UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 4, 2018
Odyssey Marine Exploration, Inc.
(Exact name of registrant as specified in its charter)
| Nevada | 001-31895 | 84-1018684 | ||
|
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
5215 West Laurel Street
Tampa, Florida 33607
(Address of Principal Executive Offices and Zip Code)
Registrant’s telephone number, including area code: (813) 876-1776
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging Growth Company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01. |
Entry Into a Material Definitive Agreement. |
The disclosure set forth below under Item 2.03 (Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant) is hereby incorporated by reference into this Item 1.01.
| Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
As previously disclosed in the Current Reports on Form 8-K that were filed by Odyssey Marine Exploration, Inc. (“Odyssey”) with the Securities and Exchange Commission on July 18, 2018, and August 20, 2018, Odyssey and two individuals (the “Lenders”) entered into a Note and Warrant Purchase Agreement, dated July 12, 2018 (the “Purchase Agreement”), pursuant to which Odyssey issued and sold to the Lenders (a) secured convertible promissory notes (“Notes”) with an aggregate principal amount of $700,000 and (b) warrants (“Warrants”) to purchase an aggregate of 43,750 shares of Odyssey’s common stock at an exercise price of $12.00 per share. One of the Lenders holds in excess of 5.0% of Odyssey’s outstanding common stock. The descriptions of the Purchase Agreement, Notes, and Warrants set forth in the Form 8-K that was filed on July 18, 2018, are incorporated herein by reference.
On October 4, 2018, Odyssey and the Lenders entered into a First Amendment to Note and Warrant Purchase Agreement, and Odyssey and one of the Lenders held a subsequent closing thereunder at which Odyssey issued and sold to the Lenders an additional Note with a principal amount of $250,000 and an additional Warrant to purchase 15,625 shares of Odyssey’s common stock. The terms and provisions of the Notes and Warrants issued and sold on August 17, 2018, are identical in all material respects with the Notes and Warrants that were issued and sold on July 12, 2018.
| Item 9.01. |
Financial Statements and Exhibits. |
| (a) |
Financial Statements of Businesses Acquired. |
Not applicable.
| (b) |
Pro Forma Financial Information. |
Not applicable.
| (c) |
Shell Company Transactions. |
Not applicable.
| (d) |
Exhibits. |
| * |
Incorporated by reference to the comparably numbered exhibit to Odyssey’s Current Report on Form 8-K that was filed with the Securities and Exchange Commission on July 18, 2018. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| O DYSSEY M ARINE E XPLORATION , I NC . | ||||||||
| Dated: October 9, 2018 | By: | /s/ Jay A. Nudi | ||||||
|
Jay A. Nudi Chief Financial Officer |
||||||||
Exhibit 10.4
Execution Version
F IRST A MENDMENT
TO
N OTE AND W ARRANT P URCHASE A GREEMENT
THIS FIRST AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENT (this “ Amendment ”) is made and entered into effective as of October 4, 2018, by and between ODYSSEY MARINE EXPLORATION, INC. , a Nevada corporation (“ Odyssey ”), and the Initial Lenders (as defined below). All capitalized terms used but not otherwise defined in this Amendment shall have the respective meanings given to such terms in the Original Agreement (as defined below).
Recitals:
A. Odyssey, Kenneth Fried (“ Fried ”), and Steven Moses are parties to a Note and Warrant Purchase Agreement, dated as of July 12, 2018 (the “ Original Agreement ”);
B. Section 9(f) of the Original Agreement provides that the Original Agreement may be amended with the written consent of the Company and the Majority Note Holders;
C. Fried currently holds 75.0% of the aggregate principal amount of the Notes as of the date of this Amendment and therefore constitutes the Majority Note Holders;
D. Fried desires to purchase, and Odyssey desires to sell to Fried, an additional $250,000 of the Notes and a Warrant to purchase an additional 15,625 Conversion Shares (the “ Current Transaction ”) pursuant to the Original Agreement, as amended by this Amendment; and
E. Odyssey and the Fried desire to enter into this Amendment to amend or otherwise modify certain terms of Original Agreement, as set forth in this Amendment, to and to evidence their respective written consent to such amendments and modifications.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
A1. Amendment of Definition of “Outside Date.” Section 1(n) of the Original Agreement is hereby amended by deleting it in its entirety and inserting in lieu thereof the following:
“(n) ‘ Outside Date ’ means October 4, 2018.”
A2. Amendment of Definition of “ExO AR Consolidated Note.” Section 1(h) of the Original Agreement is hereby amended by deleting it in its entirety and inserting in lieu thereof the following:
“(h) ‘ ExO AR Consolidated Note ’ means the Second Amended and Restated Consolidated Note and Guaranty, dated August 31, 2017, in the principal amount of up to $18.0 million, made by ExO and payable to OMO.”
A3. Amendment of Schedule of Lenders. The Schedule of Lenders attached to the Original Agreement is hereby amended by deleting it in its entirety and inserting in lieu thereof Appendix A attached hereto, which gives effect to the consummation of the current transaction.
A4. Miscellaneous.
(a) Full Force and Effect. Except as expressly modified by this Amendment, all of the terms, covenants, agreements, conditions and other provisions of the Original Agreement shall remain in full force and effect in accordance with their respective terms. This Amendment shall not constitute an amendment or waiver of any provision of the Original Agreement except as expressly set forth herein. Upon the execution and delivery hereof, the Original Agreement shall thereupon be deemed to be amended and modified as hereinabove set forth as fully and with the same effect as if the amendments and modifications made hereby were originally set forth in the Original Agreements, and this Amendment the Original Agreement shall henceforth be read, taken and construed as one and the same instrument, but such amendments and modifications shall not operate so as to render invalid or improper any action heretofore taken under the Original Agreement.
(b) Governing Law. This Amendment, and all claims arising out of or relating to it, shall be governed by and construed in accordance with the laws of the State of Florida, excluding that body of law relating to conflict of laws.
(c) Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.
[Signatures on following page]
2
IN WITNESS WHEREOF , the parties hereto have caused this Amendment to be executed and delivered as of the date first written above.
| ODYSSEY MARINE EXPLORATION, INC. | ||
| By: | /s/ Mark D. Gordon | |
|
Mark D. Gordon President and Chief Executive Officer |
||
| KENNETH FRIED | ||
| /s/ Kenneth Fried | ||
| Kenneth Fried | ||
3
Appendix A
Schedule of Lenders
|
Lender |
Date |
Consideration |
Number of Shares of Common Stock Issuable upon Conversion of Note Pursuant to §2(b)(ii) |
Number of Shares of Common Stock Purchasable upon Exercise of Warrant |
||||
|
Ken Fried |
7/12/18 | $300,000 | 37,500 | 18,750 | ||||
|
Steven Moses |
7/12/18 | $200,000 | 25,000 | 12,500 | ||||
|
Ken Fried |
8/17/18 | $200,000 | 25,000 | 12,500 | ||||
|
Ken Fried |
10/4/18 | $250,000 | 31,250 | 15,625 |