Filed Pursuant to Rule 424(b)(3)
Registration Statement No. 333-123650
PROSPECTUS
_____________________________________________________________________________
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.
5,870,000 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 September 23, 2005, the closing price of the common stock was $3.75.
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.
September 23, 2005
TABLE OF CONTENTS
PAGE
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . . . . . 3
COMPANY SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . 5
RISK FACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . 7
RECENT MATERIAL CHANGES IN OUR BUSINESS . . . . . . . . . . . . . 7
SELLING SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . . . 8
PLAN OF DISTRIBUTION. . . . . . . . . . . . . . . . . . . . . . . 10
DESCRIPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . 11
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . 12
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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 100 F Street NE, Washington,
D.C. 20549. Requests for copies should be directed to the Commission's
Public Reference Section, 100 F Street NE, 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, 100 F Street NE, Washington,
D.C. 20549, 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 transition period ended
December 31, 2004 (SEC File No. 1-31895).
2. Amendment No. 1 to Annual Report on Form 10-KSB for the transition
period ended December 31, 2004 (SEC File No. 1-31895).
3. Amendment No. 2 to Annual Report on Form 10-KSB for the transition
period ended December 31, 2004 (SEC File No. 1-31895).
4. Quarterly Report on Form 10-QSB for the quarter ended June 30, 2005
(SEC File No. 1-31895).
5. Quarterly Report on Form 10-QSB for the quarter ended March 31, 2005
(SEC File No. 1-31895).
3
6. Current Report on Form 8-K, dated August 3, 2005 (SEC File No.
1-31895).
7. Current Report on Form 8-K, dated January 27, 2005 (SEC File No.
1-31895).
8. Current Report on Form 8-K, dated January 31, 2005 (SEC File No.
1-31895).
9. Current Report on Form 8-K, dated February 23, 2005 (SEC File No.
1-31895).
10. Current Report on Form 8-K, dated June 2, 2005 (SEC File No. 1-31895).
11. Current Report on Form 8-K, dated April 21, 2005 (SEC File No. 1-
31895).
12. Current Report on Form 8-K, dated March 10, 2005 (SEC File No. 1-31895).
13. The description of our common stock contained in our Registration
Statement on Form 8-A filed November 13, 2003 (SEC File No. 1-31895).
14. 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.
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, 5215
West Laurel Street, Tampa, Florida 33607, 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, that enables us to locate and recover
shipwrecks at depths that were previously unreachable in an economically
feasible manner.
Our corporate offices are located at 5215 West Laurel Street, Tampa,
Florida 33607. 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:
Our business involves a high degree 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 the cost of recovery
exceeds the value of the objects recovered or that others, including both
private parties and governmental entities, will assert conflicting claims and
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.
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.
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
5
certain months of the year than others. We cannot guarantee 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
our 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, we cannot assure
you 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 revenue 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 that may be used in the disposition or sale of
recovered items are uncertain at present and may include several
alternatives. Ready access to buyers for any artifacts or other valuable
items recovered cannot be assured. Delays in the disposition of such items
could adversely affect our cash flow.
Objects we recover could be stolen from us.
If we locate a shipwreck and assert a valid claim to items of value,
there is a risk of theft of such items at sea, both before and after their
recovery, by "pirates" or poachers and while in transit to a safe
destination. Such thefts may not be adequately covered by insurance.
We face competition from others.
There are a number of competing entities engaged in various aspects of
the shipwreck business, and in the future other competitors may emerge. 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.
6
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.
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. Our 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.
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 $11,095,000 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 December 31,
2004, that have not been reported in our Reports on Form 10-QSB or Form 8-K,
except as follows:
On July 5, 2005, we announced that Odyssey has been officially included
in the Russell 3000, the Russell 2000, and the new Russell Microcap Indexes.
On June 28, 2005, we announced that the discussions between Odyssey, the
Kingdom of Spain, the United Kingdom, the United States, and the regional
government of Andalucia, regarding the British warship HMS Sussex, as well as
cultural interests and underwater archaeology in the region, have been
ongoing. Greg Stemm, our Vice President, Research and Operations, has
returned from talks with representatives of the Junta de Andalucia, where he
was accompanied by representatives of both the U.S. and UK governments.
While performing search, survey and archaeological work in the western
Mediterranean, the Company located 23 shipwreck sites, produced 14 pre-
disturbance photomosaics, and completed preliminary excavations on 7 sites.
The archaeological work, accomplished under the direction of Odyssey
archaeologists Dr. Hawk Tolson and Neil Cunningham Dobson, resulted in the
recovery of a substantial number of artifacts which are undergoing
conservation and study by Odyssey's research department to aid in
identification of the sites.
7
Also on June 28, 2005, we announced that the Odyssey Explorer has joined
a chartered side-scan survey vessel to work in the 2005 "Atlas" search area.
Since announcing the start of the "Atlas" search project on May 4, 2005,
Odyssey has identified approximately 275 targets and inspected 127 targets
with ZEUS, one of the Company's Remotely Operated Vehicles (ROV). Because
Odyssey's new side-scan sonar system allows crews to map the seafloor twice
as fast as previous searches, having a deep-water ROV on a second ship to
visually inspect targets is expected to result in a more efficient and
productive search process. In addition, the weather window for the "Atlas"
project typically ends in the fall while work can continue on the Sussex
project year-round. The RV Odyssey remains in the western Mediterranean
available to do preliminary work on the Sussex site until the Odyssey
Explorer returns.
On June 8, 2005 we announced that a newly formed subsidiary, Odyssey
Marine Entertainment, Inc., would open an interactive shipwreck and treasure
attraction in the French Quarter of New Orleans, Louisiana. The grand opening
of the attraction occurred on August 27, 2005. Located in the Jax Brewery,
Odyssey's Shipwreck & Treasure Adventure is expected to appeal to the public
fascination with shipwrecks and sunken treasure. The attraction will tell the
stories behind some of the world's most famous shipwrecks, their treasure and
historical artifacts, and will allow visitors to experience the adventure and
excitement of deep-ocean shipwreck exploration through multiple hands-on
exhibits. Due to Hurricane Katrina, the attraction was closed on August 27,
2005, immediately after the grand opening.
On September 7, 2005, we issued an announcement regarding the effect of
Hurricane Katrina on our attraction located at Jax Brewery in New Orleans,
which updated a prior announcement. We stated that the Jax Brewery building
in which the attraction resides appears structurally sound, that there was no
flooding in the immediate area, and that security conditions on the streets
of the French Quarter have stabilized with a massive National Guard presence.
No damage resulting from looting, fires, or flooding have been reported to
the Jax building or the Odyssey attraction or any of its exhibits.
Additionally, we were able to safely remove all irreplaceable artifacts and
valuables including all coins and other high-value items from the New Orleans
facility. We also have insurance coverage for damage and business
interruption due to natural catastrophes. Management is unable to predict
when conditions in the area will allow the attraction to reopen.
SELLING SHAREHOLDERS
The securities being offered hereby are 5,870,034 shares being offered
for resale by certain shareholders. Of those shares, the selling
shareholders currently hold 2,700,000. Up to 3,170,000 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;
8
* 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.
Ownership Before Offering
------------------------------------
Number of Shares
Shares Issuable
Currently on Exer-
Held to be cise of Shares
Selling Shareholder Offered Warrants Offered
------------------- ---------- --------- --------
GLG North American Opportunity
Fund 1,000,000 1,000,000 2,000,000
Trinity Fund 500,000 500,000 1,000,000
Drawbridge Global Macro Master
Fund Ltd. 1,008,000 1,008,000 2,016,000
Drawbridge Investment Partners 192,000 192,000 384,000
Greg Capello 0 235,000 235,000
Albert Mark Lelekacs 0 235,000 235,000
--------- --------- ---------
Total 2,700,000 3,170,000 5,870,000
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)
----------------- --------
GLG North American Opportunity
Fund 1,325,000 3.1%
Trinity Fund 320,000 *
Drawbridge Global Macro Master
Fund Ltd. 1,521,707 3.6%
Drawbridge Investment Partners 289,849 *
Greg Capello -- --
Albert Mark Lelekacs 63,000 *
______________
* Less than 1%.
(1) The percentage of ownership for each selling shareholder is based on
42,913,224 shares outstanding as of August 31, 2005.
The information concerning the selling shareholders may change from time
to time and will be set forth in supplements to this prospectus.
9
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.
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
10
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 31, 2005, there were 42,913,224 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.
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.
11
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. Of the warrants, 2,700,000 were included in
the units which were sold to four institutional investors in a private
placement that was completed on March 10, 2005. In addition, a total of
470,000 warrants were issued to two assignees of the placement agent for the
private offering as part of the commission for the offering. The warrants
give the holders the right to purchase common stock at an exercise price of
$3.50 per share during the two year period expiring on March 9, 2007.
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 311,784 shares of Odyssey's common stock.
EXPERTS
The financial statements appearing in our Annual Report on Form 10-KSB
for the transition period ended December 31, 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.
12