As filed with the Securities and Exchange Commission on November 8, 2002
SEC Registration No. 333-99953
===========================================================================
U.S. SECURITIES AND EXCHANGE COMMISSION
AMENDMENT NO. 1 TO
FORM S-2 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 (IRS Employer Identification Number)
of Incorporation)
3604 Swann Avenue, Tampa, Florida 33609
(813) 876-1776
--------------------------------------------------------------
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
John C. Morris, President
3604 Swann Avenue, Tampa, Florida 33609
(813) 876-1776
---------------------------------------------------------
(Name, Address and Telephone Number of Agent for Service)
Copy to:
Jon D. Sawyer, Esq.
Krys Boyle, 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 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,
check the following box: [X]
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item
11(a)(1) of this form, check the following box: [ ].
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 effective registration statement
for the same offering: [ ]
If this form is a post-effective amendment and filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Section Act
registration statement number of the earlier effective 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: [ ]
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 3,650,000 (1) $1.18 (2) $4,307,000 (2) $396.24
Par Value
Common Stock, $.0001 2,241,600 (3) $1.26 (4) $2,824,416 (4) $259.85
Par Value
Total $656.09 (5)
_____________________________________________________________________________
(1) To be offered by selling shareholders. Includes 2,050,000 shares
currently held by selling shareholders; 800,000 shares issuable on the
exercise of common stock purchase warrants held by selling shareholders;
400,000 shares issuable on the conversion of shares of Series C Preferred
Stock held by a selling shareholder; and 400,000 shares issuable on the
exercise of common stock purchase warrants issuable on the conversion of
Series C Preferred Stock held by a selling shareholder. 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 the exercise of the common stock purchase warrants
and Series C Preferred Stock to prevent dilution resulting from stock splits,
stock dividends, and similar transactions in accordance with the terms of the
common stock purchase warrants and Series C Preferred Stock.
(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 September 20,
2002.
(3) To be offered by selling shareholders. Includes 1,120,800 shares
currently held by selling shareholders and 1,120,800 shares issuable on an
exercise of common stock purchase warrants held by selling shareholders. In
accordance with Rule 416 under the Securities Act of l933, this registration
statement also covers an indeterminable number of shares of common stock,
$.0001 par value, as may become issuable upon 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 common
stock purchase warrants.
(4) 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 by the OTC Bulletin Board in November 7, 2002.
(5) Of this amount, $396.24 was paid with the initial filing, and $259.85 is
being paid with this amendment.
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.
PROSPECTUS SUBJECT TO COMPLETION DATED NOVEMBER 8, 2002
------------------------------------------------------------------------------
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.
5,891,600 Shares of Common Stock
Certain selling shareholders are offering the shares of common stock.
The common stock is traded in the over-the-counter market and is quoted
on the OTC Bulletin Board (Symbol: OMEX). On November 7, 2002 the closing
price of the common stock was $1.25.
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.
_______, 2002
TABLE OF CONTENTS
PAGE
COMPANY SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . 3
RISK FACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
COMPANY INFORMATION . . . . . . . . . . . . . . . . . . . . . . . 7
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . 7
RECENT MATERIAL CHANGES IN OUR BUSINESS . . . . . . . . . . . . . 7
SELLING SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . . . 7
PLAN OF DISTRIBUTION. . . . . . . . . . . . . . . . . . . . . . . 12
DESCRIPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . 13
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . 15
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
WHERE YOU CAN FIND MORE INFORMATION . . . . . . . . . . . . . . . 15
2
COMPANY SUMMARY
Odyssey is engaged in the business of conducting archaeologically
sensitive recoveries of cargoes 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, the sale of intellectual property rights, and the operation of
one or more themed attractions and traveling exhibits and through the leasing
of marine equipment.
Odyssey currently has three active projects; the recovery of a vessel
believed to be HMS Sussex and the continued search for two shipwrecks code
named "Republic" and "Bavaria."
The Sussex Project is an expedition to locate, recover and market the
artifacts and cargo of a large colonial-period warship, HMS Sussex, lost in a
severe storm in 1694. Based on research conducted by the Company and its
researchers, management believes 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 numismatic value. Odyssey conducted offshore search
operations on this project in 1998, 1999, 2000 and 2001. Based on the results
of these search operations, the Company believes that there is a high
probability it has located the remains of HMS Sussex. In September 2002, we
entered into an agreement with the British Government to conduct an
archaeologically sensitive exploration of the shipwreck to recover artifacts
and cargos from the wrecksite. We have delivered a project plan to the
British Government and expect approval in December 2002 or early January 2003.
Following approval, we plan to begin exploration and recovery operations
during the Spring of 2003.
The Republic project is an attempt to locate, identify, recover, conserve
and market the cargo of the Republic, the code name for a steam ship that sank
off the west coast of the United States in the late 1800's. 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 approximately 75% of any net revenue generated by the project.
During June 2000, we conducted side scan operations over an area of
approximately 65 square miles and during September 2000, we side scanned an
additional 80 square miles. Odyssey has reviewed the data and does not believe
the Republic is within the areas searched. During 2001, Mr. Jeff Hummel, a
researcher for the project, conducted search operations in an area in which he
believed the shipwreck might have sunk. To date it appears that he was
unsuccessful in locating the wreckage. The Company plans to conduct further
search operations during 2003.
The Bavaria Project is an attempt to locate, identify, recover, conserve
and market the cargo of the Bavaria, the code name for a steam ship that sank
off the east coast of the United States. Our research indicates that the
steamer was carrying a large shipment of gold coins at the time of her loss.
Odyssey conducted search operations during the period May August 2002 and
3
located numerous anomalies within the search area. We have started to inspect
these anomalies and plan to continue to do so through December 2002. Assuming
the shipwreck is located, we anticipate that recovery operations will begin as
soon as the archaeological excavation plan is complete, the necessary recovery
funds have been secured and the required vessel and equipment can be
mobilized. Based on the projected location of the shipwreck, and the
circumstances relating to its ownership at the time of its loss, no permits
will be necessary to begin recovery operations.
Our corporate offices are located at 3604 West Swann Avenue, Tampa,
Florida 33609. Our telephone number is (813) 876-1776.
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, which is attached to this Prospectus, 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 others, including both
private parties and governmental entities, asserting conflicting claims, will
challenge our rights to the recovered objects. 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.
We have recorded substantial losses from our operations, and as of
February 28, 2002, we had an accumulated deficit of approximately $7.3
million. We may not be able to become profitable in the future.
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.
4
WE WILL DEPEND ON OTHER COMPANIES TO LOCATE AND RECOVER SHIPWRECKS.
Odyssey currently owns the vessel R/V Odyssey as well as certain search
equipment, including side scan sonar, navigation equipment and an ROV capable
of operations to approximately 1,000 feet. It may be necessary to contract
with third parties for any additional equipment and/or labor necessary for the
location and recovery of wrecksites. There can be no assurance that financing
or third party contracts will be available to us. The availability of
specialized recovery equipment may present a problem, and the cost of
obtaining the use of such equipment to conduct recovery operations is
uncertain and will depend on, in part, 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 favorable periods. In addition, even though
sea conditions in a particular search location may be somewhat predictable,
the possibility exists 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.
5
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.
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 that are sought
for the projects may never be issued, and if issued, may not be legal or
honored by the entities that issued them.
WE NEED ADDITIONAL CAPITAL FOR OUR OPERATIONS.
Until Odyssey begins to generate revenue from the sale of recovered
items, we will need additional capital in order to continue the search,
recovery and marketing phases of our projects. We may not be able to raise
additional capital on acceptable terms.
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.
6
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.
COMPANY INFORMATION
This Prospectus is accompanied by a copy of our Annual Report on Form 10-
KSB for our fiscal year ended February 28, 2002, and our Quarterly Report on
Form 10-QSB for the quarter ended August 31, 2002, which reports are
incorporated by reference into this Prospectus in their entirety.
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 $5,802,000 may be received by Odyssey. Any
net proceeds received from the exercise of the warrants will be used for
general corporate purposes.
RECENT MATERIAL CHANGES IN OUR BUSINESS
There have been no material changes in our business since February 28,
2002, that have not been reported in our Reports on Form 10-QSB, except as
follows:
In October 2002, we announced that we had completed a private placement
of equity in the amount of $1,401,000 with warrants that would bring an
additional $2,802,000, if exercised. The placement was conducted as a "Unit
Offering" with each $50,000 Unit consisting of 40,000 shares of restricted
common stock and a warrant to purchase an additional 40,000 shares of
restricted common stock at $2.50 per share. We intend to use the funds
obtained through this private placement for offshore operations, the
development of a themed attraction concept and for general overhead expenses.
In October 2002, we also announced that we had completed the re-fit of
the Research Vessel Odyssey and that it was now ready for sea. Two remotely
operated vehicles (ROV) systems have been installed and are operational. The
RV Odyssey's equipment also includes two side scan sonar systems and a
magnetometer. The ship is 113 feet long with a 23 foot beam and can
accommodate 19 crew and technicians. The first deployment of the RV Odyssey
will be the inspection of sites on our "Bavaria" project.
SELLING SHAREHOLDERS
The securities being offered hereby are 5,891,600 shares being offered
for resale by certain shareholders. Of those shares, the selling shareholders
currently hold 3,170,800. Up to 1,920,800 shares are issuable upon exercise
of warrants held by the selling shareholders. Up to 400,000 shares and
400,000 shares underlying warrants may be issued upon the conversion of
Preferred stock and exercise of the warrants issuable on the conversion of
Preferred Stock. The shares are being offered for the account of shareholders
in the table below and their donees or pledgees.
7
The following table sets forth information concerning the selling
shareholders, including:
* the maximum number of shares currently held to be offered;
* the number of shares issuable upon exercise of warrants;
* the number of shares offered by each selling shareholder.
* the number of shares issuable upon the conversion of preferred stock
* the number of shares issuable upon exercise of warrants issuable upon
conversion of preferred stock
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.
Ownership Before Offering
----------------------------------------
Number of Shares
Shares Issuable
Currently on Exer-
Held to be cise of Shares
Selling Shareholder Offered Warrants Offered
------------------- ---------- --------- --------
Michael V. Barton (1) 10,000 10,000 20,000
BBACA, Ltd. 10,000 10,000 20,000
Robert R. Bears, Jr. 80,000 80,000 160,000
Robert R. Bears, Sr. 80,000 80,000 160,000
George J. Becker, Jr. (2) 10,000 10,000 20,000
Lyle C. Blanden 40,000 40,000 80,000
Jan Boltres 20,000 20,000 40,000
Thomas Boltres and Arnoldine R.
Boltres 20,000 20,000 40,000
Bleu Ridge Consultants 10,000 10,000 20,000
Charitable Remainder Trust of
Susan Anne Brasel 35,000 35,000 70,000
Charitable Remainder Trust of
Mary Jane Brasel 35,000 35,000 70,000
Canyon Group LLC 10,000 10,000 20,000
Charles W. Ciolino, Jr. 20,000 20,000 40,000
COMEX, SA (3) 40,000 40,000 80,000
E. Eugene Cooke 20,000 20,000 40,000
Mid-Ohio Securities Corp., 20,000 20,000 40,000
Custodian FBO Walter C. Copeland
IRA 002075
Community National Bank, Cust FBO 20,000 20,000 40,000
Michael L. Crifasi, IRA #332593
8
Ownership Before Offering - continued
------------------------------------------------
Number of Shares
Shares Issuable
Currently on Exer-
Held to be cise of Shares
Selling Shareholder Offered Warrants Offered
------------------- ---------- --------- --------
Eckerd College 250,000 - 250,000
Hugh N. Farrior 80,000 80,000 160,000
James L. Ferman, Jr. 120,000 120,000 240,000
Neal J. Fink IRA 40,000 40,000 80,000
Neal J. Fink, Co-Trustee
of Adele S. Fink Trust No. 2 20,000 20,000 40,000
Delaware Charter FBO
Joseph D. Freedman IRA 40,000 40,000 80,000
Jay M. Garner 20,000 20,000 40,000
Christopher Hall 20,000 20,000 40,000
Leonard H. Johnson 8,000 8,000 16,000
Eric J. Jolly 20,000 20,000 40,000
Kagin's Inc. 20,000 20,000 40,000
WIT Ventures, Ltd. 10,000 10,000 20,000
Donald M. Lionetti 10,000 10,000 20,000
Lowe Family Limited Partnership 200,000 200,000 400,000
Eugen Lundgren 20,000 20,000 40,000
MacDougald Family Limited
Partnership 1,000,000 - 1,000,000
Mackerel Capital Ltd. 200,000 200,000 400,000
Nelda D. Norbom 10,000 10,000 20,000
Robert E. Nussear 40,000 40,000 80,000
Jack S. Painter 10,000 10,000 20,000
Richard A. Pawliger 30,000 30,000 60,000
Ken S. Protas 50,000 50,000 100,000
P.N. Risser III 40,000 40,000 80,000
David and Christine Saul (4) 40,000 40,000 80,000
Sawyer Family Partners Ltd. 60,000 60,000 120,000
Steven R. Simpson 80,000 80,000 160,000
Neal A. Stubbs 40,000 40,000 80,000
David J. Wendt 12,800 12,800 25,600
Preston A. Whaley 160,000 160,000 320,000
James K. Wiley 20,000 20,000 40,000
Carolyn A. Yokley &
John H. Yokley, Jr. 20,000 20,000 40,000
--------- --------- ---------
Subtotal 3,170,800 1,920,800 5,091,600
9
Number of
Shares Shares
Issuable on Issuable
Conversion on Exer-
of Preferred cise of Shares
Selling Shareholder Stock Warrants(5) Offered
------------------- ------------- ----------- ---------
J.L. Holding International, Inc. 400,000 400,000 800,000
============= ========= =========
Total 3,570,800 2,320,800 5,891,600
___________
(1) Michael V. Barton is Chief Financial Officer of Odyssey.
(2) George J. Becker, Jr. is Chief Operating Officer of Odyssey.
(3) COMEX, SA is owned by Henri Delauze, a Director of Odyssey.
(4) David Saul is a Director of Odyssey.
(5) These warrants are issuable to the Selling Shareholder on conversion of
Series C Convertible Preferred Stock.
The beneficial ownership of the selling shareholders after the offering
would be zero, except for the following persons:
Beneficial Ownership
After Offering
----------------------------
Number of Percent
Shares Held of Class
----------------- --------
George J. Becker, Jr. 35,000 (1) 0.12%
Michael V. Barton 248,115 (2) 0.86%
Robert R. Bears, Jr. 10,600 0.04%
Lyle C. Blanden 53,112 0.19%
Jan Boltres 65,000 0.23%
Thomas Boltres and Arnoldine R.
Boltres 60,305 0.21%
Canyon Group LLC 377,007 1.32%
Charitable Remainder Trust of
Susan Anne Brasel 61,080 0.21%
Charitable Remainder Trust of
Mary Jane Brasel 34,080 0.12%
Charles W. Ciolino, Jr. 31,000 0.11%
E. Eugene Cooke 1,291,387 (3) 4.51%
Mid-Ohio Securities Corp.
Custodian FBO Walter C. Copeland 287,500 1.01%
IRA 002075
Community National Bank, Cust FBO 102,782 (4) 0.36%
Michael L. Crifasi, IRA #332593
10
Beneficial Ownership
After Offering
(Continued)
----------------------------
Number of Percent
Shares Held of Class
----------------- --------
Neal J. Fink, Co-Trustee
of Adele S. Fink Trust No. 2 203,226 0.71%
Joseph D. Freedman IRA 70,000 0.25%
Christopher Hall 10,000 0.04%
Kagins, Inc. 400,000 1.40%
Donald M. Lionetti 13,000 0.05%
Eugene Lundgren 16,000 0.06%
MacDougald Family Limited
Partnership 9,883,008 (5) 32.60%
Nelda D. Norboom 17,127 0.06%
Robert Nussear, Sr. 5,000 0.02%
Jack Painter 9,550 0.03%
Richard A. Pawliger 148,998 0.52%
Ken S. Protas 5,000 0.02%
Davide & Christine Saul 212,500 (6) 0.74%
Sawyer Family Partners, Ltd. 85,784 (7) 0.30%
Steven R. Simpson 18,750 0.07%
David J. Wendt 23,717 0.08%
Preston A. Whaley 3,000 0.01%
James K. Wiley 7,000 0.02%
______________
(1) Includes 35,000 share underlying currently exercisable options.
(2) Includes 64,115 shares held by Mr. Barton and his wife; 49,000
shares held by Mr. Barton's wife; and 135,000 shares underlying
currently exercisable stock options held by his wife.
(3) Includes 1,193,887 shares and 97,500 shares underlying currently
exercisable stock options held by Mr. Cooke.
(4) Includes 75,000 shares held by Community National Bank, Cust FBO
Michael L. Crifasi, IRA #332593 and 27,782 shares held by Michael
Crifasi.
(5) Includes 8,114,008 shares held directly and 1,769,000 shares
underlying currently exercisable stock options, beneficially held
by MacDougald Family Limited Partnership (MFLP), MacDougald
Management, Inc. (MMI), and James E. MacDougald. The limited
partners of MFLP are James E. MacDougald, his wife Suzanne M.
MacDougald, and two trusts created for the children and grand-
children of Mr. and Mrs. MacDougald. MMI is the general partner
of MFLP.
(6) Includes 100,000 shares held by Mr. Saul and 112,500 shares underlying
currently exercisable options.
11
(7) Includes 47,157 shares held by Sawyer Family Partnership, Ltd. and
38,627 shares held by Jon Sawyer.
The information concerning the selling shareholders may change from time
to time and will be set forth in supplements to this prospectus.
PLAN OF DISTRIBUTION
The selling shareholders and their successors, including their
transferees, pledgees or donees of their successors, may sell the common stock
directly to purchasers or through underwriters, broker-dealers or agents, who
may receive compensation in the form of discounts, concessions or commissions
from the selling holders or the purchasers. These discounts, concessions or
commissions as to any particular underwriter, broker-dealer or agent may be in
excess of those customary in the types of transactions involved.
The common stock may be sold in one or more transactions at fixed prices,
at prevailing market prices at the time of sale, at prices related to the
prevailing market prices, at varying prices determined at the time of sale, or
at negotiated prices. These sales may be effected in transactions, which may
involve crosses or block transactions:
- on any national securities exchange on which the common stock
may be listed, or U.S. inter-dealer system of a registered national
securities association on which the common stock may be listed or
quoted at the time of sale;
- in the over-the-counter market;
- in transactions otherwise than on these exchanges or systems or
in the over-the-counter market; or
- through the writing of options, whether the options are listed on
an options exchange or otherwise.
In connection with the sale of the common stock or otherwise, the selling
shareholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume.
The aggregate proceeds to the selling shareholders from the sale of the
common stock offered by them will be the purchase price of the common stock
less discounts and commissions, if any. Each of the selling shareholders
reserves the right to accept and, together with their agents from time to
time, to reject, in whole or in part, any proposed purchase of common stock to
be made directly or through agents. We will not receive any of the proceeds
from this offering.
In order to comply with the securities laws of some states, if
applicable, the common stock may be sold in these jurisdictions only through
registered or licensed brokers or dealers. In addition, in some states the
common stock may not be sold unless they have been registered or qualified for
sale or an exemption from registration or qualification requirements is
available and is complied with.
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The selling shareholders and any underwriters, broker-dealers or agents
that participate in the sale of the common stock may be "underwriters" within
the meaning of Section 2(11) of the Securities Act. Any discounts,
commissions, concessions or profit they earn on any resale of the shares may
be underwriting discounts and commissions under the Securities Act. Selling
shareholders who are "underwriters" within the meaning of Section 2(11) of the
Securities Act will be subject to the prospectus delivery requirements of the
Securities Act. The selling shareholders have acknowledged that they
understand their obligations to comply with the provisions of the Exchange Act
and the rules thereunder relating to stock manipulation, particularly
Regulation M.
In addition, any securities covered by this prospectus that qualify for
sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144
rather than pursuant to this prospectus. A selling shareholder may not sell
any common stock described in this prospectus and may not transfer, devise or
gift these securities by other means not described in this prospectus.
To the extent required, the specific common stock to be sold, the names
of the selling shareholders, the respective purchase prices and public
offering prices, the names of any agent, dealer or underwriter, and any
applicable commissions or discounts with respect to a particular offer will be
set forth in an accompanying prospectus supplement to, if appropriate, a post-
effective amendment to the registration statement of which this prospectus is
a part.
The registration statement of which this prospectus is a part is being
filed pursuant to registration rights that we have provided to the selling
shareholders under applicable federal and state securities laws under specific
circumstances and at specific times. We will pay all of the expenses incurred
in connection with the registration of the common stock.
DESCRIPTION OF SECURITIES
Odyssey has 109,810,000 authorized shares of stock, consisting of
100,000,000 shares of common stock, having a par value of $.0001 per share,
and 9,810,000 shares of preferred stock, having a par value of $.0001 per
share.
COMMON STOCK
As of October 31, 2002, there were 28,550,887 shares of common stock
outstanding. All such outstanding shares of common stock are fully paid and
non-assessable. 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.
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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.
Series C Convertible Preferred Stock
We have issued and outstanding one share of Series C Convertible Preferred
Stock par value $.0001 per share which carries the powers, designations,
preferences and relative participating options or other rights as specified in
the Certificate of Designation for Series C Convertible Preferred Stock. This
share may be converted at any time during the period September 6, 2002 through
September 6, 2004 into either(i) 400,000 shares of Odyssey Marine Exploration
common stock and warrants for the purchase of 400,000 shares of Odyssey Marine
Exploration common stock at an exercise price of $2.50 per share, or(ii) for
the outstanding common stock of OVH, Inc., a Nevada corporation and wholly
owned subsidiary of Odyssey Marine Exploration. OVH, Inc. is the owner of the
vessel R/V Odyssey which was purchased for $465,000 using the proceeds of the
sale of the Series C Convertible Preferred Stock.
WARRANTS
Odyssey is registering the resale of the common stock issuable upon the
exercise of certain warrants pursuant to the registration statement of which
this prospectus is a part. As part of a private placement that was completed
in May 2002, Odyssey issued warrants to purchase 800,000 shares of common
stock. The warrants give the holders the right to purchase shares of common
stock at $2.50 per share. These warrants are exercisable until one year after
the registration statement of which this prospectus is a part becomes
effective or May 15, 2005, whichever is earlier.
As part of a private placement that was completed in October 2002,
Odyssey issued warrants to purchase 1,120,800 shares of common stock. The
warrants give the holders the right to purchase shares of common stock at
$2.50 per share. These warrants expire one year after the registration
statement of which this prospectus is a part becomes effective or October 11,
2005, whichever is earlier.
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If the holder of the Series C Convertible Preferred Stock converts such
stock into shares of Odyssey Marine Exploration common stock, warrants will be
issued to the holder to purchase 400,000 shares of common stock at $2.50 per
share. These warrants will expire one year from the date a registration
statement registering the resale of the shares of common stock issuable upon
exercise of the warrant is declared effective by the Securities and Exchange
Commission or three years from the date of issuance if no such registration is
declared effective.
LEGAL MATTERS
The legality of the shares offered hereby are being passed upon for
Odyssey by Krys Boyle, P.C., 600 17th Street, Suite 2700 South, Denver,
Colorado 80202. Jon D. Sawyer, a shareholder in Krys Boyle, P.C.,
beneficially owns 165,784 shares of Odyssey's common stock, a portion of which
are being offered for resale by this prospectus.
EXPERTS
The financial statements appearing in our Annual Report on Form 10-KSB
for the fiscal year ended February 28, 2002, incorporated by reference in this
prospectus have been audited by Ferlita, Walsh & Gonzalez, 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.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement on Form S-2 filed by
Odyssey with the Securities and Exchange Commission under the Securities Act
of 1933 (Registration No. 333-99953). We refer you to that registration
statement and the exhibits thereto for further information with respect to
Odyssey and the shares offered hereby.
Odyssey files annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission (Commission File
No. 0-26136). These filings contain important information which does not
appear in this prospectus. For further information about Odyssey, you may
obtain these filings over the internet at the SEC's web site at
http://www.sec.gov. You may also read and copy these filings at the SEC's
public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. You
may obtain information on the operation of the public reference room by
calling the SEC at 1-800-SEC-0330, and may obtain copies of Odyssey's filings
from the public reference room by calling (202) 942-8090.
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 28, 2002 (SEC File No. 0-26136).
(b) Odyssey's quarterly report on Form 10-QSB for the fiscal quarter
ended May 31, 2002 (SEC File No. 0-26136).
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(c) Odyssey's quarterly report on Form 10-QSB for the fiscal quarter
ended August 31, 2002 (SEC File No. 0-26136)
(d) Odyssey's current report on Form 8-K dated September 19, 2002 (SEC
File No. 0-26136).
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, 3604 Swann Avenue, Tampa, Florida 33609,
telephone (813) 876-1776, 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 . . . . . . . . . . . . . . $ 656
Legal Fees and Expenses . . . . . . . . . . . 5,000
Accounting Fees and Expenses. . . . . . . . . 2,000
Miscellaneous . . . . . . . . . . . . . . . . 344
------
TOTAL . . . . . . . . . . . . . . . . . . $8,000
======
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The only statute, charter provision, bylaw, contract, or other
arrangement 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,
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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 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.
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 by Incorporated by reference to
Series C Convertible Preferred Exhibit 3.1 to the Company's
Stock Report on Form 8-K dated
September 19, 2002
5 Opinion of Krys Boyle, P.C., Filed herewith electronically
with respect to the legality of
the securities being registered
23.1 Consent of Ferlita, Walsh & Previously filed
Gonzalez, P.A., Independent
Certified Public Accountants
II-2
23.2 Consent of Krys Boyle, P.C. Included in Exhibit No. 5
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:
(i) To include any prospectus required by Section 10(a)(3) of the
1933 Act;
(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. 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.
(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 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 to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
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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-2 and has duly caused this
Amendment No. 1 to the Registration Statement on Form S-2 to be signed on its
behalf by the undersigned, hereunto duly authorized, in Tampa, Florida, on
November 8, 2002.
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 Amendment No. 1 to the 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 Nov. 8, 2002
John C. Morris of the Board of Directors
/s/ Gregory P. Stemm Vice President and Nov. 8, 2002
Gregory P. Stemm Director
/s/ David A. Morris Secretary and Treasurer Nov. 8, 2002
David A. Morris (Principal Accounting
Officer)
/s/ Michael V. Barton Chief Financial Officer Nov. 8, 2002
Michael V. Barton
/s/ Henri G. DeLauze Director Nov. 8, 2002
Henri G. DeLauze
/s/ George Knutsson Director Nov. 8, 2002
George Knutsson
__________________________ Director
David J. Saul