling
shareholders. The selling shareholders may also sell shares short and
redeliver the shares to close out such short positions. The selling
shareholders may also enter into options or other transactions with
broker-dealers or other financial institutions which require the delivery to
such broker-dealers or other financial institutions of the securities, which
shares such broker-dealers or financial institutions may resell pursuant to
this prospectus, as supplemented or amended to reflect this transaction. The
selling shareholders may also pledge the securities registered hereunder to a
broker-dealer or other financial institution and, upon a default, such
broker-dealer or other financial institution may effect sales of the pledged
shares pursuant to this prospectus, as supplemented or amended to reflect such
transaction. In addition, any securities covered by this prospectus that
qualify for sale pursuant to Rule 144 under the Securities Act may be sold
under Rule 144 rather than pursuant to this prospectus.
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The selling shareholders or their underwriters, dealers or agents may
sell the securities to or through underwriters, dealers or agents, and such
underwriters, dealers or agents may receive compensation in the form of
discounts or concessions allowed or reallowed. Underwriters, dealers, brokers
or other agents engaged by the selling shareholders may arrange for other such
persons to participate. Any fixed public offering price and any discounts and
concessions may be changed from time to time. Underwriters, dealers and
agents who participate in the distribution of the securities may be deemed to
be underwriters within the meaning of the Securities Act, and any discounts or
commissions received by them or any profit on the resale of shares by them may
be deemed to be underwriting discounts and commissions thereunder. The
proposed amounts of securities, if any, to be purchased by underwriters and
the compensation, if any, of underwriters, dealers or agents will be set forth
in a prospectus supplement.
Unless granted an exemption by the Commission from Rule 10b-6 under the
Exchange Act, or unless otherwise permitted under Rule 10b-6A, the selling
shareholders will not engage in any stabilization activity in connection with
the Company's securities, will furnish each broker or dealer engaged by the
selling shareholders and each other participating broker or dealer the number
of copies of this prospectus required by such broker or dealer, and will not
bid for or purchase any securities of the Company or attempt to induce any
person to purchase any of the securities other than as permitted under the
Exchange Act.
Odyssey will not receive any proceeds from any sales of the securities,
but will receive the proceeds from any exercise of the warrants held by the
selling shareholders. Such proceeds, if any, will be used for general
corporate purposes.
Odyssey shall use its best efforts to prepare and file with the
Commission such amendments and supplements to the registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of the securities covered by
the registration statement for the period required to effect the distribution
of such securities.
Odyssey is paying certain expenses (other than commissions and discounts
of underwriters, dealers or agents) incident to the offering and sale of the
securities to the public, which are estimated to be approximately $5,000. If
Odyssey is required to update this prospectus during such period, it may incur
additional expenses in excess of the amount estimated above.
In order to comply with certain states' securities laws, if applicable,
the securities will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states the securities may not be sold
unless they have been registered or qualify for sale in such state or an
exemption from registration or qualification is available and is complied
with.
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DESCRIPTION OF SECURITIES
Odyssey has 110,000,000 authorized shares of stock, consisting of
100,000,000 shares of common stock, having a par value of $.0001 per share,
and 10,000,000 shares of preferred stock, having a par value of $.0001 per
share.
COMMON STOCK
As of July 31, 2000, there were 13,579,421 shares of common stock
outstanding. All such outstanding shares of common stock are fully paid and
nonassessable. Each share of common stock has an equal and ratable right to
receive dividends when declared by the Board of Directors of Odyssey out of
assets legally available for that purpose and subject to the dividend
obligations of Odyssey to holders of any preferred stock then outstanding.
In the event of a liquidation, dissolution or winding up of Odyssey, the
holders of common stock are entitled to share equally and ratably in the
assets available for distribution after payment of all liabilities, and
subject to any prior rights of any holders of preferred stock outstanding at
that time.
The holders of common stock have no preemptive, subscription, conversion
or redemption rights, and are not subject to further calls or assessments of
Odyssey. Each share of common stock is entitled to one vote in the election
of directors and on all other matters submitted to a vote of stockholders.
Cumulative voting in the election of directors is not permitted.
PREFERRED STOCK
Preferred stock may be issued from time to time in one or more series,
and the board of directors, without further approval of the stockholders, is
authorized to fix the dividend rates and terms, conversion rights, voting
rights, redemption rights and terms, liquidation preferences and any other
rights, preferences, privileges and restrictions applicable to each series of
preferred stock. The purpose of authorizing the board of directors to
determine such rights, preferences, privileges and restrictions is to
eliminate delays associated with a stockholder vote on specific issuances.
The issuance of preferred stock, while providing flexibility in connection
with possible acquisitions and other corporate purposes, could, among other
things, adversely affect the voting power of the holders of common stock and,
under some circumstances, make it more difficult for a third party to gain
control of Odyssey.
As of July 26, 2000 Odyssey had 190,000 shares of preferred stock
outstanding, which shares have been designated series A convertible preferred
stock. Each share of preferred stock is convertible into the number of shares
of common stock determined by dividing $1.50 by the conversion price. The
conversion price is the lesser of $1.50 or 85% of the average closing bid
price for the ten (10) consecutive trading days immediately prior to the date
of conversion. However, the maximum number of shares of common stock to be
issued on conversion of the series A preferred stock shall not exceed 3.75
shares of common stock per share of series A preferred stock. In the event of
a liquidation of Odyssey, holders of preferred stock are entitled to receive
$1.50 per share prior to any distributions to be made to holders of common
stock. The preferred stock is redeemable on at least 45 days' notice at $2.00
per share in the event that the closing bid price of the common stock exceeds
$5.00 per share for 20 of 30 consecutive trading days ending not more than
five days prior to the mailing of the notice. Holders of preferred stock are
entitled to vote together with the holders of common stock.
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No other series of preferred stock has been designated by Odyssey.
WARRANTS
Odyssey is registering the common stock issuable upon the exercise of
certain warrants pursuant to the registration statement of which this
prospectus is a part.
PRIVATE PLACEMENT WARRANTS
As part of a private placement that was completed in July 2000, Odyssey
issued warrants to purchase 285,000 shares of common stock. The warrants give
the holders the right to purchase shares of common stock at $1.25 per share
until December 1, 2000, and at $2.50 per share thereafter. These warrants are
exercisable until March 31, 2002.
SERIES A AND SERIES B WARRANTS
In connection with the sale of the series A preferred stock in 1999,
Odyssey issued class A warrants to purchase 190,000 shares of common stock at
$3.50 per share and class B warrants to purchase 95,000 shares at $2.00 per
share. These warrants expire on July 31, 2002. The class A and class B
warrants are redeemable under certain circumstances.
LOAN AND LOAN EXTENSION WARRANTS
In connection with various loans and loan extensions Odyssey has
obtained, Odyssey has issued warrants to purchase an aggregate of 181,333
shares of common stock at prices of $0.30 to $3.00 per share. These warrants
have various expiration dates and are not redeemable.
CONSULTANT'S WARRANTS
In connection with a consulting agreement, Odyssey has issued de Jong &
Associates warrants to purchase 75,000 shares of common stock at $.68 per
share. These warrants are subject to a vesting schedule and expire on May 1,
2003.
OTHER CONVERTIBLE SECURITIES OUTSTANDING
In addition to the preferred stock and warrants described above, Odyssey
has outstanding securities which are convertible into shares of common stock
as described below. The shares issuable on the conversion of these securities
are not being registered for resale.
CAMBRIDGE REVENUE PARTICIPATION CERTIFICATES
In June 1998, Odyssey sold $825,000 in revenue participation certificates
for its Cambridge project, which are convertible into a total of 275,000
shares of common stock on the basis of one share for each $3.00 so converted.
The option to convert expires on December 31, 2001.
CONVERTIBLE NOTES
Odyssey currently has outstanding promissory notes which are convertible
into shares of common stock. As of July 31, 2000, a total of $184,769 in
principal and interest under such notes is convertible into common stock at
conversion prices ranging from $.24 to $.50 per share. As of July 31, 2000,
these notes are convertible into a total of 516,613 shares of common stock.
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LEGAL MATTERS
The legality of the shares offered hereby are being passed upon for
Odyssey by Krys Boyle Freedman & Sawyer, P.C., 600 17th Street, Suite 2700
South, Denver, Colorado 80202. Jon D. Sawyer, a shareholder in Krys Boyle
Freedman & Sawyer, P.C., beneficially owns 100,784 shares of Odyssey's common
stock, which shares are being offered for resale by this prospectus.
EXPERTS
The financial statements incorporated by reference in this prospectus
have been audited by Giunta, Ferlita & Walsh, P.A., independent certified
public accountants, to the extent and for the periods set forth in their
report, incorporated by reference herein, and are incorporated herein in
reliance upon such report given upon the authority of that firm as experts in
accounting and auditing.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by Odyssey with the Commission are
incorporated herein by reference:
(a) Odyssey's annual report on Form 10-KSB for the fiscal year ended
February 29, 2000 (SEC File No. 0-26136.)
(b) Odyssey's quarterly report on Form 10-QSB for the quarter ended May
31, 2000 (SEC File No. 0-26136).
(c) The description of Odyssey's shares contained in the registration
statement on Form 8-A (SEC File No. 0-26136) filed on May 24, 1995.
All reports and other documents subsequently filed by Odyssey with the
SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities covered by this prospectus have been sold or which deregisters all
such securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents.
AVAILABLE INFORMATION
Odyssey is subject to certain informational reporting requirements of the
Exchange Act and in accordance therewith files reports and other information
with the Securities and Exchange Commission. These reports, proxy statements
and other information can be inspected and copied at the public reference
facilities maintained by the SEC at Room 1024 of the SEC's office at 450 Fifth
Street, N.W., Judiciary Plaza, Washington, DC 20549, and at its regional
offices located at 7 World Trade Center, Suite 1300, New York, NY 10048 and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, IL 60661.
Copies of such reports, proxy statements and other information can be obtained
from the Public Reference Section of the SEC at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, DC 20549 at prescribed rates. The SEC maintains
a Web site (http://www.sec.gov) that contains reports, proxy and information
statements and other information regarding registrants that file
electronically. Additional updating information with respect to the
securities covered herein may be provided in the future to purchasers by means
of appendices to this prospectus.
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Odyssey has filed with the SEC in Washington, DC a registration statement
under the 1933 Act with respect to the securities offered or to be offered
hereby. This prospectus does not contain all of the information included in
the registration statement, certain items of which are omitted in accordance
with the rules and regulations of the SEC. For further information about
Odyssey and the securities offered hereby, reference is made to the
registration statement and the exhibits thereto. The registration statement
has been filed electronically through the SEC's Electronic Data Gathering,
Analysis and Retrieval System and may be obtained through the SEC's Web site
(http://www.sec.gov.).
Odyssey will provide without charge to each person to whom this
prospectus is delivered, on the written or oral request of such person, a copy
of any document incorporated herein by reference, excluding exhibits.
Requests should be made to Odyssey, 3507 Frontage Road, Suite 100, Tampa,
Florida 33607, telephone (813) 282-0855, and directed to the attention of
John C. Morris, President.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following expenses incurred in connection with the sale of the
securities being registered will be borne by the Registrant. Other than the
registration fee, the amounts stated are estimates.
Registration Fees . . . . . . . . . . . . . . $ 358
Legal Fees and Expenses . . . . . . . . . . . 3,000
Accounting Fees and Expenses. . . . . . . . . 1,000
Miscellaneous . . . . . . . . . . . . . . . . 642
------
TOTAL . . . . . . . . . . . . . . . . . . $5,000
======
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The only statute, charter provision, bylaw, contract, or other arrange-
ment under which any controlling person, director or officer of Odyssey 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 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
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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 Odyssey's Articles of Incorporation provides that
Odyssey is authorized to indemnify directors, officers, employees and agents
to the full extent allowed for under the Nevada Business Corporation Act.
(c) Article XI of the Articles of Incorporation of Odyssey provides that
no director, officer or stockholder of Odyssey shall be personally liable for
damages for breach of fiduciary duty as a director or officer; provided, that
this provision shall not eliminate liability of a director or officer for acts
or omissions involving intentional misconduct, fraud or a knowing violation of
law or payments or distributions in violation of Nevada law.
ITEM 16. EXHIBITS.
Exhibit
Number Description Location
------- ----------- ---------
3.1 Articles of Incorporation Incorporated by reference to
Exhibit 4.1 to the Company's
Form S-8 Registration Statement
(File No. 333-50325)
3.2 Bylaws Incorporated by reference to
Exhibit 4.2 to the Company's
Form S-8 Registration Statement
(File No. 333-50325)
3.3 Certificate of Designation Filed herewith electronically
for Series A Convertible
Preferred Stock
5 Opinion of Krys Boyle Freedman & Filed herewith electronically
Sawyer, P.C., with respect to
the legality of the securities
being registered
23.1 Consent of Giunta, Ferlita & Filed herewith electronically
Walsh, P.A., Independent
Certified Public Accountants
23.2 Consent of Krys Boyle Freedman & Included in Exhibit No. 5
Sawyer, P.C.
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ITEM 17. UNDERTAKINGS.
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:
(a) To include any prospectus required by Section 10(a)(3) of the
1933 Act;
(b) 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) ([Section] 230.424(b) of this chapter) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(c) 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 paragraphs (l)(i) and (l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by Odyssey pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the 1933
Act, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of Odyssey's annual
report pursuant to section 13(a) or section 15(d) of the 1934 Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant
to section 15(d) of the 1934 Act) that is incorporated by reference in the
registration 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.
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Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of Odyssey
pursuant to the foregoing provisions, or otherwise, Odyssey has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the 1933 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by Odyssey of expenses incurred or paid by a director, officer or
controlling person of Odyssey 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, Odyssey 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 1933 Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, hereunto duly authorized, in Tampa, Florida, on August 1, 2000.
ODYSSEY MARINE EXPLORATION, INC.
By:/s/ John C. Morris
John C. Morris, President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURES TITLE DATE
/s/ John C. Morris President and Chairman August 1, 2000
John C. Morris of the Board of Directors
/s/ Gregory P. Stemm Vice President and August 1, 2000
Gregory P. Stemm Director
/s/ David A. Morris Secretary and Treasurer August 1, 2000
David A. Morris (Principal Accounting Officer)
/s/ William C. Callari Director August 1, 2000
William C. Callari
/s/ Gerald Goodman Director August 1, 2000
Gerald Goodman
/s/ E. Eugene Cooke Director August 1, 2000
E. Eugene Cooke
/s/ Brad Baker Director August 1, 2000
Brad Baker
