As Filed With the Securities and Exchange Commission on June 1, 2006
Registration Statement No. __________
_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT of 1933
ODYSSEY MARINE EXPLORATION, INC.
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(Exact Name of Registrant in its Charter)
Nevada 84-1018684
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5215 West Laurel Street, Tampa, Florida 33607
(813) 876-1776
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(Address and telephone number of principal executive
offices and principal place of business)
ODYSSEY MARINE EXPLORATION, INC. 2005 STOCK INCENTIVE PLAN
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(Full title of plan)
Michael J. Holmes, Chief Financial Officer
Odyssey Marine Exploration, Inc.
5215 West Laurel Street, Tampa, Florida 33607
(813) 876-1776
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(Name, address and telephone number of agent for service)
Copy to:
James P. Beck, Esq.
Krys Boyle, P.C.
600 Seventeenth Street, Suite 2700 South
Denver, Colorado 80202
(303) 893-2300
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Class of Offering Aggregate Amount of
Securities to be Amount to be Price Offering Registration
Registered Registered Per Share Price Fee
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Common Stock, 1,010,000 $ 3.67 (1) $3,706,700(1) $ 396.62
$.0001 Par Value
Common Stock, 1,490,000 $ 2.43 (2) $3,620,700(2) $ 387.41
$.0001 Par Value ---------
Total $ 784.03
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(1) Estimated solely for the purpose of computing the amount of registration
fee based on the average exercise price of options outstanding under the 2005
Stock Incentive Plan of $3.67.
(2) Based on the closing price of Registrant's Common Stock on the American
Stock Exchange on May 30, 2006 of $2.43.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Commission are
incorporated in this Registration Statement:
1. Annual Report on Form 10-K for the year ended December 31, 2005.
2. Definitive Proxy Statement filed on March 29, 2006 for the Annual
Meeting of Shareholders held on May 5, 2006.
3. Quarterly Report on Form 10-Q for the quarter ended March 31, 2006.
4. Current Reports on Form 8-K filed on April 3, 2006; March 2 and 16,
2006; February 1, 2006; and January 5, 2006.
5. The description of common stock contained in Registration Statement
on Form 8-A filed November 13, 2003 (SEC File No. 1-31895).
6. All documents filed by the Company, subsequent to the date of this
Registration Statement, 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.
Item 4. Description of Securities. Not applicable.
Item 5. Interests of Named Experts and Counsel. Not applicable.
Item 6. Indemnification of Directors and Officers.
The only statute, charter provision, bylaw, contract, or other arrange-
ment under which any controlling person, director or officer of 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
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corporation to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses, including amounts paid in settlement and
attorneys' fees actually and reasonably incurred by him in connection with the
defense or settlement of the action or suit if he acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation. Indemnification may not be made for any claim,
issue or matter as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action
or suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnify for such expenses as the court
deems proper."
Subsection 78.751(3) further provides that "to the extent that a
director, officer, employee or agent of a corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred
to in subsections 1 and 2, or in defense of any claim, issue or matter herein,
he must be indemnified by the corporation against expenses, including
attorneys' fees, actually and reasonably incurred by him in connection with
the defense."
(b) Article VII of 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 7. Exemption from Registration Claimed. Not applicable.
Item 8. Exhibits.
Exhibit
Number Description Location
------ ----------- ---------
5.1 Opinion of Krys Boyle, P.C.
regarding legality Filed herewith electronically.
23.1 Consent of Ferlita, Walsh &
Gonzalez, P.A. Filed herewith electronically.
23.2 Consent of Krys Boyle, P.C. (Contained in Exhibit 5.1)
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Item 9. 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 the registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(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 (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the SEC
by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) that for purposes of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering;
(4) that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering; and
(5) that, insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Tampa and State of Florida on the
1st day of June, 2006.
ODYSSEY MARINE EXPLORATION, INC.
By: /s/ Michael V. Barton
Michael V. Barton, Chief Executive
Officer
By: /s/ Michael J. Holmes
Michael J. Holmes, Chief Financial
Officer (Principal Financial Officer)
By: /a/ Jay A. Nudi
Jay A. Nudi, Controller
(Principal Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this Form S-8
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature and Title Date
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/s/ John C. Morris June 1, 2006
John C. Morris, Co-Chairman and
Director
/s/ Gregory P. Stemm June 1, 2006
Gregory P. Stemm, Co-Chairman and
Director
/s/ George Knutsson June 1, 2006
George Knutsson, Director
/s/ David J. Saul June 1, 2006
David J. Saul, Director
_________________________________
George E. Lackman, Jr., Director
/s/ David J. Bederman June 1, 2006
David J. Bederman, Director