As filed with the Securities and Exchange Commission on August 12, 2004
SEC Registration No. 333-117153
===========================================================================
U.S. SECURITIES AND EXCHANGE COMMISSION
AMENDMENT NO. 1 TO
FORM S-3 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ODYSSEY MARINE EXPLORATION, INC.
-----------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Nevada
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(State or Other Jurisdiction of Incorporation)
84-1018684
------------------------------------
(IRS Employer Identification Number)
3604 Swann Avenue, Tampa, Florida 33609
(813) 876-1776
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(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
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(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 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 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, 3,500,000(1) $2.76(2) $9,660,000 $1,223.92(3)
$.0001 Par Value
____________________________________________________________________________
(1) To be offered by selling shareholders.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based on the average of the high and low sales prices
of the common stock as reported on the American Stock Exchange on July 1,
2004.
(3) Previously paid.
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.
PURSUANT TO RULE 429, THE PROSPECTUS INCLUDED AS PART OF THIS REGISTRATION
STATEMENT ALSO RELATES TO TWO REGISTRATION STATEMENTS ON FORM S-2, FILE NOS.
333-99953 EFFECTIVE NOVEMBER 21, 2002, AND 333-109142 EFFECTIVE OCTOBER 6,
2003.
PROSPECTUS SUBJECT TO COMPLETION DATED AUGUST 12, 2004
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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.
14,930,034 Shares of Common Stock
Certain selling shareholders are offering the shares of common stock.
The common stock is traded on the American Stock Exchange (Symbol: OMR).
On August 11, 2004, the closing price of the common stock was $2.32.
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 5.
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.
_______, 2004
TABLE OF CONTENTS
PAGE
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . . . . . 3
COMPANY SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . 5
RISK FACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . 6
RECENT MATERIAL CHANGES IN OUR BUSINESS . . . . . . . . . . . . . 7
SELLING SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . . . 7
PLAN OF DISTRIBUTION. . . . . . . . . . . . . . . . . . . . . . . 13
DESCRIPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . 14
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . 15
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2
AVAILABLE INFORMATION
We are subject to the information requirements of the Securities Exchange
Act of 1934, as amended, and in accordance therewith file reports and other
information with the Securities and Exchange Commission. Such reports and
other information filed by us can be inspected and copied at the public
reference facilities of the Commission at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549. Requests for copies should be
directed to the Commission's Public Reference Section, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the Commission at
1-800-SEC-0330 for more information on the public reference rooms. The
Commission maintains a Web site (http://www.sec.gov) that contains reports,
proxy and information statements and other information regarding registrants,
including us, that file electronically.
We have filed with the Commission a Registration Statement on Form S-3
(together with all exhibits, amendments and supplements, the "Registration
Statement") of which this prospectus constitutes a part, under the Securities
Act of 1933, as amended (the "Securities Act"). This prospectus does not
contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules of the
Commission. For further information pertaining to us, reference is made to
the Registration Statement. Statements contained in this prospectus or any
document incorporated herein by reference concerning the provisions of
documents are necessarily summaries of such documents, and each such statement
is qualified in its entirety by reference to the copy of the applicable
document filed with the Commission. Copies of the Registration Statement are
on file at the offices of the Commission, and may be inspected without charge
at the offices of the Commission, the addresses of which are set forth above,
and copies may be obtained from the Commission at prescribed rates. The
Registration Statement has been filed electronically through the Commission's
Electronic Data Gathering, Analysis and Retrieval System and may be obtained
through the Commission's Web site (http://www.sec.gov).
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents that we have filed with the Commission shall be
deemed to be incorporated in this prospectus and to be a part hereof from the
date of the filing of such documents:
1. Annual Report on Form 10-KSB for the fiscal year ended February 29, 2004
(SEC File No. 1-31895).
2. Current Report on Form 8-K, dated May 26, 2004 (SEC File No. 1-31895).
3. Current Report on Form 8-K, dated June 24, 2004 (SEC File No 1-31895).
4. Quarterly Report on Form 10-QSB for the quarter ended May 31, 2004
(SEC File No. 1-31895).
5. Current Report on Form 8-K, dated July 23, 2004 (SEC File No. 1-31895).
6. The description of our common stock contained in our Registration
Statement on Form 8-K filed November 13, 2003 (SEC File No. 1-31895).
7. All documents filed by us, subsequent to the date of this prospectus,
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, prior to the termination of the offering described herein.
3
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for all purposes to the extent
that a statement contained in this prospectus or in any other subsequently
filed document which is also incorporated herein by reference modifies or
replaces such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this prospectus.
We will provide without charge to each person, including any beneficial
owner, to whom this prospectus is delivered, on written or oral request of
such person, a copy of any or all documents incorporated by reference in this
prospectus. Requests for such copies should be directed to Odyssey, 3604
Swann Avenue, Tampa, Florida 33609, telephone (813) 876-1776, and directed to
the attention of John C. Morris, President.
CAUTIONARY STATEMENT FOR PURPOSES OF THE PRIVATE SECURITIES LITIGATION REFORM
ACT OF 1995 AND OTHER FEDERAL SECURITIES LAWS
We are including the following discussion to inform our existing and
potential security holders generally of some of the risks and uncertainties
that can affect us and to take advantage of the "safe harbor" protection for
forward-looking statements afforded under federal securities laws. From time
to time, our management or persons acting on our behalf make forward-looking
statements to inform existing and potential security holders about us.
Statements that are not historical in nature, particularly those that utilize
terminology such as "may," "will," "should," "likely," "expects,"
"anticipates," "estimates," "believes" or "plans," or comparable terminology,
are forward-looking statements based on current expectations and assumptions,
and entail various risks and uncertainties that could cause actual results to
differ materially from those expressed in such forward-looking statements.
4
COMPANY SUMMARY
Odyssey Marine Exploration, Inc. ("Odyssey," "we" or "us") is engaged in
the archaeologically sensitive exploration and recovery of deep-water
shipwrecks throughout the world. We employ advanced state-of-the-art
technology including side scan sonar, remotely operated vehicles, or ROVs, and
other advanced technology, which enables us to locate and recover shipwrecks
at depths that were previously unreachable in an economically feasible manner.
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 and quarterly reports on Form 10-QSB and the other documents
incorporated by reference into this Prospectus:
SPECIAL RISKS OF THE BUSINESS. An investment in a business such as that
of Odyssey should be considered extremely speculative and very risky. Although
we have access to a substantial amount of research and data, which has been
compiled regarding our various projects, the quality and reliability of such
research and data, like all research and data of its nature, 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 been salvaged, or may not have had
anything of value on board at the time of the sinking. Furthermore, even if
objects of believed value are located and recovered, there is the possibility
that others, including both private parties and governmental entities,
asserting conflicting claims, may 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 thereto, 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.
UNCERTAIN RELIABILITY OF RESEARCH AND DATA. The success of a shipwreck
project will be dependent to a substantial degree upon the research and data
assimilated by us. By its very nature, however, all such research and data
regarding shipwrecks, such as those sought by us, is imprecise, incomplete and
unreliable as 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.
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 during others. There can be no
assurances that we will be able to conduct our search and/or recovery
operations only during such favorable periods. In addition, even though sea
conditions in a particular search location may be somewhat predictable, the
possibility exists that unexpected conditions in a search area may occur and
that such unexpected conditions might adversely affect our operations.
Further, it is possible that natural hazards may prevent or significantly
delay search and/or recovery operations.
5
UNCERTAIN TITLE TO OBJECTS LOCATED. Persons and entities other than
Odyssey and entities it is 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 rights to property recovered as against governmental entities, prior
owners, or other attempted salvors claiming an interest therein.
UNCERTAIN MARKET FOR AND VALUE OF RECOVERED OBJECTS. It is difficult to
predict the price that might be realized from the sale of items that have been
recovered or may be recovered in the future from shipwrecks. The value of the
recovered items will fluctuate with a precious metals market that has been
highly volatile in recent years. Moreover, the entrance on the market of a
large supply of similar items from shipwrecks located and recovered by others
could itself depress the market for these items.
DELAY IN DISTRIBUTION OR SALE OF RECOVERED OBJECTS. The methods and
channels, which may be used in the disposition of the recovered items, are
uncertain at present and may include one or a combination of several
alternatives. Ready access to buyers for disposition of any artifacts or other
valuable items recovered, however, cannot be assured and delays in the
disposition of such items are very possible.
THEFT. 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.
COMPETITION. 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 the shipwreck that we are planning 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 than we
have.
FAILURE TO OBTAIN PERMITS. It is possible that we will not be successful
in obtaining title to, or permission to excavate the shipwrecks. In addition,
permits for the projects may never be issued, and if issued, may not be legal
or honored by the entities that issued them.
GENERIC PREFERRED STOCK AUTHORIZED. 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. Other companies on occasion have
issued series of such preferred stock with terms, rights, preferences and
restrictions that could be considered to discourage other persons from
attempting to acquire control of such companies and thereby insulate incumbent
management. It is possible we could issue shares of our Preferred Stock for
such a purpose. In certain circumstances, the existence of corporate devices
that would inhibit or discourage takeover attempts could have a depressant
effect on the market value of our Common Stock.
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 $9,870,000 may be received by Odyssey. Any
net proceeds received from the exercise of the warrants will be used for
general corporate purposes.
6
RECENT MATERIAL CHANGES IN OUR BUSINESS
There have been no material changes in our business since February 29,
2004, that have not been reported in our Reports on Form 10-QSB or Form 8-K,
except as follows:
On May 24, 2004, we announced that Michael J. Holmes had become our new
Chief Financial Officer. Mr. Holmes has more than 25 years experience in
financial management with Anheuser-Busch Companies, Inc. including Vice
President Finance at SeaWorld Orlando; Vice President Finance at Busch Gardens
Tampa Bay; Vice President Finance and CFO for Exploration Cruise Lines in
Seattle, Washington and Director Internal Audit Services for Anheuser-Busch in
St. Louis. He has served as Controller for Odyssey Marine Exploration since
March 2004, when he joined the company to assist in development of tourist
attraction financial models and internal audit controls at the company.
On July 22, 2004, we announced that David D. Howe had become our new
Chief Operating Officer, replacing George J. Becker, Jr., who was appointed
Executive Vice President. Mr. Howe has over 20 years of senior management
experience in sales, marketing, and operations with several major public
companies, including Vice President of Operations Improvement for Nextel
Communications, and Senior Vice President of Operations for Aerial
Communications (VoiceStream) and Intermedia.
SELLING SHAREHOLDERS
The securities being offered hereby are 14,930,034 shares being offered
for resale by certain shareholders. Of those shares, the selling shareholders
currently hold 10,960,034. Up to 3,950,000 shares are issuable upon exercise
of warrants held by the selling shareholders. The shares are being offered
for the account of 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 currently held to be offered;
* 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.
7
Ownership Before Offering
----------------------------------------
Number of Shares
Shares Issuable
Currently on Exer-
Held to be cise of Shares
Selling Shareholder Offered Warrants Offered
------------------- ---------- --------- --------
Adanic Capital Ltd. (1) 50,000 - 50,000
Glenn C. Angstadt 50,000 50,000 100,000
Daniel S. Bagley 25,000 25,000 50,000
Bannon Private Equity Fund Ltd. - 200,000 200,000
Michael V. Barton (2) 20,000 - 20,000
BBACA, Ltd. 10,000 - 10,000
Robert R. Bears, Jr. 260,000 100,000 360,000
Robert R. Bears, Sr. 260,000 100,000 360,000
George J. Becker, Jr. (3) 20,000 - 20,000
Bellestar Investments Corp. 23,000 - 23,000
Bison Investments 120,000 120,000 240,000
Christina Blanchard POD
Paul M. Blanchard 8,000 - 8,000
Lyle C. Blanden 80,000 - 80,000
Bleu Ridge Consultants, Inc. 5,000 - 5,000
Bleu Ridge Consultants, Inc.,
Profit Sharing Plan & Trust 58,500 100,000 158,500
Jan Boltres 20,000 - 20,000
Thomas Boltres and Arnoldine R.
Boltres 40,000 - 40,000
Brandar Group Ltd Partnership 12,500 12,500 25,000
Canyon Group LLC 145,000 125,000 270,000
Charitable Remainder Trust of
Mary Jane Brasel 23,000 20,100 43,100
Charitable Remainder Trust of
Susan Anne Brasel 22,000 20,100 42,100
Charitable Remainder Trust of
Timothy J. Brasel 27,500 69,800 97,300
Theodore W. and Gina M. Cannarozzi 120,000 120,000 240,000
Charles W. and Jenny M. Ciolino 40,000 50,000 90,000
Charles W. Ciolino, Jr. 40,000 50,000 90,000
Christopher & Company Ltd. 50,000 50,000 100,000
COMEX, SA (4) 80,000 - 80,000
E. Eugene Cooke 40,000 - 40,000
James E. Cooke 60,000 - 60,000
Mark P. Cooke 100,000 100,000 200,000
Christopher R. Cope 50,000 50,000 100,000
Christopher R. Cope & Kathryn D.
Cope, JTWROS 50,000 50,000 100,000
Walter C. Copeland 12,500 12,500 25,000
Equity Trust Co.,
Custodian FBO Walter C. Copeland
IRA 29865 40,000 - 40,000
Robert A. Craig 15,000 - 15,000
Community National Bank, Cust FBO
Michael L. Crifasi, IRA #332593 40,000 - 40,000
Michael L. Crifasi 100,000 50,000 150,000
Curtis J. Dashiell and Connie R.
Tanner-Dashiell, JTWROS 20,000 25,000 45,000
8
Blythe W. Ebbert, TTEE Blythe W.
Ebbert Revocable Trust 8,333 8,333 16,666
Eric R. Ebbert, TTEE Eric R. Ebbert
Revocable Trust 8,333 8,333 16,666
Hugh N. Farrior 150,000 - 150,000
James L. Ferman, Jr. 360,000 220,000 580,000
Neal J. Fink and Kenneth N. Fink,
Co-Trustee of Adele S. Fink
Trust No. 2 25,000 25,000 50,000
UBF Financial Services, Inc. f/b/o
Neal J. Fink IRA 75,000 75,000 150,000
Delaware Charter FBO
Joseph D. Freedman IRA 100,000 60,000 160,000
Jay M. Garner 20,000 - 20,000
Jay M. Garner and M. Connie Garner 789 0 789
Justin Gasarch - 60,000 60,000
Richard M. Gawlick & Linda J. Gawlick 25,000 25,000 50,000
Christopher Hall 100 - 100
Daryl S. Hersch, IRA 13,100 40,000 53,100
A. Teresa Hirsch 25,000 - 25,000
J. L. Holdings 400,000 - 400,000
Leonard H. Johnson 2,000 - 2,000
Eric J. Jolly 20,000 - 20,000
JYT Enterprises, Inc. 50,000 - 50,000
Don Kagin 100,000 - 100,000
Kagin's Inc. 40,000 - 40,000
George E. Lackman, Jr., IRA(5) 100,000 100,000 200,000
Donald M. Lionetti 20,000 - 20,000
LLB Communications, Inc. (6) 30,000 - 30,000
Patricia C. Loughery 80,000 80,000 160,000
William A. Loughery 20,000 20,000 40,000
Lowe Family Limited Partnership 261,000 - 261,000
Eugene Lundgren 40,000 - 40,000
MacDougald Family Limited
Partnership (7) 3,500,000 - 3,500,000
Margaret M. McElroy 100,000 100,000 200,000
Ronald J. Morrick and Enolia Ann
Morrick, Tenants by the
Entireties 10,000 80,000 90,000
John C. Morris (8) 50,000 - 50,000
Nelda D. Norbom Revocable Trust
dated 4/25/00 80,000 50,000 130,000
Robert E. Nussear, Sr. 80,000 - 80,000
Richard A. Pawliger 110,000 50,000 160,000
Delaware Charter TTEE Joseph J.
Peirce Std IRA 50,000 50,000 100,000
J.J. Peirce 100,000 100,000 200,000
Howard M. Pritchard 300,000 - 300,000
Howard M. Pritchard, IRA 200,000 - 200,000
Ken S. Protas 192,000 125,000 317,000
Jerome Reinert 28,000 - 28,000
Keith Reinert 6,000 - 6,000
Gordon Reinert 6,000 - 6,000
P.N. Risser III, Trustee P.N. Risser
III Revocable Trust 44,500 - 44,500
Royal Griffin, Ltd 24,000 - 24,000
Kenneth J. Sandstrom 120,000 120,000 240,000
David and Christine Saul (9) 180,000 100,000 280,000
9
Sawyer Family Partners Ltd. 120,000 - 120,000
Jon D. Sawyer 50,000 50,000 100,000
Brynne Williams Shaner 8,333 8,333 16,666
William W. Shaner, III 8,333 8,333 16,666
Steven R. Simpson 260,000 100,000 360,000
Steven and Andrea Simpson 240,000 240,000 480,000
Clayton Sissons 33,000 50,000 83,000
1017348 Alberta Ltd. - 50,000 50,000
David E. Six and Jennifer L. Six 12,500 12,500 25,000
Robert Stemm 74,100 32,500 106,600
Neal A. Stubbs 80,000 - 80,000
Ernesto Tapanes 100,000 - 100,000
Tiara Development II, Inc. 45,000 80,000 125,000
David G. Tibma 50,000 50,000 100,000
Roy Truman 25,000 25,000 50,000
David J. Wendt 25,600 - 25,600
WIT Ventures, Ltd. 15,000 30,000 45,000
Preston A. Whaley 245,012 - 245,012
James K. Wiley 40,000 - 40,000
Robert W. Baird & Co. Inc., TTEE FBO
Jerry L. Williams, IRA 100,000 100,000 200,000
Margit Bessenyey Williams Revocable
Trust dated 7/7/95 8,333 8,333 16,666
Jane J. Williams Revocable Trust
U/A dated 5/8/90 50,002 50,002 100,004
Brooke Williams TTEE, Brooke
Williams Revocable Trust 58,333 58,333 116,666
WIT Ventures, Ltd. 15,000 30,000 45,000
Carolyn A. Yokley &
John H. Yokley, Jr. 40,000 - 40,000
---------- --------- ----------
Total 10,960,034 3,950,000 14,930,034
___________
(1) Greg Stemm, an Officer and Director of Odyssey, serves as the general
Partner of Adanic Capital Ltd.
(2) Michael V. Barton was Chief Financial Officer of Odyssey until May 24,
2004.
(3) George J. Becker, Jr. is Chief Operating Officer of Odyssey.
(4) COMEX, SA is owned by Henri Delauze, a Director of Odyssey.
(5) George Lackman is a Director of Odyssey.
(6) LLB Communications is a company of which Michael V. Barton, former Chief
Financial Officer of Odyssey, is an officer.
(7) MacDougald Family Limited Partnership is a principal shareholder of
Odyssey.
(8) John Morris is Chief Executive Officer and Chairman of the Board of
Directors of Odyssey.
(9) David Saul is a Director of Odyssey.
10
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 (1)
----------------- --------
Adanic Capital Ltd. 1,118,059 2.91%
Glen C. Angstadt 55,000 0.14%
Daniel S. Bagley 10,000 0.03%
Michael V. Barton 307,115 (2) 0.80%
Robert R. Bears, Jr. 465,000 1.21%
Robert R. Bears, Sr. 34,000 0.09%
George J. Becker Jr. 173,400 (3) 0.45%
Bellstar Investments Corp. 20,000 0.05%
Lyle C. Blanden 93,112 0.24%
Bleu Ridge Consultants, Inc.,
Profit Sharing Plan & Trust 145,752 0.38%
Jan Boltres 24,000 0.06%
Thomas Boltres and Arnoldine R.
Boltres 65,027 0.17%
Brandar Group Ltd Partnership 36,000 0.09%
Charitable Remainder Trust of Mary
Jane Brasel 20,000 0.05%
Charitable Remainder Trust of Susan
Anne Brasel 20,000 0.05%
Charitable Remainder Trust of
Timothy J. Brasel 27,500 0.07%
Theodore W. and Gina M. Cannarozzi 4,500 0.01%
Canyon Group LLC 700,000 1.82%
Christopher & Company, Ltd. 1,000 0.00%
Charles W. Ciolino, Jr. 5,000 0.01%
E. Eugene Cooke 1,193,887 3.10%
James E. Cooke 301,870 0.78%
Mark P. Cooke 250,000 0.65%
Christopher R. Cope 120,000 0.31%
Equity Trust Co.,
Custodian FBO Walter C. Copeland
IRA 29865 210,000 0.55%
Community National Bank, Cust FBO
Michael L. Crifasi, IRA #332593 70,929 0.18%
Michael L. Crifasi 43,863 0.11%
Hugh N. Farrior 3,000 0.01%
James L. Ferman, Jr. 20,000 0.05%
Neal J. Fink and Kenneth N. Fink,
Co-Trustee of Adele S. Fink Trust No. 2 290,205 0.75%
UBF Financial Services, Inc. f/b/o
Neal J. Fink IRA 215,205 0.56%
Delaware Charter FBO
Joseph D. Freedman IRA 43,800 0.11%
Justin Gasarch 6,000 0.02%
Richard M. Gawlick & Linda J. Gawlick 61,500 0.16%
Daryl S. Hersch, IRA 38,000 0.10%
A. Teresa Hirsch 35,000 0.09%
11
J.L. Holdings 114,000 0.30%
Don Kagin 384,604 1.00%
George E. Lackman, Jr., IRA 62,500 (4) 0.16%
Donald M. Lionetti 13,000 0.03%
Patricia C. Loughery 80,000 0.21%
Eugene Lundgren 26,300 0.07%
MacDougald Family Limited Partnership 3,594,008 (5) 9.35%
Margaret M. McElroy 168,000 0.44%
John C. Morris 1,589,129 (6) 4.11%
Nelda D. Norbom Revocable Trust
dated 4/25/00 89,627 0.23%
Robert E. Nussear, Sr. 7,000 0.02%
Richard A. Pawliger 122,876 0.32%
J.J. Peirce 51,900 0.13%
Delaware Charter TTEE Joseph J.
Peirce Std IRA 12,400 0.03%
Howard M. Pritchard, IRA 10,000 0.03%
P.N. Risser III, Trustee P.N. Risser
III Revocable Trust 20,000 0.05%
Royal Griffin, Ltd 19,000 0.05%
David and Christine Saul 250,000 (7) 0.65%
Sawyer Family Partners Ltd. 45,157 0.12%
Jon D. Sawyer 38,627 0.10%
Steven R. Simpson 167,000 0.43%
Clayton Sissons 65,000 0.17%
David E. Six and Jennifer L. Six 48,400 0.13%
Robert Stemm 259,548 0.67%
Ernesto Tapanes 289,000 0.75%
Tiara Development II, Inc. 1,050,000 2.73%
Roy Truman 25,000 0.06%
David J. Wendt 34,517 0.09%
James K. Wiley 33,000 0.09%
Robert W. Baird & Co. Inc., TTEE FBO
Jerry L. Williams, IRA 38,000 0.10%
Margit Bessenyey Williams Revocable
Trust dated 7/7/95 8,333 0.02%
Jane J. Williams Revocable Trust
U/A dated 5/8/90 19,200 0.05%
Brooke Williams TTEE, Brooke
Williams Revocable Trust 58,333 0.15%
______________
(1) The percentage of ownership for each selling shareholder is based on
38,455,599 shares outstanding as of June 25,2004.
(2) Includes 157,115 shares held by Mr. Barton and his wife, and 150,000
shares underlying currently exercisable stock options held by Mr. Barton
and his wife.
(3) Includes 23,400 shares held directly and 150,000 shares underlying
currently exercisable stock options held by Mr. Becker.
(4) Includes 62,500 shares underlying currently exercisable stock
options held by Mr. Lackman.
(5) Includes 13,594,008 shares 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 grandchildren
of Mr. and Mrs. MacDougald. MMI is the general partner of MFLP.
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(6) Includes 1,364,129 shares held directly and 225,000 shares underlying
currently exercisable stock options held by Mr. Morris.
(7) Includes 100,000 shares held directly and 150,000 shares underlying
currently exercisable options held by Mr. Saul.
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
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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.
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 August 10, 2004, there were 38,455,599 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. There are currently no shares of preferred stock
outstanding.
WARRANTS
This Prospectus covers the resale of common stock issuable upon the
exercise of certain warrants. As part of a private placement, the conversion
of certain notes and the issuance of shares to a consultant that were
completed in August 2003, Odyssey issued warrants to purchase 4,917,500 shares
of common stock. Of these, warrants for the purchase of 3,917,500 shares
remain unexercised. The warrants give the holders the right to purchase shares
of common stock at $2.50 per share. These warrants expire on October 5, 2005.
Also, as consideration for loans to the Company, an individual was
issued warrants that expire on March 31, 2005 for the purchase of 21,500
shares at $2.00 per share and for the purchase of 11,000 shares at $3.00 per
share.
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 303,784 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 29, 2004, 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.
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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 . . . . . . . . . . . . . . $ 1,224
Legal Fees and Expenses . . . . . . . . . . . 5,000
Accounting Fees and Expenses. . . . . . . . . 2,000
Miscellaneous . . . . . . . . . . . . . . . . 1,776
-------
TOTAL . . . . . . . . . . . . . . . . . . $10,000
=======
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,
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)
5 Opinion of Krys Boyle, P.C., Previously filed
with respect to the legality of
the securities being registered
23.1 Consent of Ferlita, Walsh & Filed herewith electronically
Gonzalez, P.A., Independent
Certified Public Accountants
23.2 Consent of Krys Boyle, P.C. Included in Exhibit No. 5
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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:
(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 that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934(and, where applicable, each filing of an
employee benefits plan annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of Odyssey
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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
Amendment No. 1 to the Registration Statement on Form S-3 to be signed on its
behalf by the undersigned, hereunto duly authorized, in Tampa, Florida, on
August 12, 2004.
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 August 12, 2004
John C. Morris of the Board of Directors
/s/ Gregory P. Stemm Vice President and August 12, 2004
Gregory P. Stemm Director
/s/ Michael J. Holmes Chief Financial Officer August 12, 2004
Michael J. Holmes (Principal Financial
Officer)
/s/ David A. Morris Secretary and Treasurer August 12, 2004
David A. Morris (Principal Accounting
Officer)
/s/ Henri G. DeLauze Director August 12, 2004
Henri G. DeLauze
/s/ George Knutsson Director August 12,2004
George Knutsson
___________________________ Director
David J. Saul
/s/ George E. Lackman Director August 12, 2004
George E. Lackman
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