S-3/A 1 odyssey.txt ODYSSEY MARINE FORM S-3/A #1 333-117153 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 --------------------------------------------- (State or Other Jurisdiction of Incorporation) 84-1018684 ------------------------------------ (IRS Employer Identification Number) 3604 Swann Avenue, Tampa, Florida 33609 (813) 876-1776 ------------------------------------------------------------- (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) John C. Morris, President 3604 Swann Avenue, Tampa, Florida 33609 (813) 876-1776 --------------------------------------------------------- (Name, Address and Telephone Number of Agent for Service) Copy to: Jon D. Sawyer, Esq. Krys Boyle, P.C. 600 17th Street, Suite 2700 South Tower Denver, Colorado 80202 (303) 893-2300 Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement. If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box: [X] If 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 ----------------------------------------------------------------------------- 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. 12 (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 13 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. 14 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. 15 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 II-1 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 II-2 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 II-3 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. II-4 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 II-5