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Press Release

Form 10-Q

August 12, 2012

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-Q

 

 

 

     x     Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the quarterly period ended June 30, 2012

or

 

     ¨     Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the transition period from         to         

Commission File Number 001-31895

 

 

ODYSSEY MARINE EXPLORATION, INC.

(Exact name of registrant as specified in its charter)

 

 

 

     
Nevada   84-1018684

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

 

5215 W. Laurel Street, Tampa, Florida 33607

(Address of principal executive offices) (Zip code)

(813) 876-1776

(Registrant’s telephone number, including area code)

 

(Former name, former address and former fiscal year, if changed since last report)

 

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    YES       NO   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for shorter period that the registrant was required to submit and post such files).    Yes   ¨     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check one).

 

             
Large accelerated filer:   ¨    Accelerated filer:   x
       
Non-accelerated filer:   ¨   (Do not check if a smaller Reporting company)    Smaller reporting company:   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act):    Yes   ¨     No   x

The number of outstanding shares of the registrant’s Common Stock, $.0001 par value, as of July 18, 2012 was 73,910,398.

 

 

 

 


LOGO

 

             
          Page No.  

Part I:

  

Financial Information

        
     

Item 1.

  

Financial Statements:

        
     
    

Consolidated Balance Sheets

     3   
     
    

Consolidated Statements of Operations

     4   
     
    

Consolidated Statements of Cash Flows

     5   
     
    

Notes to the Consolidated Financial Statements

     6 – 24   
     

Item 2.

  

Management’s Discussion and Analysis of Financial Condition and Results of Operations

     25 – 30   
     

Item 3.

  

Quantitative and Qualitative Disclosures About Market Risk

     31   
     

Item 4.

  

Controls and Procedures

     31   
     

Part II:

  

Other Information

        
     

Item 1.

  

Legal Proceedings

     31   
     

Item 1A.

  

Risk Factors

     31   
     

Item 2.

  

Unregistered Sales of Equity Securities and Use of Proceeds

     32   
     

Item 3.

  

Defaults Upon Senior Securities

     32   
     

Item 4.

  

[Removed and Reserved]

     32   
     

Item 5.

  

Other Information

     32   
     

Item 6.

  

Exhibits

     32   
   

Signatures

     33   

 

2

 


PART I: FINANCIAL INFORMATION

ITEM 1. FINANCIAL STATEMENTS

ODYSSEY MARINE EXPLORATION, INC. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

 

                 
     (Unaudited) 
June  30, 
2012
    December 31, 
2011
 

ASSETS

                

CURRENT ASSETS

                

Cash and cash equivalents

   $ 3,535,720      $ 7,971,794   

Restricted cash

     197,428        212,788   

Accounts receivable, net

     248,920        500,626   

Inventory

     543,251        557,151   

Other current assets

     4,249,735        779,478   
    

 

 

   

 

 

 

Total current assets

     8,775,054        10,021,837   
    

 

 

   

 

 

 

PROPERTY AND EQUIPMENT

                

Equipment and office fixtures

     16,455,203        15,450,467   

Building and land

     4,703,359        4,703,359   

Accumulated depreciation

     (14,267,505     (13,620,956
    

 

 

   

 

 

 

Total property and equipment

     6,891,057        6,532,870   
    

 

 

   

 

 

 

NON-CURRENT ASSETS

                

Inventory

     5,422,822        5,501,808   

Restricted cash

     172,596        251,791   

Investment in unconsolidated entity

     —          —     

Other non-current assets

     1,108,454        1,106,097   
    

 

 

   

 

 

 

Total other assets

     6,703,872        6,859,696   
    

 

 

   

 

 

 

Total assets

   $ 22,369,983      $ 23,414,403   
    

 

 

   

 

 

 

LIABILITIES AND STOCKHOLDERS’ DEFICIT

                

CURRENT LIABILITIES

                

Accounts payable

   $ 5,466,640      $ 1,105,902   

Accrued expenses and other

     1,732,861        2,061,974   

Deferred revenue

     3,545,140        3,545,140   

Derivative liabilities

     12,077,965        7,333,293   

Mortgage and loans payable

     12,864,559        4,802,930   
    

 

 

   

 

 

 

Total current liabilities

     35,687,165        18,849,239   
    

 

 

   

 

 

 

LONG-TERM LIABILITIES

                

Mortgage and loans payable

     7,579,686        5,690,125   

Deferred income from revenue participation rights

     8,400,000        8,400,000   
    

 

 

   

 

 

 

Total long-term liabilities

     15,979,686        14,090,125   
    

 

 

   

 

 

 

Total liabilities

     51,666,851        32,939,364   
    

 

 

   

 

 

 

Commitments and contingencies (Note H)

                
     

Redeemable Series G Convertible Preferred stock

     250,000        250,000   
     

STOCKHOLDERS’ DEFICIT

                

Preferred stock - $.0001 par value; 9,361,199 shares authorized; none outstanding

     —          —     

Preferred stock series D convertible - $.0001 par value; 448,800 shares authorized, respectively; 206,400 issued and outstanding, respectively

     21        21   

Common stock – $.0001 par value; 150,000,000 shares authorized; 73,237,659 and 73,095,384 issued and outstanding, respectively

     7,322        7,309   

Additional paid-in capital

     138,546,690        137,236,462   

Accumulated deficit

     (168,100,901     (147,018,753
    

 

 

   

 

 

 

Total stockholders’ deficit

     (29,546,868     (9,774,961
    

 

 

   

 

 

 

Total liabilities and stockholders’ deficit

   $ 22,369,983      $ 23,414,403   
    

 

 

   

 

 

 

The accompanying notes are an integral part of these financial statements.

 

3

 


ODYSSEY MARINE EXPLORATION, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF OPERATIONS - Unaudited

 

                                 
     Three Months Ended     Six Months Ended  
     June 30, 
2012
    June 30, 
2011
    June 30, 
2012
    June 30, 
2011
 

REVENUE

                                

Artifact sales and other

   $ 133,259      $ 105,024      $ 187,407      $ 453,914   

Exhibit

     75,000        28,409        100,000        71,402   

Expedition

     1,218,372        6,611,136        4,038,977        8,313,355   
    

 

 

   

 

 

   

 

 

   

 

 

 

Total revenue

     1,426,631        6,744,569        4,326,384        8,838,671   
    

 

 

   

 

 

   

 

 

   

 

 

 

OPERATING EXPENSES

                                

Cost of sales – artifacts and other

     89,892        52,561        124,081        226,137   

Marketing, general and administrative

     2,483,000        2,434,090        4,839,918        4,604,169   

Operations and research

     9,554,692        5,186,884        14,706,398        8,719,594   
    

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     12,127,584        7,673,535        19,670,397        13,549,900   
         

INCOME (LOSS) FROM OPERATIONS

     (10,700,953     (928,966     (15,344,013     (4,711,229
         

OTHER INCOME (EXPENSE)

                                

Interest income

     698        149        23,138        535   

Interest expense

     (1,679,871     (105,710     (2,665,200     (203,611

Change in derivative liabilities fair value

     (3,212,901     704,562        (3,089,832     (584,622

(Loss) from unconsolidated entity

     —          (1,595,000     —          (1,595,000

Other

     2,677        (5,588     3,759        (10,661
    

 

 

   

 

 

   

 

 

   

 

 

 

Total other income (expense)

     (4,889,397     (1,001,587     (5,728,135     (2,393,359
    

 

 

   

 

 

   

 

 

   

 

 

 

LOSS BEFORE INCOME TAXES

     (15,590,350     (1,930,553     (21,072,148     (7,104,588

Income tax benefit (provision)

     —          —          —          —     
    

 

 

   

 

 

   

 

 

   

 

 

 

NET LOSS

   $ (15,590,350   $ (1,930,553   $ (21,072,148   $ (7,104,588
    

 

 

   

 

 

   

 

 

   

 

 

 

NET LOSS PER SHARE

                                

Basic and diluted (See NOTE B)

   $ (.21   $ (.07   $ (.29   $ (.15
    

 

 

   

 

 

   

 

 

   

 

 

 

Weighted average number of common shares outstanding

                                

Basic and diluted

     73,234,692        67,873,487        73,199,914        67,512,776   
    

 

 

   

 

 

   

 

 

   

 

 

 

The accompanying notes are an integral part of these financial statements.

 

4

 


ODYSSEY MARINE EXPLORATION, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS - Unaudited

 

                 
     Six Months Ended  
     June  30, 
2012
    June  30, 
2011
 

CASH FLOWS FROM OPERATING ACTIVITIES:

                

Net loss

   $ (21,072,148   $ (7,104,588

Adjustments to reconcile net loss to net cash (used) by operating activities:

                

Depreciation and amortization

     798,179        1,017,142   

Loan fee amortization

     212,006        —     

Change in derivatives liabilities fair value

     3,089,832        584,622   

Note payable interest accretion

     1,755,343        —     

Loss in unconsolidated entity

     —          1,595,000   

Investment in unconsolidated entity

     —          (1,595,000

Share-based compensation

     918,088        898,314   

(Increase) decrease in:

                

Restricted cash

     94,555        449,678   

Accounts receivable

     251,706        (655,086

Inventory

     92,886        224,166   

Other assets

     (3,285,464     (257,137

Increase (decrease) in:

                

Accounts payable

     4,350,738        (1,180,656

Accrued expenses and other

     (332,603     (1,304,594

Deferred revenue

     —          3,127,010   
    

 

 

   

 

 

 

NET CASH (USED) PROVIDED BY OPERATING ACTIVITIES

     (13,126,882     (4,201,129
    

 

 

   

 

 

 

CASH FLOWS FROM INVESTING ACTIVITIES:

                

Purchase of property and equipment

     (597,024     (401,337
    

 

 

   

 

 

 

NET CASH (USED) BY INVESTING ACTIVITIES

     (597,024     (401,337
    

 

 

   

 

 

 

CASH FLOWS FROM FINANCING ACTIVITIES:

                

Proceeds from issuance of common stock

     44,625        15,680,077   

Deferred income from revenue participation rights

     —          7,312,500   

Dividends

     (10,000     (240,000

Redemption of Series G Preferred

     —          (757,500

Broker commissions and fees on capital raises

     (400,000     —     

Proceeds from issuance loan payable

     9,994,483        —     

Repayment of mortgage and loans payable

     (341,276     (99,488
    

 

 

   

 

 

 

NET CASH PROVIDED BY FINANCING ACTIVITIES

     9,287,832        21,895,589   
    

 

 

   

 

 

 

NET INCREASE (DECREASE) INCREASE IN CASH

     (4,436,074     17,293,123   
     

CASH AT BEGINNING OF PERIOD

     7,971,794        235,762   
    

 

 

   

 

 

 

CASH AT END OF PERIOD

   $ 3,535,720      $ 17,528,885   
    

 

 

   

 

 

 

SUPPLEMENTARY INFORMATION:

                

Interest paid

   $ 701,106      $ 204,174   

Income taxes paid

   $ —        $ —     
     

NON-CASH TRANSACTIONS:

                

Accrued compensation paid by equity instruments

   $ 347,528      $ 229,564   

Equipment purchased with financing

   $ 588,499      $ —     

Acquired non-controlling interest of Dorado Resources, Ltd. with the assumption of a subscription payable of an equal amount (See NOTE F)

   $ —        $ —     

Offset account receivable with subscription payable (See NOTE F)

   $ —        $ 1,998,800   

Series G Preferred Stock dividend declaration

   $ 10,000      $ —     

Series G Preferred Stock accretion

   $ —        $ 2,217,409   

The accompanying notes are an integral part of these financial statements.

 

5

 


ODYSSEY MARINE EXPLORATION, INC. AND SUBSIDIARIES

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS

NOTE A – BASIS OF PRESENTATION

The accompanying unaudited consolidated financial statements of Odyssey Marine Exploration, Inc. and subsidiaries (the “Company,” “Odyssey,” “us,” “we” or “our”) have been prepared in accordance with the rules and regulations of the Securities and Exchange Commission and the instructions to Form 10-Q and, therefore, do not include all information and footnotes normally included in financial statements prepared in accordance with generally accepted accounting principles. These interim consolidated financial statements should be read in conjunction with the consolidated financial statements and notes included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2011.

In the opinion of management, these financial statements reflect all adjustments, including normal recurring adjustments, necessary for a fair presentation of the financial position as of June 30, 2012, and the results of operations and cash flows for the interim periods presented. Operating results for the six-month period ended June 30, 2012, are not necessarily indicative of the results that may be expected for the full year.

NOTE B – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

This summary of significant accounting policies of the Company is presented to assist in understanding our financial statements. The financial statements and notes are representations of the Company’s management, who are responsible for their integrity and objectivity, and have prepared them in accordance with our customary accounting practices.

Principles of Consolidation

The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries, Odyssey Marine Services, Inc., OVH, Inc., Odyssey Retriever, Inc. and Odyssey Marine Entertainment, Inc. All significant inter-company transactions and balances have been eliminated. Equity investments in which we exercise significant influence but do not control and are not the primary beneficiary are accounted for using the equity method. All significant inter-company and intra-company transactions and balances have been eliminated.

Use of Estimates

Management used estimates and assumptions in preparing these financial statements in accordance with generally accepted accounting principles. Those estimates and assumptions affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities, and the reported revenues and expenses. Actual results could vary from the estimates that were used.

Revenue Recognition and Accounts Receivable

Revenue from product sales is recognized at the point of sale when legal title transfers. Legal title transfers when product is shipped or is available for shipment to customers. In accordance with Topic A.1.in SAB 13: Revenue Recognition, exhibit and expedition charter revenue is recognized ratably when realized and earned as time passes throughout the contract period as defined by the terms of the agreement. Bad debts are recorded as identified and, from time to time, a specific reserve allowance will be established when required. A return allowance is established for sales which have a right of return. Accounts receivable is stated net of any recorded allowances.

Cash, Cash Equivalents and Restricted Cash

Cash, cash equivalents and restricted cash include cash on hand and cash in banks. We also consider all highly liquid investments with a maturity of three months or less when purchased to be cash equivalents.

Inventory

Our inventory consists of artifacts recovered from the SS Republic shipwreck, general branded merchandise and related packaging material. Inventoried costs of recovered artifacts include the costs of recovery, conservation and administrative costs to obtain legal title to the artifacts. Administrative costs are generally legal fees or insurance settlements required in order to obtain clean title. The capitalized recovery costs include direct costs such as vessel and related equipment operations and maintenance, crew and technical labor, fuel, provisions, supplies, port fees and depreciation. Conservation costs include fees paid to conservators for cleaning and preserving the artifacts. We continually monitor the recorded aggregate costs of the artifacts in inventory to ensure these costs do not exceed the net realizable value. Historical sales, publications or available public market data are used to assess market value.

 

6

 


Packaging materials and merchandise are recorded at average cost. We record our inventory at the lower of cost or market.

Long-Lived Assets

Our policy is to recognize impairment losses relating to long-lived assets in accordance with the Accounting Standards Codification (“ASC”) topic for Property, Plant and Equipment. Decisions are based on several factors, including, but not limited to, management’s plans for future operations, recent operating results and projected cash flows.

Comprehensive Income

Securities with a maturity greater than three months from purchase date are deemed available-for-sale and carried at fair value. Unrealized gains and losses on these securities are excluded from earnings and reported as a separate component of stockholders’ equity. At June 30, 2012, we did not own securities with a maturity greater than three months.

Property and Equipment and Depreciation

Property and equipment is stated at historical cost. Depreciation is provided using the straight-line method at rates based on the assets’ estimated useful lives, which are normally between three and ten years. Leasehold improvements are amortized over their estimated useful lives or lease term, if shorter. Major overhaul items (such as engines or generators) that enhance or extend the useful life of vessel-related assets qualify to be capitalized and depreciated over the useful life or remaining life of that asset, whichever is shorter. Certain major repair items required by industry standards to ensure a vessel’s seaworthiness also qualify to be capitalized and depreciated over the period of time until the next scheduled planned major maintenance for that item. All other repairs and maintenance are accounted for under the direct-expensing method and are expensed when incurred.

Earnings Per Share

Basic earnings per share (EPS) is computed by dividing income available to common stockholders by the weighted-average number of common shares outstanding for the period. In periods when the Company generates income, the Company calculates basic earnings per share (“EPS”) using the two-class method pursuant to ASC 260 Earnings Per Share. The two-class method is required effective with the issuance of the Senior Convertible Note disclosed in Note I because the note qualifies as participating security, giving the holder the right to receive dividends should dividends be declared on common stock. Under the two-class method, earnings for the period are allocated on a pro-rata basis to the common stockholders and to the holders of Convertible Notes based on the weighted average number of common shares outstanding and number of shares that could be converted. The Company does not use the two-class method in periods when it generates a loss as the holders of the Convertible Notes do not participate in losses.

Diluted EPS reflects the potential dilution that would occur if dilutive securities and other contracts to issue Common Stock were exercised or converted into Common Stock or resulted in the issuance of Common Stock that then shared in our earnings. We use the treasury stock method to compute potential common shares from stock options and warrants and the if-converted method to compute potential common shares from Preferred Stock, Convertible Notes or other convertible securities. As it relates solely to the Senior Convertible Note, for diluted earnings per share, the Company uses the more dilutive of the if-converted method or two-class method. When a net loss occurs, potential common shares have an anti-dilutive effect on earnings per share and such shares are excluded from the Diluted EPS calculation.

At June 30, 2012 and 2011, weighted average common shares outstanding year-to-date were 73,199,914 and 67,512,776, respectively. For the periods ended June 30, 2012 and 2011, in which net losses occurred, all potential common shares were excluded from diluted EPS because the effect of including such shares would be anti-dilutive.

The potential common shares in the following table represent potential common shares calculated using the treasury stock method from outstanding options, stock awards and warrants that were excluded from the calculation of diluted EPS:

 

                                 
     Three Months Ended      Six Months Ended  
     June 30, 
2012
     June 30, 
2011
     June 30, 
2012
     June 30, 
2011
 

Average market price during the period

   $ 3.05       $ 3.51       $ 3.11       $ 3.29   
         

In the money potential common shares from options excluded

     213,311        249,392        239,119        202,867  

In the money potential common shares from warrants excluded

     1,045,869        1,553,474        1,119,803        1,330,160  

 

7

 


Potential common shares from out-of-the-money options and warrants were also excluded from the computation of diluted EPS because calculation of the associated potential common shares has an anti-dilutive effect on EPS. The following table lists options and warrants that were excluded from diluted EPS:

 

                                 
     Three Months Ended      Six Months Ended  
     June 30, 
2012
     June 30, 
2011
     June 30, 
2012
     June 30, 
2011
 

Out of the money options and warrants excluded:

                                   

Stock options with an exercise price of $3.30 per share

     100,000         —           100,000         —     

Stock options with an exercise price of $3.50 per share

     245,000        —           245,000        875,000  

Stock options with an exercise price of $3.51 per share

     984,670        984,670        984,670        984,670  

Stock options with an exercise price of $3.53 per share

     211,900        211,900        211,900        211,900  

Stock options with an exercise price of $4.00 per share

     52,500        52,500        52,500        52,500  

Stock options with an exercise price of $5.00 per share

     300,000         650,000         300,000         650,000   

Stock options with an exercise price of $7.00 per share

     100,000         100,000         100,000         100,000   

Warrants with an exercise price of $3.60 per share

     1,562,500         —           1,562,500         —     

Warrants with an exercise price of $5.25 per share

     100,000         100,000         100,000         100,000   
    

 

 

    

 

 

    

 

 

    

 

 

 

Total anti-dilutive warrants and options excluded from EPS

     3,656,570         2,099,070         3,656,570         2,974,070   
    

 

 

    

 

 

    

 

 

    

 

 

 

Potential common shares from outstanding Convertible Preferred Stock calculated on an if-converted basis having an anti-dilutive effect on diluted earnings per share were excluded from potential common shares as follows:

 

                                 
     Three Months Ended      Six Months Ended  
     June 30, 
2012
     June 30, 
2011
     June 30, 
2012
     June 30, 
2011
 

Potential common shares from Convertible Preferred Stock excluded from EPS

     346,400         3,146,400         346,400         3,146,400   
    

 

 

    

 

 

    

 

 

    

 

 

 

The weighted average equivalent common shares relating to our unvested restricted stock awards that were excluded from potential common shares in the earning per share calculation due to having an anti-dilutive effect are:

 

                                 
     Three Months Ended      Six Months Ended  
     June 30, 
2012
     June 30, 
2011
     June 30, 
2012
     June 30, 
2011
 

Potential common shares from unvested restricted stock awards excluded from EPS

     467,164         495,548         463,234         416,871   
    

 

 

    

 

 

    

 

 

    

 

 

 

The following is a reconciliation of the numerators and denominators used in computing basic and diluted net income per share:

 

                                 
     Three Months Ended     Six Months Ended  
     June 30, 
2012
    June 30, 
2011
    June 30, 
2012
    June 30, 
2011
 

Net loss

   $ (15,590,350   $ (1,930,553   $ (21,072,148   $ (7,104,588

Accretion of Series G Preferred Stock

     —          (1,564,578     —          (1,987,977

Fair market value of warrants issued to Series G Preferred Stock stockholders

     —          (906,150     —          (906,150

Cumulative dividends on Series G Preferred Stock

     (5,000     (105,000     (15,000     (238,479
    

 

 

   

 

 

   

 

 

   

 

 

 

Numerator, basic and diluted net income (loss) available to stockholders

   $ (15,595,350   $ (4,506,281   $ (21,087,194   $ (10,237,194
    

 

 

   

 

 

   

 

 

   

 

 

 

Denominator:

                                

Shares used in computation – basic:

                                

Weighted average common shares outstanding

     73,234,692        67,873,487        73,199,914        67,512,776   
    

 

 

   

 

 

   

 

 

   

 

 

 

Shares used in computation – diluted:

                                

Weighted average common shares outstanding

     73,234,692        67,873,487        73,199,914        67,512,776   

Dilutive effect of potential common shares outstanding

     —          —          —          —     
    

 

 

   

 

 

   

 

 

   

 

 

 

Shares used in computing diluted net income per share

     73,234,692        67,873,487        73,199,914        67,512,776   
    

 

 

   

 

 

   

 

 

   

 

 

 

Net loss per share – basic

   $ (0.21   $ (0.07   $ (0.29   $ (0.15

Net loss per share – diluted

   $ (0.21   $ (0.07   $ (0.29   $ (0.15

 

8

 


Income Taxes

Income taxes are accounted for using an asset and liability approach that requires the recognition of deferred tax assets and liabilities for the expected future tax consequences attributable to differences between financial statement carrying amounts of existing assets and liabilities and their respective tax bases. A valuation allowance is provided when it is more likely than not that some portion or the entire deferred tax asset will not be realized.

Stock-based Compensation

Our stock-based compensation is recorded in accordance with the guidance in the ASC topic for Stock-Based Compensation (See NOTE J).

Fair Value of Financial Instruments

Financial instruments consist of cash, evidence of ownership in an entity, and contracts that both (i) impose on one entity a contractual obligation to deliver cash or another financial instrument to a second entity, or to exchange other financial instruments on potentially unfavorable terms with the second entity, and (ii) conveys to that second entity a contractual right (a) to receive cash or another financial instrument from the first entity, or (b) to exchange other financial instruments on potentially favorable terms with the first entity. Accordingly, our financial instruments consist of cash and cash equivalents, accounts receivable, accounts payable, accrued liabilities, derivative financial instruments, mortgage and loans payable, and redeemable preferred stock. We carry cash and cash equivalents, accounts payable and accrued liabilities, and mortgage and loans payable at the approximate fair market value, and, accordingly, these estimates are not necessarily indicative of the amounts that we could realize in a current market exchange. We carry derivative financial instruments at fair value as is required under current accounting standards. We carry redeemable preferred stock at historical cost and accrete carrying values to estimated redemption values over the term of the financial instrument.

Derivative financial instruments consist of financial instruments or other contracts that contain a notional amount and one or more underlying variables (e.g., interest rate, security price or other variable), require no initial net investment and permit net settlement. Derivative financial instruments may be free-standing or embedded in other financial instruments. Further, derivative financial instruments are initially, and subsequently, measured at fair value and recorded as liabilities or, in rare instances, assets (See NOTE M for additional information). We generally do not use derivative financial instruments to hedge exposures to cash-flow, market or foreign-currency risks. However, we have entered into certain other financial instruments and contracts, such as our sale and issuance of redeemable preferred stock and freestanding warrants during October 2010 with features that are either (i) not afforded equity classification, (ii) embody risks not clearly and closely related to host contracts, or (iii) may be net-cash settled by the counterparty. As required by ASC 815 – Derivatives and Hedging, these instruments are required to be carried as derivative liabilities, at fair value, in our financial statements with changes in fair value reflected in our income.

Fair Value Hierarchy

The three levels of inputs that may be used to measure fair value are as follows:

Level 1.  Quoted prices in active markets for identical assets or liabilities.

Level 2.  Observable inputs other than Level 1 prices, such as quoted prices for similar assets or liabilities, quoted prices in markets with insufficient volume or infrequent transactions (less active markets), or model-derived valuations in which all significant inputs are observable or can be derived principally from or corroborated with observable market data for substantially the full term of the assets or liabilities. Level 2 inputs also include non-binding market consensus prices that can be corroborated with observable market data, as well as quoted prices that were adjusted for security-specific restrictions.

Level 3.  Unobservable inputs to the valuation methodology are significant to the measurement of the fair value of assets or liabilities. Level 3 inputs also include non-binding market consensus prices or non-binding broker quotes that we were unable to corroborate with observable market data.

 

9

 


Redeemable Preferred Stock

Redeemable preferred stock (and, if ever, any other redeemable financial instrument we may enter into) is initially evaluated for possible classification as a liability in instances where redemption is certain to occur pursuant to ASC 480 – Distinguishing Liabilities from Equity. Redeemable preferred stock classified as a liability is recorded and carried at fair value. Redeemable preferred stock that does not, in its entirety, require liability classification is evaluated for embedded features that may require bifurcation and separate classification as derivative liabilities. In all instances, the classification of the redeemable preferred stock host contract that does not require liability classification is evaluated for equity classification or mezzanine classification based upon the nature of the redemption features. Generally, mandatory redemption requirements or any feature that could require cash redemption for matters not within our control, irrespective of probability of the event occurring, requires classification outside of stockholders’ equity. Redeemable preferred stock that is recorded in the mezzanine section is accreted to its redemption value through charges to stockholders’ equity when redemption is probable using the effective interest method. See NOTE O for further disclosures about our redeemable preferred stock.

Subsequent Events

We have evaluated subsequent events for recognition or disclosure through the date this Form 10-Q is filed with the Securities and Exchange Commission.

NOTE C – RESTRICTED CASH

As required by the mortgage loan entered into with Fifth Third Bank (the “Bank”) on July 11, 2008, $500,000 was deposited into an additional interest-bearing account from which principal and interest payments are made. On each anniversary of the mortgage, we are to deposit into the account an amount sufficient to ensure a balance of $500,000 for principal and interest payments for the subsequent year of the mortgage. The balance in this restricted cash account is held as additional collateral by the Bank and is not available for operations. Any funds remaining in this account at the end of the mortgage term will be returned to the Company. The balance in this account at June 30, 2012, was $370,024.

NOTE D – ACCOUNTS RECEIVABLE

The accounts receivable balances at June 30, 2012 and December 31, 2011 were $248,920 and $500,626, respectively, which are net of reserves for doubtful accounts of $4,820,593 and $6,390,593, respectively. As described in NOTE F, Neptune Minerals, Inc. (“NMI”) completed a 2011 share exchange with DOR shareholders which resulted in an executed assignment and assumption agreement, whereby NMI assumed $8,227,675 of the outstanding debt of DOR owed to us. The $4,820,593 reserve at June 30, 2012 is for the remaining Neptune Minerals, Inc. (“NMI”) accounts receivable assumed from DOR. The $6,390,593 reserve at December 31, 2011 was comprised of the $1,570,000 “Shantaram ” and $4,820,593 for the DOR receivable that was assumed by NMI in 2011 and discussed in NOTE F.

At December 31, 2011, we had a reserve for the “Shantaram ” receivable of $1,570,000 owed according to the terms of sale of research for the “Shantaram ” project. During the three-month period ending March 31, 2012, management offset the amount due against its reserve. According to our agreement, we have the right to receive additional participation amounts, if any, up to approximately 11% from the first £100 million and approximately 7% thereafter from recovery distributions after recovery costs.

NOTE E – INVENTORY

Our inventory consisted of the following:

 

                 
     June 30, 
2012
    December 31,
2011
 

Artifacts

   $ 5,815,522      $ 5,879,137   

Packaging

     143,189        159,160   

Merchandise

     387,955        412,865   

Merchandise reserve

     (380,593     (392,203
    

 

 

   

 

 

 

Total inventory

   $ 5,966,073      $ 6,058,959   
    

 

 

   

 

 

 

Of these amounts, $5,422,822 and $5,501,808 are classified as non-current as of June 30, 2012 and December 31, 2011, respectively.

 

10

 


NOTE F – INVESTMENTS IN UNCONSOLIDATED ENTITIES

Neptune Minerals, Inc.

During the quarter ended December 31, 2009, we invested $500,000 for a 25% interest (five membership units) in SMM Project, LLC (“SMM”) to pursue opportunities in the exploration of deep-ocean gold and copper deposits. SMM purchased a majority interest in Bluewater Metals Pty, Ltd. (“Bluewater”), an Australian company with licenses for mineral exploration of approximately 150,000 square kilometers of ocean floor in territorial waters controlled by four different countries in the South Pacific. In April 2010, SMM was acquired by Dorado Ocean Resources, Ltd. (“DOR”) through a share exchange. At that time, DOR also acquired the remaining interest in Bluewater. We were issued 450 DOR shares in exchange for our surrendered units in SMM. We also acquired an additional 1,200 shares of DOR valued at $2,000,000 that resulted in a 41.25% ownership of DOR. Ultimately we held a 40.8% ownership of DOR. Under the terms of the Share Subscription Agreement (subscription payable), we had the option to pay for this investment in cash, provide marine services to DOR over a three-year period commencing April 2010 or exercise our contractual right to offset against the $2,000,000 marine services accounts receivable owed to us. During 2011, we exercised our contractual right and offset these two amounts. The focus of DOR was on the exploration and monetization of gold- and copper-rich Seafloor Massive Sulfide (“SMS”) deposits.

During 2011, we were engaged by Neptune Minerals, Inc. (“NMI”) and its affiliates to perform marine services relating to deep-sea mining. The agreements provided for payments in cash and Class B shares of non-voting common stock of NMI. In 2011, we earned 2,066,600 shares of the Class B non-voting common stock from these engagements. During this same period, NMI completed a share exchange with DOR shareholders whereby each one outstanding share of DOR was exchanged for 1,000 shares of NMI Class B non-voting common stock. We received 1,650,000 shares of NMI Class B non-voting common stock for our 1,650 DOR shares pursuant to the share exchange. In connection with this share exchange, NMI executed an assignment and assumption agreement, whereby NMI assumed $8,227,675 of the outstanding debt DOR owed to us. Additionally in 2011, we executed a debt conversion agreement with NMI, whereby we converted $2,500,000 of the debt owed to us for 2,500,000 shares of NMI Class B non-voting common stock. At June 30, 2012, we have a net share position in NMI of 6,216,600 shares, which represents an approximate 31% ownership before any further dilution of the NMI stock.

At June 30, 2012, there is a known loss of $959,000, which is as of December 31, 2011, of DOR (NMI) losses allocable to us that we have not recognized in our income statement because these losses exceeded our investment. Based on the NMI and DOR transaction described above, we believe it is appropriate to allocate these losses to any incremental investment that may be recognized on our balance sheet in NMI. NMI has been unable to provide their financial statements for periods subsequent to December 31, 2011 so we are unable to accurately quantify our share of their loss for the respective periods. With NMI being involved in the capital intensive deep-sea mining and exploration industry as well as not having revenue, their cumulative losses for each of the periods may be several million dollars.

Chatham Rock Phosphate, Ltd.

During the period ended June 30, 2012, we performed deep-sea mining exploratory services for Chatham Rock Phosphate, Ltd. (“CRP”) valued at $1,680,000. As payment for these services, CRP issued 9,320,348 of ordinary shares to us which represents a 12.2% equity stake in CRP. With CRP being on the New Zealand Stock Exchange and guidance per ASC 320: Debt and Equity Securities regarding readily determinable fair value, we believe it is appropriate to not recognize this amount as an asset nor as revenue.

NOTE G – INCOME TAXES

As of June 30, 2012, the Company had consolidated income tax net operating loss (“NOL”) carryforwards for federal tax purposes of approximately $138 million. The NOL will expire in various years beginning in 2013 and ending through the year 2032. From 2013 through 2023, approximately $8 million of the NOL will expire, from 2024 through 2028, approximately $80.5 million of the NOL will expire and from 2029 through 2032, approximately $50 million of the NOL will expire.

Deferred income taxes reflect the net tax effects of the temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Company’s deferred tax assets and liabilities are as follows:

 

         

Deferred tax assets:

        

Net operating loss and tax credit carryforwards

   $ 49,796,627   

Capital loss carryforward

     386,151   

Accrued expenses

     62,829   

Reserve for accounts receivable

     2,094,123   

Reserve for inventory

     133,584   

Start-up costs

     107,422   

Excess of book over tax depreciation

     1,158,737   

Stock option and restricted stock award expense

     1,454,572   

Investment in unconsolidated entity

     3,707,636   

Less: valuation allowance

     (57,719,607
    

 

 

 
     $ 1,182,074   
    

 

 

 

Deferred tax liability:

        

Property and equipment basis

   $ 69,484   

Prepaid expenses

     1,112,590   
    

 

 

 
     $ 1,182,074   
    

 

 

 

Net deferred tax asset

   $ —     
    

 

 

 

 

11

 


As reflected above, we have recorded a net deferred tax asset of $0 at June 30, 2012. As required by the Accounting for Income Taxes topic in the ASC, we have evaluated whether it is more likely than not that the deferred tax assets will be realized. Based on the available evidence, we have concluded that it is more likely than not that those assets would not be realized without the recovery and rights of ownership or salvage rights of high-value shipwrecks and thus a valuation allowance has been recorded as of June 30, 2012.

The change in the valuation allowance is as follows:

 

         

June 30, 2012

   $ 57,719,607   

December 31, 2011

     52,515,797   
    

 

 

 

Change in valuation allowance

   $ 5,203,810   
    

 

 

 

Income taxes for the six-month periods ended June 30, 2012 and 2011 differ from the amounts computed by applying the effective federal income tax rate of 34.0% to income (loss) before income taxes as a result of the following:

 

                 
     June 30, 
2012
    June 30, 
2011
 

Expected (benefit)

   $ (7,164,530   $ (2,415,560

State income taxes net of federal benefits

     (191,873     (138,430

Nondeductible expense

     8,050        7,920   

Stock options and restricted stock awards

     240,265        188,855   

Derivatives

     1,667,465        198,771   

Change in valuation allowance

     5,203,811        1,752,527   

Effects of:

                

Change in apportionment estimate

     —          406,193   

Change in net operating loss estimate

     610,863        —     

Change in capital loss carryover estimate

     (374,051     —     

Other, net

     —          (276
    

 

 

   

 

 

 
     $ —        $ —     
    

 

 

   

 

 

 

During the six-month periods ended June 30, 2012 and 2011 the Company recognized certain tax benefits and (liabilities), prior to any valuation allowances, related to stock option plans in the amounts of $248,038 and $0, respectively. If we did not have a full valuation allowance, such benefits would be recorded as an increase to the deferred tax asset and increase in additional paid in capital.

We have not recognized a material adjustment in the liability for unrecognized tax benefits and have not recorded any provisions for accrued interest and penalties related to uncertain tax positions.

The earliest tax year still subject to examination by a major taxing jurisdiction is 2008.

NOTE H – COMMITMENTS AND CONTINGENCIES

Legal Proceedings

On April 16, 2012 Spain filed a motion with the district court for an award of attorney’s fees and costs related to the “ Black Swan ” case. We believe there is no legal basis for such an award in this case and that an unfavorable outcome is not likely.

The Company may be subject to a variety of other claims and suits that arise from time to time in the ordinary course of business. Management is currently not aware of any claims or suits that will have a material adverse impact on its financial position or its results of operations.

 

12

 


Trends and Uncertainties

Our 2012 business plan contains assumptions which include that several of our planned projects are funded through project debt-type financings, syndications or other partnership opportunities. The business plan expenses include a 90-day charter agreement which we executed with a company to provide a ship and equipment to conduct recovery operations on the Gairsoppa and Mantola projects. We have recently renewed our term loan with Fifth Third Bank which increased our existing term loan from $3 million to $5 million through July 2013. We amended our senior convertible note and received an additional $8 million in May 2012. We are also permitted under the terms of our senior convertible note agreement to raise additional project indebtedness up to $15 million. In July we executed an agreement with Fifth Third Bank which provided $10 million of project financing collateralized with a portion of the silver from the project. We will also be reimbursed from silver sale proceeds for the costs of the project to-date which are now estimated to be approximately $13 million. We also intend to discuss additional finance opportunities with Fifth Third Bank. We expect to receive cash from silver proceeds beginning in the third and fourth quarter 2012. Based upon our current expectations, we believe our cash position will be sufficient to fund operating cash flows throughout the rest of 2012 taking into account our beginning cash balance, current cash flow expectations and revenues from multiple sources, including projected sales, syndicated projects and other potential financing arrangements. We have experienced several years of net losses resulting in a stockholders’ deficit. Our capacity to generate net income in future periods is dependent upon our success in recovering and monetizing high-value shipwrecks, realizing capital gains from our investments in other business opportunities or to generate income from mineral exploration activities, charters or other projects. However, it is likely that we could monetize a significant amount of cash from our existing shipwreck projects in 2012 which could fund our operations for future periods. If cash flow is not sufficient to meet our projected business plan requirements, we will be required to raise additional capital or curtail expenses. While we have been successful in raising the necessary funds in the past, there can be no assurance that we can continue to do so in the future.

NOTE I – MORTGAGE AND LOANS PAYABLE

The Company’s consolidated debt consisted of the following at June 30, 2012 and December 31, 2011:

 

                 
     June 30, 
2012
     December 31, 
2011
 

Term loan

   $ 5,000,000       $ 3,000,000   

Face value $10,000,000, 8% Convertible Senior Note Payable

     6,762,136         5,316,328   

Face value $8,000,000, 9% Convertible Senior Note Payable

     6,649,087         —     

Mortgage payable

     2,033,022         2,176,727   
    

 

 

    

 

 

 
     $ 20,444,245       $ 10,493,055   
    

 

 

    

 

 

 

Term Loan

On May 4, 2011, we amended our revolving credit facility with Fifth Third Bank (the “Bank”) to replace it with a $5 million term loan maturing on April 23, 2012. A principal payment of $2 million was due and paid prior to August 1, 2011, and the remainder is due by maturity. The facility bears floating interest at the one-month LIBOR rate according to the Wall Street Journal plus 500 basis points. Any prepayments made in full or in part are without premium or penalty. A commitment fee of $250,000 was paid at closing. Restricted cash amounts are not required to be kept on deposit. As a condition to the loan renewal, we were required to amend the Loan Agreement (mortgage payable) for our corporate real estate facility, which is due to mature on July 11, 2013, whereby we were required to pay additional principal to meet an 80% loan-to-value (LTV) based upon an independent real estate appraisal. All additional principal payments have been made.

On March 30, 2012, the above term loan that was set to mature on April 23, 2012 was amended and increased to $5 million with an expiration date of July 11, 2013. The facility bears floating interest at the one month LIBOR rate according to the Wall Street Journal plus 500 basis points. Any prepayments made in full or in part are without premium or penalty. No restricted cash payments will need to be kept on deposit.

The latest amended term loan is secured by approximately 26,800 numismatic coins recovered from the SS Republic shipwreck, which amount will be reduced over the term by the amount of coins sold by the Company. The coins used as collateral are held by a custodian for the security of the Bank. The borrowing base is equal to forty percent (40%) of the eligible coin inventory valued on a rolling twelve-month wholesale average value. The Company is required to comply with a number of customary covenants. The significant covenants included: maintaining insurance on the inventory; ensuring the collateral is free from encumbrances and without the consent of the Bank, the Company cannot merge or consolidate with or into any other corporation or entity nor can the Company enter into a material debt agreement with a third party without approval.

 

13

 


Mortgage Payable

On July 11, 2008, we entered into a mortgage loan with Fifth Third Bank. Pursuant to the Loan Agreement, we borrowed $2,580,000. The loan bears interest at a variable rate equal to the prime rate plus three-fourths of one percent (0.75%) per annum. The loan matures on July 11, 2013, and requires monthly principal payments in the amount of $10,750 plus accrued interest. This loan is secured by a restricted cash balance (See NOTE C) as well as a first mortgage on our corporate office building. This loan contains customary representations and warranties, affirmative and negative covenants, conditions, and other provisions. As a condition to entering the term loan noted above, we were required to amend this loan whereby we are required to pay additional principal to meet an 80% loan-to-value (LTV) based upon an independent real estate appraisal. All additional principal payments have been made.

During May 2008, we entered into a mortgage loan in the principal amount of $679,000 with The Bank of Tampa to purchase our conservation lab and storage facility. This obligation has a monthly payment of $5,080 with a maturity date of May 14, 2015. Principal and interest payments are payable monthly. Interest is at a fixed annual rate of 6.45%. This debt is secured by the related mortgaged real property. The seller originally carried a second mortgage for $100,000 with interest due monthly and $25,000 of principal due each May commencing in May 2009. As of June 30, 2012, this debt was paid in full. The interest was at a variable rate of 1.0% above the prime interest rate stated by BB&T, formerly Colonial Bank of Tampa.

Senior Convertible Note

Initial Note

During November 2011, we entered into a securities purchase agreement (the “Purchase Agreement”) with one institutional investor pursuant to which we issued and sold a Senior Convertible Note in the original principal amount of $10.0 million (the “Initial Note”) and a warrant (the “Warrant”) to purchase up to 1,302,083 shares of our common stock. Subject to the satisfaction of conditions set forth in the Purchase Agreement, we had the right to require the investor to purchase an additional senior convertible note in the original principal amount of up to $5.0 million on the six-month anniversary of the initial closing date (the “Additional Note” and, collectively “Notes”). Aggregate direct finance costs amounted to $545,000 of which $45,000 related to costs of the lender and, accordingly, were included in the original issue discount on the Initial Note.

The indebtedness evidenced by the Note bears interest at 8.0% percent per year (15% under default conditions, if ever). Interest is compounded monthly and payable quarterly at the beginning of each calendar quarter. The Note is amortized with equal monthly principal installments of $434,783 commencing on July 8, 2012. Prepayment is not allowed. Further, the Note may be converted into our common stock, at the option of the holder, at any time following issuance, with respect to the Initial Note, or at any time following six months after the date of issuance, with respect to the Additional Note. The initial conversion price of the Initial Note was $3.74, subject to adjustment on the six-month anniversary of the initial closing date as follows: The reset conversion price applicable to the Initial Note will be adjusted to the lesser of (a) the then current conversion price and (b) the greater of (i) $1.44 and (ii) 110.0% of the market price of our common stock on the six-month anniversary of the initial closing date (as applicable, the “Conversion Price”). On May 10, 2012 (the six-month anniversary of the initial closing date), the conversion price applicable to the initial note was adjusted to $3.17, which represented 110.0% of the market price of Odyssey’s common stock .The conversion price is also subject to adjustment for stock splits, stock dividends, recapitalizations, and similar transactions. We have agreed to pay each amortization payment in shares of our common stock, if certain conditions are met; provided, that we may, at our option, elect to pay such amortization payments in cash. The conversion rate applicable to any amortization payment that we make in shares of our common stock will be the lower of (a) the Conversion Price and (b) a price equal to 85.0% of the volume-weighted average price of our shares of common stock for a ten-day period immediately prior to the applicable amortization date.

The Note provides for redemption upon the occurrence of an event of default. Default conditions include non-servicing of the debt and certain other credit risk related conditions. Default conditions also include certain equity indexed events including failures to file public information documents, non-conversion or insufficient share authorizations to effect conversion and failure obtain and maintain an effective registration statement covering the underlying common shares. The remedies to the investor for events of default include acceleration of payment at 125% of the remaining face value in certain circumstances. In the event the default redemption is not paid, the investor would have the right to elect conversion of the note at an adjusted conversion price approximating 75% of quoted market prices. A change in control would also result in a redemption requirement at 125% of the face value.

The Notes extend no voting rights to the investors. However, the Notes extend participation rights in dividend payments, if any, made to the holders of the Company’s common or other class of stock, except our Series G Preferred Stock.

Under the terms of the Warrant, the holder is entitled to exercise the Warrant to purchase up to 1,302,083 shares of our common stock at an initial exercise price of $4.32 per share, during the five-year period beginning on the six-month anniversary

 

14

 


of the initial closing date; provided, that 434,027 shares of our common stock issuable upon exercise of the Warrant could not be exercised unless the investor purchased the Additional Note. In accordance with the terms of the warrant agreement, on May 10, 2012, the exercise price applicable to the Warrant was adjusted to$3.60 which was the lesser of (a) the then current exercise price and (b) 125.0% of the market price of our common stock on the six-month anniversary of the initial closing date. The Exercise Price is also subject to adjustment for stock splits, stock dividends, recapitalizations, and similar transactions. We are generally prohibited from issuing shares of common stock upon exercise of the Warrant if such exercise would cause us to breach our obligations under the rules or regulations of the stock market on which the common stock is traded.

In connection with the financing, we entered into a registration rights agreement pursuant to which we agreed to file a registration statement with the Securities and Exchange Commission (with the “SEC”) relating to the offer and sale by the investor of the shares of common stock issuable upon conversion of the Notes and the exercise of the Warrant. Pursuant to the agreement, we are required to file the registration statement within six months of the initial closing date and to use its best efforts for the registration statement to be declared effective 90 days thereafter (or 120 days thereafter if the registration statement is subject to review by the SEC).

Additional Note

On May 10, 2012, we issued a second senior convertible note, referred to as the Additional Note, in the original principal amount of $8.0 million, and the number of shares of Odyssey’s common stock issuable upon exercise of the warrant increased to 1,562,600. The additional note bears interest at 9.0% per year and will mature on the 30-month anniversary of the initial closing date. The additional note will amortize in equal monthly installments commencing on the eighth-month anniversary of the initial note and may be paid in cash or Odyssey common stock. The Additional Note may be converted into Odyssey’s common stock, at the option of the holder, at any time following six months after the date of issuance. Odyssey has a right to redeem the Additional Note. The initial conversion price of the Additional Note is $3.74, subject to reset on the earlier of (x) the date the registration statement registering the offer and sale of the common stock issuable under the notes and the warrants becomes effective and a prospectus contained therein shall be available for the resale by the holder of all of the registrable securities or (y) the six-month anniversary of the additional closing date. The registration statement was declared effective on July 6, 2012 and there was no reset to the conversion price of the Additional Note.

Accounting considerations

We have accounted for the Initial Note, Additional Note and Warrant issued for cash as a financing transaction, wherein the net proceeds that we received were allocated to the financial instruments issued. Prior to making the accounting allocation, we evaluated the Initial Note, Additional Note and the Warrant for proper classification under ASC 480 Distinguishing Liabilities from Equity (“ASC 480”) and ASC 815 Derivatives and Hedging (“ASC 815”).

ASC 815 generally requires the analysis embedded terms and features that have characteristics of derivatives to be evaluated for bifurcation and separate accounting in instances where their economic risks and characteristics are not clearly and closely related to the risks of the host contract. The material embedded derivative features consisted of the conversion option and related conversion reset price protection, the Company’s redemption privilege, and certain redemption rights that were indexed to equity risks. The conversion option and conversion reset price protection, along with the redemption features bearing risks of equity, were not clearly and closely related host debt agreement and required bifurcation. Current accounting principles that are also provided in ASC 815 do not permit an issuer to account separately for individual derivative terms and features that require bifurcation and liability classification. Rather, such terms and features must be and were bundled together and fair valued as a single, compound embedded derivative.

The Warrant has a term of five and one-half years and at inception, had an exercise price of $4.32. The contractual exercise price is subject to adjustment for both traditional recapitalization events as is also subject to reset on the sixth month anniversary of issuance. Although the warrant did not fall within the scope of ASC 480, the warrant required derivative liability accounting because the conversion price reset protection terms are not consistent with the definition for financial instruments indexed to a company’s own stock

Based on the previous conclusions, we allocated the cash proceeds first to the derivative components at their fair values (see NOTE M) with the residual allocated to the host debt contract, as follows:

 

         
     Allocation  

Initial Note

   $ 4,910,862  

Compound embedded derivative

     2,989,537  

Derivative warrants

     2,054,601  
    

 

 

 
     $ 9,955,000  
    

 

 

 

 

15

 


The basis that was subject to allocation included the gross proceeds of $10,000,000, less costs of the investor paid out of proceeds that amounted to $45,000. We also allocated the direct financing costs of $500,000 to the note payable and the derivative components based upon the relative fair values of these financial instruments. As a result of this allocation, $246,653 was recorded in deferred costs and $253,347 was recorded as expense.

Allocation of the cash proceeds related to the Additional Financing was as follows:

 

         
     Allocation  

Additional Note

   $ 6,339,642   

Compound embedded derivative

     1,291,298   

Derivative warrants

     363,542   
    

 

 

 
     $ 7,994,482   
    

 

 

 

The basis that was subject to allocation included the gross proceeds of $8,000,000, less costs of the investor paid out of proceeds that amounted to $5,518. We also allocated the direct financing costs of $400,000 to the note payable and the derivative components based upon the relative fair values of these financial instruments. As a result of this allocation, $317,201 was recorded in deferred costs and $82,799 was recorded as expense.

The financing basis allocated to the notes payable and the deferred asset arising from direct finance costs are subject to amortization with periodic charges to interest expense using the effective interest method. Amortization of these components included in interest expense during the three and six months ended June 30, 2012 amounted to $1,257,985 and $1,967,340, respectively. The derivative components are subject to re-measurement to fair value at the end of each reporting period with the change reflected in income. See Note M for information about our derivatives.

NOTE J – STOCKHOLDERS’ DEFICIT

Common Stock

During June 2011, we completed a public offering of 5,520,000 shares of our common stock at $3.05 per share, before underwriting discounts and commissions. This offering was conducted pursuant to an effective shelf registration statement, which is on file with the Securities and Exchange Commission.

During the three-month period ended June 30, 2011, we issued 46,000 shares of common stock to two accredited investors upon exercise of 46,000 outstanding warrants.

During our annual meeting of stockholders on June 1, 2011, an amendment to our Articles of Incorporation to increase the number of authorized shares of common stock from 100,000,000 to 150,000,000 was approved by the stockholders.

On May 6, 2010, we issued 1,300,000 shares of common stock to one institutional investor upon conversion of 13 outstanding shares of our Series E Convertible Preferred Stock. This conversion was completed in accordance with the original terms of the Series E Convertible Preferred Stock.

On April 20, 2010, we issued 600,000 shares of common stock to one institutional investor upon conversion of 600,000 outstanding shares of our Series D Convertible Preferred Stock. This conversion was completed in accordance with the original terms of the Series D Convertible Preferred Stock.

During the three-month period ended March 31, 2011, we issued 56,000 shares of common stock to two accredited investors upon exercise of 56,000 outstanding warrants.

Stock-Based Compensation

We have two stock incentive plans, the 1997 Stock Incentive Plan and the 2005 Stock Incentive Plan (“Plan”). The 1997 Stock Incentive Plan expired on August 17, 2007. As of that date, options cannot be granted from that plan but any granted and unexercised options will continue to exist until exercised or they expire. The Plan provides for the grant of incentive stock options, non-qualified stock options, restricted stock awards, restricted stock units and stock appreciation rights. We initially reserved 2,500,000 of our authorized but unissued shares of common stock for issuance under the Plan, and, at the time the Plan was adopted, not more than 500,000 of these shares could be used for restricted stock awards and restricted stock units. On January 16, 2008, the Board of Directors approved amendments to the Plan to add 2,500,000 shares of common stock to the Plan, to allow any number of shares to be used for restricted stock awards, to clarify certain other provisions in the Plan and to submit the amended Plan for stockholder approval. The amendments to the Plan were approved at the annual meeting of stockholders on May 7, 2008. On June 3, 2010, the stockholders approved the addition of 3,000,000 shares to the Plan. Any incentive option and non-qualified option granted under the Plan must provide for an exercise price of not less than the fair market value of the underlying shares on the date of grant, but the exercise price of any incentive option granted to an eligible employee owning more than 10% of our outstanding common stock must not be less than 110% of fair market value on the date of the grant.

Share-based compensation expense recognized during the period is based on the value of the portion of share-based payment awards that is ultimately expected to vest. As share-based compensation expense recognized in the statement of

 

16

 


operations is based on awards ultimately expected to vest, it can be reduced for estimated forfeitures. The ASC topic Stock Compensation requires forfeitures to be estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates. The share based compensation charged against income for the six-month periods ended June 30, 2012 and 2011 was $918,088 and $898,314, respectively and for the three-month periods ended June 30, 2012 and 2011 was $529,669 and $449,475, respectively.

The weighted average estimated fair value of stock options granted during the three-month period ended June 30, 2012 was $1.48. We did not issue stock options in the three-month period ended June 30, 2011. The weighted average fair value of stock options granted is determined using the Black-Scholes option-pricing model, which values options based on the stock price at the grant date, the expected life of the option, the estimated volatility of the stock, the expected dividend payments, and the risk-free interest rate over the life of the option. The Black-Scholes option valuation model was developed for estimating the fair value of traded options that have no vesting restrictions and are fully transferable. Because option valuation models require the use of subjective assumptions, changes in or variations from these assumptions can materially affect the fair value of the options.

 

     
     June 30, 
2012

Risk-free interest rate

   .39%

Expected volatility of common stock

   65.34%

Dividend yield

   0%

Expected life of options

   3.0 years

NOTE K – DEFERRED REVENUE

From time to time, we enter into marine search services contracts associated with shipwreck and deep-sea mining projects. For each contract, revenue is recognized over the contractual period when services are performed as defined by the contract. The period of time a search project remains active varies but usually extends over several months and may be accelerated or extended depending upon operational factors. The marine services obligation was $3,545,140 at each period ended for June 30, 2012 and December 31, 2011 and will be recognized as revenue over the period of time the contractual marine services are provided.

NOTE L – CONCENTRATION OF CREDIT RISK

We maintain our cash at one financial institution. From December 31, 2010 to December 31, 2012, all noninterest-bearing transaction accounts are fully insured by the Federal Deposit Insurance Corporation, regardless of the balance of the account, at all insured institutions. At June 30, 2012, our uninsured cash balance was approximately $2,700,000.

Our term loan bears a variable interest rate based on LIBOR and our primary mortgage bears interest at a variable rate based on the prime rate. See NOTE I for further detail on these instruments. Both of these instruments expose us to interest rate risk. On our primary mortgage, for an increase of every 100 basis points, our interest obligation increases, at most, by approximately $1,100 per month until maturity in July 2013. On our term loan, an increase of every 100 basis points to the interest rate increases our interest obligation, at most, by approximately $4,100 per month until maturity in July 2013. If an increase to the rates on these instruments occurs, it will have an adverse effect on our operating cash flows and financial condition but we believe it would not be material.

NOTE M – DERIVATIVE FINANCIAL INSTRUMENTS

The following tables summarize the components of our derivative liabilities and linked common shares as of June 30, 2012 and December 31, 2011 and the amounts that were reflected in our income related to our derivatives for the three-month and six-months periods ended June 30, 2012 and 2011:

 

                 
     June 30, 
2012
     December 31, 
2011
 

Derivative liabilities:

                 

Embedded derivatives derived from:

                 

Senior Convertible Notes

   $ 4,912,547      $ 2,521,422  

Series G Convertible Preferred Stock

     286,335        158,711  
    

 

 

    

 

 

 
       5,198,882        2,680,133  
    

 

 

    

 

 

 

Warrant derivatives

                 

Senior Convertible Notes

     3,191,407        1,898,785  

Series G Convertible Preferred Stock

     3,687,675        2,754,375  
    

 

 

    

 

 

 

Warrant derivatives

     6,879,082        4,653,160  
    

 

 

    

 

 

 

Total derivative liabilities

   $ 12,077,964      $ 7,333,293  
    

 

 

    

 

 

 

Common shares linked to derivative liabilities:

                 

Embedded derivatives:

                 

Senior Convertible Notes

     5,305,800        2,673,797  

Series G Convertible Preferred Stock

     140,000        140,000  
    

 

 

    

 

 

 
       5,445,800        2,813,797  
    

 

 

    

 

 

 

Warrant derivatives

                 

Senior Convertible Notes

     1,562,500        1,302,083  

Series G Convertible Preferred Stock

     2,325,000        2,325,000  
    

 

 

    

 

 

 
       3,887,500        3,627,083  
    

 

 

    

 

 

 

Total common shares linked to derivative liabilities

     9,333,300        6,440,880  
    

 

 

    

 

 

 

 

17

 


 

                                 
     Three months ended June 30,      Six months ended June 30,  
     2012     2011      2012     2011  

Derivative income (expense):

                                 

Unrealized gains (losses) from fair value changes:

                                 

Senior Convertible Notes

   $ (1,611,725   $ —         $ (1,099,828   $ —     

Series G Convertible Preferred Stock

     (88,697     476,637         (127,624     (445,347

Warrant derivatives

     (1,512,479     227,925         (1,862,380     (139,275
    

 

 

   

 

 

    

 

 

   

 

 

 

Total derivative income (expense)

   $ (3,212,901   $ 704,562       $ (3,089,832   $ (584,622
    

 

 

   

 

 

    

 

 

   

 

 

 

Our Series G Convertible Preferred Stock and Warrant Financing Transaction on October 11, 2010, Series G Convertible Preferred Stock and Warrant Settlement Transaction during April 2011, and Senior Convertible Note and Warrant Financing Transactions on November 8, 2011 and May 10, 2012 gave rise to derivative financial instruments. As more fully discussed in Note Q, we entered into the Series G Convertible Preferred Stock and Warrant Financing Transaction and the Series G Convertible Preferred Stock and Warrant Settlement Transaction on October 11, 2010 and April 14, 2011, respectively. The Series G Convertible Preferred Stock embodied certain terms and features that both possessed all of the conditions of derivative financial instruments and were not clearly and closely related to the host preferred contract in terms of economic risks and characteristics. These terms and features consist of the embedded conversion option and the related down-round anti-dilution protection provision, the Company’s redemption privilege and the holder’s redemption privilege. Each of the redemption features also embodies the redemption premium payments. Warrants issued with this transaction and the subsequent Settlement Transaction embodied down-round anti-dilution protection and, accordingly, were not afforded equity classification.

As more fully discussed in NOTE I, we entered into the Senior Convertible Note and Warrant Financing Transactions on November 8, 2011 and May 10, 2012. The Senior Convertible Notes embodied certain terms and conditions that were not clearly and closely related to the host debt agreement in terms of economic risks and characteristics. These terms and features consist of the embedded conversion options, certain redemption features and a conversion price reset feature. Warrants issued with this transaction embodied reset price protection and, accordingly, were not afforded equity classification.

Current accounting principles that are provided in ASC 815 - Derivatives and Hedging require derivative financial instruments to be classified in liabilities and carried at fair value with changes recorded in income. In addition, the standards do not permit an issuer to account separately for individual derivative terms and features embedded in hybrid financial instruments that require bifurcation and liability classification as derivative financial instruments. Rather, such terms and features must be bundled together and fair valued as a single, compound embedded derivative. We have selected the Monte Carlo Simulations valuation technique to fair value the compound embedded derivative because we believe that this technique is reflective of all significant assumption types, and ranges of assumption inputs, that market participants would likely consider in transactions involving compound embedded derivatives. Such assumptions include, among other inputs, interest risk assumptions, credit risk assumptions and redemption behaviors in addition to traditional inputs for option models such as market trading volatility and risk free rates. We have selected Binomial Lattice to fair value our warrant derivatives because we believe this technique is reflective of all significant assumption types market participants would likely consider in transactions involving freestanding warrants derivatives. The Monte Carlo Simulations technique is a level three valuation technique because it requires the development of significant internal assumptions in addition to observable market indicators.

 

18

 


Significant inputs and results arising from the Monte Carlo Simulations process are as follows for the compound embedded derivative that has been bifurcated from our Senior Convertible Notes and classified in liabilities:

 

         
     June 30, 
2012
   December 31, 
2011

Quoted market price on valuation date

   $3.725    $2.74

Contractual conversion rate

   $3.17 - $3.74    $3.74

Range of effective contractual conversion rates

   $3.17 - $4.07    $2.74 - $2.89

Contractual term to maturity

   1.84 - 1.98 Years    2.33 Years

Implied expected term to maturity

   1.47 - 1.49 Years    2.06 Years

Market volatility:

         

Range of volatilities

   28.8% - 73.7%    55.6% - 101.8%

Range of equivalent volatilities

   44.4% - 64.3%    78.9% - 84.3%

Contractual interest rate

   8.0% - 9.0%    8.0%

Range of equivalent market risk adjusted interest rates

   8.0% - 9.1%    8.0%-8.1%

Range of equivalent credit risk adjusted yields

   1.35% - 1.55%    3.1% - 3.5%

Risk-free rates

   0.04% - 0.21%    0.01% - 0.25%

The effective contractual conversion rates give effect to the impending conversion price reset related to the Additional Notes, six months from their inception date, and were derived using a Random-Walk Brownian Motion Stochastic Process. In this process, the expected mean selling price of the Company’s common stock on the reset date was estimated at a range of $3.54 — $3.70 as of June 30, 2012 and $2.49 - $2.63 as of December 31, 2011. The mean prices derived from the stochastic process were multiplied by 110% which is a contractual provision for computing the reset price.

Significant inputs and results arising from the Monte Carlo Simulations process are as follows for the compound embedded derivative that has been bifurcated from our Series G Convertible Preferred Stock and classified in liabilities:

 

             
     June 30,    December 31,
     2012    2011    2011

Quoted market price on valuation date

   $3.725    $3.13    $2.74

Contractual conversion rate

   $1.78    $1.78    $1.78

Implied expected term

   0.33 Years    0.74 Years    0.46 Years

Market volatility:

              

Range of volatilities

   46.5% - 72.9%    61.8%-71.9%    49.5% - 101.8%

Equivalent volatility

   51.7%    67.4%    74.1%

Market risk adjusted interest rate:

              

Range of rates (including premiums)

   18.0% - 35.0%    8.0%-32.0%    13.0% - 32.0%

Equivalent market risk adjusted interest rate

   20.3%    12.4%    15.3%

Credit risk adjusted yield rate:

              

Range of rates

   1.4% - 3.3%    2.2%-3.3%    3.1% - 3.7%

Equivalent credit-risk adjusted yield rate

   1.4%    2.3%    3.1%

Risk free rates using zero coupon US Treasury

              

Security rates:

              

Range of rates

   0.04% - 0.10%    0.19%-0.81%    0.12% - 0.25%

The following table reflects the issuances of compound embedded derivatives, redemptions and changes in fair value inputs and assumptions related to the compound embedded derivatives during the periods ended June 30, 2012 and 2011.

 

                 
     Six Months ended June 30,  
     2012      2011  

Balances at January 1

   $ 2,680,133      $ 4,075,344  

Issuances:

     1,291,298           

Expirations from redemptions of host contracts reflected in income

     —           (676,718

Changes in fair value inputs and assumptions reflected

in income

     1,227,451         1,122,065  
    

 

 

    

 

 

 

Balances at June 30

   $ 5,198,882      $ 4,520,691  
    

 

 

    

 

 

 

The fair value of the compound embedded derivative is significantly influenced by our trading market price, the price volatility in trading and the interest components of the Monte Carlo Simulation technique.

 

On October 11, 2010, we also issued warrants to acquire 1,800,000 of our common shares in connection with the Series G Convertible Preferred Stock Financing. During April 4-8, 2011, we issued warrants to acquire 525,000 of our common shares in connection the Series G Convertible Preferred Stock and Warrant Settlement Transaction. Finally, on November 8, 2011, we issued warrants to acquire 1,302,083 of our common shares in connection with the Senior Convertible Note Financing Transaction. These warrants required liability classification as derivative financial instruments because certain down-round anti-dilution protection or price protection features included in the warrant agreements are not consistent with the concept of equity. We applied the Binomial Lattice valuation technique in estimating the fair value of the warrants because we believe that this technique is most appropriate and reflects all of the assumptions that market participants would likely consider in transactions involving the warrants, including the potential incremental value associated with the down-round anti-dilution protections.

 

19

 


The Binomial Lattice technique is a level three valuation technique because it requires the development of significant internal assumptions in addition to observable market indicators. Significant assumptions and utilized in the Binomial Lattice process are as follows for both the issuance dates of the warrants and June 30, 2012, June 30, 2011 and December 31, 2011:

 

             
     June 30,    December 31,
     2012    2011    2011

Linked common shares

   1,800,000    1,800,000    1,800,000

Quoted market price on valuation date

   $3.725    $3.13    $2.74

Contractual exercise rate

   $2.50    $2.50    $2.50

Term (years)

   1.28    2.28    1.78

Range of market volatilities

   48.7% - 73.1%    61.0% - 72.8%    56.8% - 101.6%

Risk free rates using zero coupon US Treasury Security rates

   0.04% - 0.27%    0.03% - 0.81%    0.02% - 0.25%
     
     June 30,    December 31,
     2012    2011    2011

Linked common shares

   525,000    525,000    525,000

Quoted market price on valuation date

   $3.725    $3.13    $2.74

Contractual exercise rate

   $2.75    $2.50    $2.75

Term (years)

   1.79    2.28    2.28

Range of market volatilities

   48.9% - 72.2%    61.0% - 72.8%    56.9% - 94.0%

Risk free rates using zero coupon US Treasury Security rates

   0.04% - 0.27%    0.03% - 0.81%    0.02% - 0.25%

 

         
     June 30, 
2012
   December 31, 
2011

Linked common shares

   1,562,500    1,302,083

Quoted market price on valuation date

   $3.725    $2.74

Contractual exercise rate

   $3.60    $4.32

Term (years)

   4.86    5.35

Range of volatilities

   48.8% - 72.5%    67.2%-87.5%

Risk free rates using zero coupon US Treasury Security rates

   0.09% - 0.72%    0.02% - 0.83%

Custom lattice variable: Probability of exercisability (434,027 linked common shares)

      60.0%

Of the 1,302,083 common shares accessible from the warrant issued on November 8, 2011, 434,027 of those common shares were accessible only based upon the Company’s election to require the lender to provide the additional financing. The lattice custom variable is the probability that management will elect to receive this funding. Based upon all current facts and circumstances, that probability was 60% as of December 31, 2011. When the lender provided additional financing of $8,000,000 on May 10, 2012, the additional 434,027 of common shares became accessible. Warrants indexed to an additional 260,417 were issued in conjunction with the additional financing.

The following table reflects the issuances of derivative warrants and changes in fair value inputs and assumptions related to the derivative warrants during the six months ended June 30, 2012 and 2011.

 

                 
     Six months ended June 30,  
     2012      2011  

Balances at January 1

   $ 4,653,160       $ 2,287,800  

Issuances

     363,542         906,150   

Changes in fair value inputs and assumptions reflected in income

     1,862,380         139,275  
    

 

 

    

 

 

 

Balances at June 30

   $ 6,879,082       $ 3,333,225  
    

 

 

    

 

 

 

 

20

 


The fair value of all warrant derivatives is significantly influenced by our trading market price, the price volatility in trading and the risk free interest components of the Binomial Lattice technique.

NOTE N – REVENUE PARTICIPATION RIGHTS

The Company’s participating revenue rights consisted of the following at June 30, 2012 and December 31, 2011:

 

                 
     June 30, 
2012
     December 31, 
2011
 

“ Cambridge ” project

   $ 825,000       $ 825,000   

“ Republic ” (now “ Seattle ”) project

     62,500         62,500   

Galt Resources, LLC

     7,512,500         7,512,500   
    

 

 

    

 

 

 

Total participating revenue rights

   $ 8,400,000       $ 8,400,000   
    

 

 

    

 

 

 

We previously sold Revenue Participation Certificates (“RPCs”) that represent the right to share in our future revenues derived from the “ Cambridge ” project, which is now referred to as the HMS Sussex shipwreck project. We also sold RPCs related to a project formerly called the “ Republic” project which we now call the “ Seattle ” project. The “ Seattle ” project refers to a shipwreck which we have not yet located. The “ Cambridge” RPC units constitute restricted securities.

Each $50,000 convertible “ Cambridge” RPC entitles the holder to receive a percentage of the gross revenue received by us from the “ Cambridge ” project, which is defined as all cash proceeds payable to us as a result of the “ Cambridge ” project, less any amounts paid to the British Government or their designee(s); provided, however, that all funds received by us to finance the project are excluded from gross revenue. The “ Cambridge ” project holders are entitled to 100% of the first $825,000 of gross revenue, 24.75% of gross revenue from $4 - 35 million, and 12.375% of gross revenue above $35 million generated by the project.

In a private placement that closed in September 2000, we sold “units” consisting of “ Republic” Revenue Participation Certificates and Common Stock. Each $50,000 “unit” entitled the holder to 1% of the gross revenue generated by the “ Seattle ” project (formerly referred to as the “ Republic ” project), and 100,000 shares of Common Stock. Gross revenue is defined as all cash proceeds payable to us as a result of the “ Seattle ” project, excluding funds received by us to finance the project.

The participating rights balance will be amortized under the units of revenue method once management can reasonably estimate potential revenue for each of these projects. The RPCs for the “Cambridge ” and “ Republic” projects do not have a termination date, therefore these liabilities will be carried on the books until revenue is recognized from these projects or we permanently abandon either project.

In February 2011, we entered into a project syndication deal with Galt Resources LLC (“Galt”) for which they invested $7,512,500 representing rights to future revenues of any project Galt selects prior to December 31, 2011. If the project is successful, Galt will recoup their investment plus three times the investment. These amounts will be paid out of proceeds of the project. Galt will receive 50% of the proceeds until this amount is recouped. Thereafter, they will share in additional net proceeds of the project at the rate of 1% for every million invested. The agreement originally allowed Galt to select only one project but an agreement was subsequently reached permitting Galt to bifurcate their selection between two projects, the SS Gairsoppa and HMS Victory. Galt will receive 50% of our net proceeds, if any, on the SS Gairsoppa project until they receive two times its initial investment of $7,512,500. Galt will also receive 50% of our net proceeds, if any, on the HMS Victory project until they receive two times its initial investment and thereafter will receive 7.5125% of our net proceeds from the HMS Victory project. The Galt invested balance will be amortized to revenue over the expected revenue stream of the selected project.

NOTE O – REDEEMABLE SERIES G PREFERRED STOCK

During October 2010, we designated and issued 24 shares of our authorized preferred stock as Series G 8% Convertible Preferred Stock, par value $0.0001 per share (the “Series G Preferred”) as further discussed below. In April 2011 and October 2011, we redeemed 3 and 20 shares, respectively, from certain holders of the Series G Preferred for cash of $757,500 and $5,065,556, respectively, under the terms and conditions of the Series G Preferred Certificate of Designation. At the time of redemption, the carrying value of these shares of Series G Preferred amounted to $558,926 and $5,000,000, respectively. We have recorded the difference between the redemption values paid and the carrying values amounting to $198,574 and $65,556, respectively, as a deemed dividend in paid-in capital. See NOTE K for our accounting for the associated compound embedded derivative that had been bifurcated and classified in liabilities. As of June 30, 2012 and December 31, 2011, 1 share of Series G Convertible Preferred Stock remains outstanding.

 

21

 


Significant terms and conditions of the Series G Preferred are as follows:

Dividends . The holders of the Series G Preferred will generally be entitled to receive cash dividends at a rate of $20,000 per share per year (or 8%), payable semi-annually on April 1 and October 1 of each year, commencing April 1, 2011. The dividends will be cumulative and shall accrue, whether or not earned or declared, from and after the date of issue.

Liquidation Preference . In the event of any liquidation, dissolution, or winding up of Odyssey’s affairs, each holder of the Series G Preferred then outstanding will be entitled to receive, before any payment or distribution will be made on Odyssey’s common stock or any capital stock of Odyssey ranking junior to the Series G Preferred as to the payment of dividends or the distribution of assets, an amount per share of Series G Preferred equal to the sum of (a) $250,000 plus (b) any accrued but unpaid dividends.

Voting Rights . The holders of Series G Preferred will be entitled to one vote for each share of common stock into which the Series G Preferred is convertible and will be entitled to notice of meetings of stockholders. The holders of Series G Preferred will also be entitled to vote as a separate class with respect to certain matters. However, no holder may exercise its voting rights if doing so would result in the holder beneficially owning in excess of 9.9% of the outstanding common stock, unless waived by the holder.

Conversion Rights . At any time on or after April 15, 2011, any holder of shares of Series G Preferred may convert any or all of the shares into shares of common stock. Each share of Series G preferred will be convertible into the number of shares determined by dividing $250,000 by $1.785714, which we refer to as the conversion price. The number of shares of common stock issuable upon conversion of the Series G Preferred is subject to adjustment in certain events, as discussed in the next paragraph.

Adjustments to Conversion Rights . If Odyssey pays a dividend or makes a distribution on its common stock in shares of common stock, subdivides its outstanding common stock into a greater number of shares, or combines its outstanding common stock into a smaller number of shares, or if there is a reorganization, or a merger or consolidation of Odyssey with or into any other entity which results in a conversion, exchange, or cancellation of the common stock, or a sale of all or substantially all of Odyssey’s assets, then the conversion rights described above will be adjusted appropriately so that each holder of Series G Preferred will receive the securities or other consideration the holder would have received if the holder’s Series G Preferred had been converted before the happening of the event. The conversion price in effect from time to time is also subject to downward adjustment if we issue or sell shares of common stock for a purchase price less than the conversion price or if we issue or sell shares convertible into or exercisable for shares of common stock with a conversion price or exercise price less than the conversion price for the Series G Preferred.

Limitations Upon Conversion Rights . No holder may convert shares of Series G Preferred if such conversion would result in the holder beneficially owning in excess of 9.9% of the outstanding common stock, unless waived by the holder. In addition, we will not issue any shares of common stock upon conversion of shares of Series G Preferred if the issuance of such shares of common stock would exceed the aggregate number of shares of common stock that we may issue upon conversion of all outstanding shares of Series G Preferred and the outstanding warrants offered hereby without breaching our obligations under the listing rules of the NASDAQ Stock Market relating to stockholder approval of certain issuances of securities.

Redemption . Odyssey has the option to redeem the Series G Preferred, in whole or in part, at any time after December 15, 2010 at a redemption price of 100% of the liquidation value. Commencing after March 31, 2011, the redemption price increases 1.0% each month without cap. Each holder will have the option to require Odyssey to redeem the Series G Preferred, in whole or in part, at any time after December 15, 2011 at a redemption price commencing at 109% of the liquidation value, which increases 1.0% each without cap such that, after December 15, 2011, the holder’s and Odyssey’s redemption prices will equal. In either case, the redemption price to be paid by Odyssey for each share of Series G Preferred will be the redemption prices referred to above plus accrued dividends. There is no sinking fund requirement for redemption of the Series G preferred stock.

On October 11, 2010, we issued (i) 20 shares of Series G Preferred, plus warrants to purchase 1,530,000 shares of our common stock for cash of $5,050,000 and (ii) 4 shares of Series G Preferred, plus warrants to purchase 270,000 shares of our common stock to settle certain promissory notes with a carrying value of $928,481. We have accounted for the Series G Preferred and warrants issued for cash as a financing transaction, wherein the net proceeds that we received was allocated to the financial instruments issued. We have accounted for the Series G Preferred and warrants issued in settlement of the promissory notes as an exchange, wherein we have recorded the financial instruments issued at their fair values and extinguished the promissory notes resulting in an extinguishment loss.

The following table summarizes the allocation for each of these transactions as of October 11, 2010:

 

                         
     Financing      Exchange     Total  

Redeemable preferred stock (1)

   $ 2,747,476      $ 888,997     $ 3,636,473  

Compound embedded derivatives (2)

     1,389,114        261,318       1,650,432  

Warrant derivatives (2)

     913,410        161,190       1,074,600  

Extinguishment loss

     —           (383,023     (383,023
    

 

 

    

 

 

   

 

 

 
     $ 5,050,000      $ 928,482     $ 5,978,482  
    

 

 

    

 

 

   

 

 

 

 

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(1) The fair value of the redeemable preferred stock was estimated based upon its forward cash flow value, at a credit-risk adjusted market interest rate, as enhanced by the fair value of the conversion feature. Credit-risk adjusted rates used to discount the cash flow component ranged from 3.98% to 4.89% over our estimated period to redemption, which is October 2013.The fair value of the conversion feature is reflected in the compound embedded derivative line of the table.
(2) See NOTE M for information related to the valuation of these financial instruments both on the inception date of the transactions and at December 31, 2010.

Prior to making the above accounting allocation, we evaluated the Series G Preferred and the warrants for proper classification under ASC 480 - Distinguishing Liabilities from Equity and ASC 815 - Derivatives and Hedging.

Series G Preferred :

ASC 480 generally requires liability classification for financial instruments that are certain to be redeemed, represent obligations to purchase shares of stock or represent obligations to issue a variable number of common shares. We concluded that the Series G Preferred was not within the scope of ASC 480 because none of the three conditions for liability classification was present.

ASC 815 generally requires the analysis embedded terms and features that have characteristics of derivatives to be evaluated for bifurcation and separate accounting in instances where their economic risks and characteristics are not clearly and closely related to the risks of the host contract. However, in order to perform this analysis we were first required to evaluate the economic risks and characteristics of the Series G Preferred in its entirety as being either akin to equity or akin to debt. Our evaluation concluded that the Series G was more akin to a debt-like contract largely due to the fact that the financial instrument is mandatorily redeemable for cash at the option of the holder and has a return in the form of a dividend that operates similarly with an interest rate on debt. Other features of the Series G Preferred that operate like equity, such as the conversion option and voting feature, did not afford sufficient evidence, in our view, to offset the weight of the primary debt-like features; that is, the redemption feature and the dividend feature. Accordingly, based upon this conclusion the clear and close relationship of embedded derivative features was made relative to a debt-like contract.

The material embedded derivative features consisted of the conversion option and related down-round anti-dilution protection, the Company’s redemption privilege, and the holder’s redemption privilege. The conversion option and related anti-dilution protection, bearing risks of equity, were not clearly and closely related to the debt-like Series G Preferred and required bifurcation. The redemption features, although generally bearing risks of debt, such as credit and interest risk, were not clearly and closely related to the Series G Preferred because the Series G Preferred was deemed to be issued at a substantial discount and there are scenarios, however improbable or remote, that the redemption features as designed could double the investor’s initial rate of return. Current accounting principles that are also provided in ASC 815 do not permit an issuer to account separately for individual derivative terms and features that require bifurcation and liability classification. Rather, such terms and features must be and were bundled together and fair valued as a single, compound embedded derivative.

Redeemable preferred stock represents preferred stock that is either redeemable for cash on a specific date or contingently redeemable for cash for events that are not within the control of management. Redeemable preferred stock is required to be classified outside of stockholders’ equity (in the mezzanine section). Because the Series G Preferred is redeemable at the holder’s option, we are required to record the residual from our allocation to the mezzanine section. This amount is further subject to accretion to the redemption value over the term to the earliest redemption date using the effective method. Accretion during the year ended December 31, 2011 amounted to $1,789,403 and there has been no further accretion during the six months ended June 30, 2012

Dividends on the Series G Preferred are recorded when they are declared. Cumulative dividends from the inception date of the transactions to June 30, 2012 amounted to $530,556 of which none are arrears on June 30, 2012.

Warrants:

The warrants issued in the financing and exchange transactions have terms of three years and an exercise price of $2.50. The contractual exercise price is subject to adjustment for both traditional recapitalization events and sales of common stock or other common stock linked contracts below the contractual exercise price. The latter is referred to as down-round anti-dilution protections. The warrants did not fall within the scope of ASC 480 under any of the three conditions referred to above. However, the warrants required derivative liability accounting because certain down-round anti-dilution protections are terms that are not consistent with the definition for financial instruments indexed to a company’s own stock.

 

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NOTE P – SUBSEQUENT EVENTS

On July 9, 2012, we entered into a project term loan agreement with Fifth Third Bank that provides a credit facility of up to $10.0 million. The facility will mature on January 31, 2013. The term loan bears interest at a floating rate equal to the one month LIBOR rate plus 500 basis points. We may make prepayments in whole or in part without premium or penalty. An origination fee of $50,000 was paid at closing. A restricted cash deposit of $500,000 would be required to cover any potential interest payments if the full amount of the term loan is advanced.

The term loan is secured by approximately $15.0 million worth of silver recovered from either the SS Gairsoppa or the SS Mantola shipwreck projects. The Company is required to comply with a number of customary covenants. Advances against the term loan of $5 million can be requested when at least $10.0 million worth of silver has been recovered, and a second advance of $5.0 million can be requested when at least $15.0 million worth of silver in total is delivered to the port of entry. The proceeds of the credit facility will be used to fund the project recovery costs. The company took a $10.0 million draw against the facility on July 17, 2012.

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following discussion will assist in the understanding of our financial position and results of operations. The information below should be read in conjunction with the financial statements, the related notes to the financial statements and our Annual Report on Form 10-K for the year ended December 31, 2011.

In addition to historical information, this discussion contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 regarding the Company’s expectations concerning its future operations, earnings and prospects. On the date the forward-looking statements are made, the statements represent the Company’s expectations, but the expectations concerning its future operations, earnings and prospects may change. The Company’s expectations involve risks and uncertainties (both favorable and unfavorable) and are based on many assumptions that the Company believes to be reasonable, but such assumptions may ultimately prove to be inaccurate or incomplete, in whole or in part. Accordingly, there can be no assurances that the Company’s expectations and the forward-looking statements will be correct. Please refer to the Company’s most recent Annual Report on Form 10-K for a description of risk factors that could cause actual results to differ (favorably or unfavorably) from the expectations stated in this discussion. Odyssey disclaims any obligation to update any of these forward-looking statements except as required by law.

Operational Update

Additional information regarding our announced projects may be found in our Annual Report on Form 10-K for the year ended December 31, 2011 and our Quarterly Report for the period ended March 31, 2012. Only projects with material status updates since those report were filed are discussed below. We may have other projects in various stages of planning or execution that may not be disclosed for security or legal reasons until considered appropriate by management.

We may use our owned vessel, the Odyssey Explorer, or chartered vessels to conduct operations based on availability.

HMS Victory Project

In 2008, Odyssey discovered HMS Victory (lost 1744) and is, as recognized by the owner and under maritime law, salvor-in-possession of the wreck. After a period of joint consultation between the UK Ministry of Defense and the UK Department for Culture, Media and Sport, and a public consultation period, the title to the HMS Victory was transferred to the Maritime Heritage Foundation in January 2012. The Foundation is a charity established to locate shipwrecks, investigate, recover and preserve artifacts to the highest archaeological standards and to promote knowledge and understanding of Britain’s maritime heritage, has now assumed responsibility for the future management of the wreck site. The Foundation has contracted with Odyssey to provide a full range of archaeological, recovery, conservation and other services.

Pursuant to an agreement with the Foundation, Odyssey has produced an extensive project design for the archaeological excavation of the site, including a complete plan for recording, documentation, conservation, publication and public education. The agreement calls for Odyssey’s project costs to be reimbursed and for Odyssey to be paid a percentage of the recovered artifacts’ fair value. The preferred option is for Odyssey to be compensated in cash. However, if the Foundation determines, based on the principles adopted for their collection management and curation policy, that it is in its best interest to de-accession certain artifacts, the Foundation may choose to compensate Odyssey with artifacts in lieu of cash.

A report was provided to the Foundation and the UK MOD that details monitoring of the site conducted by Odyssey and Wreck Watch International between 2008 and early 2012. The report includes evidence, including photographs, of additional damage to the site since 2008. This report was published in June 2012 and is available here http://shipwreck.net/victorypapers.php

 

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Reports detailing the phased archaeological operations at the shipwreck site will be provided to the Maritime Heritage Foundation after the completion of each phase.

“ Gairsoppa ” Project

On January 25, 2010, Odyssey was awarded the exclusive salvage contract for the cargo of the SS Gairsoppa by the United Kingdom Government (UKG) Department for Transport. The contract was awarded after a competitive bid process.

The SS Gairsoppa was a 412-foot steel-hulled British cargo ship that was torpedoed by a German U-boat in February 1941 while enlisted in the service of the UKG Ministry of War Transport. Contemporary research and official documents indicate that the ship was carrying £600,000 (1941 value) or up to 7 million total ounces of silver, including over 3 million ounces of private silver bullion insured by the UKG. The British Ministry of War Transport paid a War Risk Insurance Claim for £325,514 (in 1941 value) for 2,817 bars of silver that was reported to be on board the Gairsoppa when she sank. The UKG only paid this insurance on privately owned cargo. Any cargo belonging to the UKG owned cargo would not have been insured through the War Risk Insurance Office.

Under the recovery contract, Odyssey assumes the risk, expense, and responsibility for the search, cargo recovery, documentation, and marketing of the cargo. Any monetary proceeds from the salvage will first be applied to reimbursement of Odyssey’s recovery and processing expenses. Any remaining monetary proceeds will next be divided with Odyssey retaining 80% of the net salved value, and 20% retained by the UK.

Search operations began in July 2011. On September 26, 2011, we announced confirmation of the identity and location of the SS Gairsoppa approximately 300 miles southwest of Galway, Ireland in waters approximately 4700 meters deep.

In March and April, 2012 we conducted extensive reconnaissance dives to the site of the Gairsopp a shipwreck utilizing the RV Odyssey Explorer and an inspection-class ROV capable of diving to 6000 meters. The goal for this expedition was to prepare the recovery team with data to plan efficient and effective recovery operations. Hundreds of hours of high-definition dive video and thousands of still photographs were acquired during these dives and a photomosaic was produced. In addition to information about the cargo composition, location and accessibility, extensive information about the shipwreck’s condition and structure was acquired which allows us to more efficiently plan for a successful recovery of the target cargo.

The MV Seabed Worker, which serves as our platform for salvage recovery operations, left port in Norway May 31, 2012 to begin recovery operations.

On July 18, 2012, we announced that recovery of silver cargo from the Gairsoppa was underway and that the first 1.4 million troy ounces of silver had been delivered to a secure location in the UK. Recovery operations are continuing.

“Mantola” Project

Odyssey was also awarded the exclusive salvage contract for the cargo of the SS Mantola by the UKG Department for Transport. On October 10, 2011, we announced the discovery of the SSMantola , which sank on February 9, 1917, after being torpedoed by German submarine U-81. Odyssey discovered the shipwreck approximately 2,500 meters beneath the surface of the northern Atlantic Ocean, approximately 100 miles from the SS Gairsoppa shipwreck.

In 1917, the British Ministry of War Transport paid a War Risk Insurance Claim for £110,000 (in 1917 value) for silver that was reported to be on board the Mantola when she sank. This sum would equate to more than 600,000 ounces of silver based on silver prices in 1917. In September 2011, the UK Government Department for Transport awarded Odyssey a salvage contract for the cargo of the SSMantola . The terms and conditions are similar to the SS Gairsoppa salvage contract. Under the agreement, Odyssey will retain 80% of the net salved silver value recovered.

We are planning continue conducting our silver recovery operations in conjunction with the SS Gairsoppa recovery aboard the Seabed Worker .

Subsea Mineral Mining Exploration Projects

At June 30, 2012, we owned 6.2 million shares (approximately 33%) of Neptune Minerals, a company focused on discovering and commercializing high-value mineral deposits. To-date Neptune has been successful in attracting the investment capital required to fund mineral exploration expeditions and to facilitate its path to commercially viable ore extraction. Neptune’s most recent capital raise, completed in December 2011, was for $12 per share of Class B common stock.

In May 2012 we received our final cash payment of $1 million for recent charter services. We also received 9.3 million shares of Chatham Rock Phosphate Ltd. common stock for charter services valued at $1.7 million (12.2 % of Chatham shares outstanding). Chatham Rock Phosphate Ltd currently holds a license covering over 4,000 square kilometers off the coast of New Zealand believed to have significant seabed deposits of rock phosphate and other potentially valuable minerals.

It is anticipated that The Dorado Discovery will be undergoing routine annual inspection and maintenance work in the near future and when that is completed, will plan to be working on contracted projects in the Pacific.

 

26

 


Admiralty Legal Proceedings

An admiralty arrest is a legal process in which we seek recognition from the Court of our salvor-in-possession status for a specific shipwreck, site or cargo. It is the first legal step in establishing our rights to ownership or to a salvage award. If we are able to confirm that any entity has a potential legitimate legal claim to any materials recovered from any shipwreck site, we will provide legal notice to any and all potential claimants and pursue prompt resolutions of all claims.

“Black Swan” Arrest

On September 21, 2011, a panel of the Eleventh Circuit Court of Appeals upheld the dismissal of the case by the United States Federal District Court for the Middle District of Florida finding no subject matter jurisdiction under the Foreign Sovereign Immunities Act. Without concluding that the coins and artifacts recovered were owned by the Kingdom of Spain, the Court upheld the order to transfer all property to Spain based upon a finding that it was once carried aboard the Nuestra Senora de Las Mercedes , a Spanish naval vessel. The appeal had been argued before a panel of three judges. Odyssey and other claimants including the country of Peru filed Petitions for Rehearing En Banc , requesting that the entire Court hear the case. Those Petitions were denied.

In an order issued January 31, 2012, the Eleventh Circuit Court of Appeals denied the company’s motion for a stay of mandate, which would have delayed execution of the order for release of the property to Spain. Odyssey then filed an Emergency Motion for Stay with the U.S. Supreme Court to stay the release until the high Court could consider the Company’s Petition for Writ of Certiorari in the case. Justice Clarence Thomas denied our request to stay the mandate, and subsequently, the Eleventh Circuit issued a mandate to the district court. On February 17, 2012 the district court held a hearing and entered its order to Odyssey to provide an inventory of artifacts and to release to Spain the artifacts within its jurisdiction to Spain by February 24, 2012. Odyssey complied with the Court order and the coins were taken by Spain to a local U.S. Air Force base for transport to Spain on February 23, 2012. Odyssey has also released the Black Swan property in Gibraltar to Spain pursuant to the district court’s order. On April 16, 2012 Spain filed a motion with the district court for an award of unspecified fees and costs (footnoted roughly $4 million). We prepared our response indicating there is no legal basis for such an award in this case, and filed it on May 15, 2012. We await a ruling on the motion.

All of Odyssey’s significant filings to-date, including those made at the district court level, can be viewed at http://www.shipwreck.net/blackswanlegal.php .

Unidentified Shipwreck (Bray Case)

On March 31, 2011, the Eleventh Circuit Court of Appeals reversed the dismissal of the case ruling that an alleged oral agreement for purchase of research materials was a maritime contract. Upon remand to the district court, Plaintiff Bray filed an Amended Complaint seeking to rescind the written and fully performed contract, and adding yet more terms allegedly agreed upon over ten years ago prior to the written contract. Odyssey filed a Motion to Dismiss the Amended Complaint. On February 3, 2012, the district court entered an Order to Show Cause requesting Bray to explain why with no case or controversy, the Motion to Dismiss should not be granted. Bray’s response was filed on March 20, 2012. We await a ruling from the district court. We will continue to vigorously defend against what we consider to be a frivolous claim.

Critical Accounting Policies and Changes to Accounting Policies

There have been no material changes in our critical accounting estimates since December 31, 2011, nor have we adopted any accounting policy that has or will have a material impact on our consolidated financial statements.

Results of Operations

The dollar values discussed in the following tables, except as otherwise indicated, are approximations to the nearest $100,000 and therefore do not necessarily sum in columns or rows. For more detail refer to the Financial Statements in Part I, Item 1.

Three-months ended June 30, 2012, compared to three-months ended June 30, 2011

 

                                 
Increase/(Decrease)                2012 vs. 2011  
(Dollars in millions)    2012     2011     $     %  

Artifact sales and other

   $ .1      $ .1      $ —          27

Exhibit

     .1        —          —          164   

Expedition charter

     1.2        6.6        (5.4     (82
    

 

 

   

 

 

   

 

 

   

 

 

 

Total revenue

   $ 1.4      $ 6.7      $ (5.3     (79 )% 
    

 

 

   

 

 

   

 

 

   

 

 

 

Cost of sales

   $ .1      $ .1      $ —          71

Marketing, general and administrative

     2.5        2.4        .—          2   

Operations and research

     9.6        5.2        4.4        84   
    

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

   $ 12.1      $ 7.7      $ 4.5        58
    

 

 

   

 

 

   

 

 

   

 

 

 

Other income (expense)

   $ (4.9   $ (1.0   $ (3.9     (388 )% 
    

 

 

   

 

 

   

 

 

   

 

 

 

 

27

 


The explanations that follow are for the three-months ended June 30, 2012, compared to the three-months ended June 30, 2011.

Revenue

The decrease in total revenue of $5.3 million was primarily related to a decrease in expedition charter revenue. The decrease in expedition charter revenue was associated with our subsea mineral mining charters ($3.0 million) and a reduction of Robert Fraser shipwreck projects ($2.4 million). The expedition charter revenue of $1.2 million in 2012 was primarily associated with a subsea mineral mining charter with Chatham Rock Phosphates off the coast of New Zealand. The expedition charter revenue in 2011 of $4.2 million related to a subsea mineral mining charter with Neptune Minerals. Also, our operational efforts in 2012 were focused on our shipwreck recovery projects (i.e., Gairsoppa Mantola and HMS Victory ).

Operating Expenses

Operations and research expenses were $9.6 million in 2012 as compared to $5.2 million in 2011. Marine operations and vessel expenses were unfavorable by $4.3 million between the two periods. The increase was primarily related to our charter operations for the recovery of the Gairsoppa and Mantola projects ($4.1 million) and $.2 million of other miscellaneous ship operating expenses.

Other Income (Expense)

Other income and expense generally consists of interest income on investments offset by interest expense on our bank term and other mortgage loans and convertible notes. Beginning in the fourth quarter 2009, it also included the income or loss from our equity investment in subsea mineral mining which has since been written down to zero. It also includes the change in fair value of the derivatives related to our issuance of Series G convertible preferred stock and senior convertible notes. The unfavorable other expense variance of $3.9 million in the second quarter of 2012 was primarily related to an unfavorable impact on the fair value of the derivative financial instruments ($3.9 million, see Note M). Also included in other expense was a favorable impact of $1.6 million on the loss on equity investment since the investment had been written down to zero in 2011. This favorable impact was offset by unfavorable interest expense variance of $1.6 million which primarily related to the interest accretion on the convertible note payable and other interest.

Six-months ended June 30, 2012, compared to six-months ended June 30, 2011

 

                                 
Increase/(Decrease)                2012 vs. 2011  
(Dollars in millions)    2012     2011     $     %  

Artifact sales and other

   $ .2      $ .5      $ (.3     (59 )% 

Exhibit

     .1        .1        —          40   

Expedition charter

     4.0        8.3        (4.3     (51
    

 

 

   

 

 

   

 

 

   

 

 

 

Total revenue

   $ 4.3      $ 8.8      $ (4.5     (51 )% 
    

 

 

   

 

 

   

 

 

   

 

 

 

Cost of sales

   $ .1      $ .2      $ (.1     (45 )% 

Marketing, general and administrative

     4.8        4.6        .2        5   

Operations and research

     14.7        8.7        6.0        69   
    

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

   $ 19.7      $ 13.6      $ 6.1        45
    

 

 

   

 

 

   

 

 

   

 

 

 

Other income (expense)

   $ (5.7   $ (2.4   $ (3.3     (139 )% 
    

 

 

   

 

 

   

 

 

   

 

 

 

The explanations that follow are for the six-months ended June 30, 2012, compared to the six-months ended June 30, 2011.

Revenue

The decrease in total revenue of $4.5 million was primarily related to a decrease in expedition charter revenue of $4.3 million and a decrease in artifact sales and of $.3 million. The decrease in expedition charter revenue was associated with our subsea mineral mining charters ($1.4 million), a reduction of Robert Fraser shipwreck projects ($2.4 million) and a $.5 million miscellaneous charter in 2011 for the Odyssey Explorer. The expedition charter revenue of $4.0 million in 2012 was primarily associated with a subsea mineral mining charter with Chatham Rock Phosphates off the coast of New Zealand. The expedition charter revenue in 2011 of $5.4 million related to a subsea mineral mining charter with Neptune Minerals. Also, our operational efforts in 2012 were focused on our shipwreck recovery projects (i.e.,Gairsoppa Mantola and HMS Victory ).

The decrease in artifact and other sales of $.3 million was due to over 500 fewer coins sold in the 2012 versus 2011.

Operating Expenses

Cost of sales decreased by $.1 million in 2012 versus 2011 due approximately 500 fewer silver coins sold in the first quarter 2012 versus 2011.

 

28

 


Marketing, general and administrative expenses were $4.8 million in 2012 as compared to $2.6 million in 2011. The increase of $.2 million primarily represented an increase in our professional fees and services.

Operations and research expenses were $14.7 million in 2012 as compared to $8.7 million in 2011. Marine operations and vessel expenses were unfavorable by $5.9 million between the two periods. The Dorado Discovery was unfavorable $1.8 million in 2012 versus 2011 primarily related to operating day utilization and off hire periods in 2011 due to vessel maintenance issues. The Odyssey Explorerwas unfavorable $.9 million in 2012 versus 2011 primarily related to the additional rental costs for equipment for the Gairsoppa survey project which was offset by favorable Ocean Alert expenses of $.8 million due to the sale in 2011. The remaining unfavorable expenses of $4.1 million in 2012 related to our charter operations for the recovery of the Gairsoppa and Mantola projects.

Other Income (Expense)

Other income and expense generally consists of interest income on investments offset by interest expense on our bank term and other mortgage loans and convertible notes. Beginning in the fourth quarter 2009, it also included the income or loss from our equity investment in subsea mineral mining which has since been written down to zero. It also includes the change in fair value of the derivatives related to our issuance of Series G convertible preferred stock and senior convertible notes. The unfavorable other expense variance of $3.3 million in 2012 was primarily related to an unfavorable impact on the fair value of the derivative financial instruments ($2.5 million, see Note M). Also included in other expense was a favorable impact of $1.6 million on the loss on equity investment since the investment had been written down to zero in 2011. This favorable impact was offset by unfavorable interest expense variance of $2.5 million which primarily related to the interest accretion on the convertible note payable and other interest.

Liquidity and Capital Resources

 

                 
     Six-Months Ended  
(Dollars in thousands)    June 2012     June 2011  

Summary of Cash Flows:

                

Net cash used by operating activities

   $ (13,127   $ (4,201

Net cash used by investing activities

     (597     (401

Net cash provided by financing activities

     9,288        21,896   
    

 

 

   

 

 

 

Net increase (decrease) in cash and cash equivalents

   $ (4,436   $ 17,293   
     

Beginning cash and cash equivalents

     7,972        236   
    

 

 

   

 

 

 

Ending cash and cash equivalents

   $ 3,536      $ 17,529   
    

 

 

   

 

 

 

Discussion of Cash Flows

Net cash used by operating activities for the first six months of 2012 was $13.1 million. This amount primarily reflected an operating loss of $21.1 million offset in part by non-cash items of $6.8 million including depreciation and amortization ($.8 million), share-based compensation ($.9 million), notes payable interest accretion and loan fee amortization ($2.0 million), unfavorable change in the fair value of derivative liabilities ($3.1 million increase to Net Loss, see NOTE M). Other working capital changes (including non-current assets) also provided an increase in cash of $1.2 million. These changes primarily included a net increase of other assets and accounts receivable of $3.0 million (primarily relating to the $3.0 million charter deposit for our Gairsoppa and Mantola recovery projects) offset by a net increase in accounts payable and accrued expenses of $4.0 million (primarily relating to our ship charter operations). Net cash used by operating activities for the first six months of 2011 was $4.2 million. This amount primarily reflected an operating loss of $7.1 million offset in part by non-cash items including change in the fair value of derivative liabilities ($.6 million, see Note M), depreciation and amortization ($1.1million), and share-based compensation ($.9 million). Other non-cash working capital changes also provided an increase in cash of $.4 million.

Cash flows used in investing activities for the first six months of 2012 and 2011 was $.6 million and $.4 million, respectively, which represented the purchase of marine property and equipment in both periods.

Cash flows provided by financing activities for the first six months of 2012 was $9.3 million which primarily represented $2.0 million proceeds from the additional term loan from Fifth Third Bank in March 2012 offset by repayment of mortgage and loans payable and the $8.0 million additional proceeds from the second tranche of the Senior Convertible Note (Additional Note). Cash flows provided by financing activities for the first six months of 2011 were $21.9 million which primarily represented proceeds from the issuance of common stock ($15.7 million) and an increase in deferred income from revenue participation rights on the Galt project ($7.3 million, see Note N). The deferred income increase represented the proceeds from the Galt project which will be amortized into revenue if, or when, the designated project is recovered and monetized. Other uses which offset the aforementioned proceeds included redemption of a portion of the outstanding Series G convertible preferred stock ($.8 million), preferred dividends ($.2 million), and repayment of mortgage and loans payable ($.1 million).

 

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Other Cash Flow and Equity Areas

General Discussion

At June 30, 2012, we had cash and cash equivalents of $3.5 million, a decrease of $4.4 million from the December 31, 2011 balance of $8.0 million.

On November 8, 2011, we entered into a securities purchase agreement with one institutional investor pursuant to which Odyssey issued and sold a senior convertible note in the original principal amount of $10.0 million and a warrant to purchase up to 1,302,083 shares of Odyssey’s common stock for an aggregate purchase price of $10.0 million. Subject to the satisfaction of conditions set forth in the securities purchase agreement, Odyssey had the right to require the investor to purchase an additional senior convertible note in the original principal amount of up to $5.0 million on the six-month anniversary of the initial closing date. The indebtedness evidenced by the Notes bears interest at 8.0% percent per year, payable quarterly, and matures on the 30-month anniversary of the initial closing date. (See Note L to the Consolidated Financial Statements).

In April 2012, we delivered an additional closing notice under the securities purchase agreement that was executed in November 2011 when we issued and sold the investor a senior convertible note in the original principal amount of $10.0 million and warrants in amounts as stated above. In connection with the delivery of the additional closing notice, the original agreement was amended to increase the additional second tranche of the note to $8 million. The additional note bears interest at 9.0% per year and will mature on the 30-month anniversary of the initial closing date. The additional note will be amortized in equal monthly installments commencing on the eighth-month anniversary of the initial note and may be paid in cash or Odyssey common stock. The additional note may be converted into Odyssey’s common stock, at the option of the holder, at any time following six months after the date of issuance. Odyssey has a right to redeem the additional note. The initial conversion price of the additional note is $3.74 subject to adjustment as provided in the terms of the initial note. The number of shares of Odyssey’s common stock issuable upon exercise of the warrant increased to 1,562,500.

During December 2011, we chartered the Dorado Discovery vessel to Chatham Rock Phosphate, Ltd. for $1.2 million in relation to deep-ocean surveying. The charter permitted Chatham to pay for services in either cash or common shares of their company. At December 31, 2011, Chatham was planning on a financing to pay for the charter. We did not record the revenue from this charter because of their liquidity and capital positions at that time. Chatham completed a portion of their financing in the first quarter of 2012 and remitted the $1.2 million payment. In addition Chatham remitted $1.8 million for charter services in the first quarter 2012 for charter services in March 2012. An amount due of an additional $1 million was paid in May for services rendered in January 2012. In June, Chatham executed the option to pay the remaining charter balance of $1.7 million in stock and Odyssey received 9.3 million shares, or 12.2% of the company.

Bank Term Loan

On March 30, 2012, we amended our $3 million term loan maturing on April 23, 2012. The term loan was increased to $5 million with an expiration date of July 11, 2013. The facility bears floating interest at the one month LIBOR rate according to the Wall Street Journal plus 500 basis points. Any prepayments made in full or in part are without premium or penalty. A commitment renewal fee of $25,000 was payable at closing. No restricted cash payments will need to be kept on deposit. The term loan is still secured by approximately 27,000 numismatic coins recovered by the Company from the SSRepublic shipwreck, which amount will be reduced over the term by the amount of coins sold by the Company. The coins used as collateral will be held by a custodian for the security of the Bank. The borrowing base will be equal to forty percent (40%) of the eligible coin inventory valued on a rolling twelve month wholesale average value. The Company is required to comply with a number of customary covenants.

On July 9, 2012, Odyssey Marine Exploration, Inc. entered into a project term loan agreement with Fifth Third Bank that provides a credit facility of up to $10.0 million. The facility will mature on January 31, 2013. The term loan bears interest at a floating rate equal to the one month LIBOR rate plus 500 basis points. Odyssey may make prepayments in whole or in part without premium or penalty. An origination fee of $50,000 was payable at closing. A restricted cash deposit of $500,000 would be required to cover any potential interest payments if the full amount of the term loan is advanced. The term loan will be secured by approximately $15.0 million worth of silver recovered from either the SS Gairsoppa or the SS Mantola shipwreck projects. The Company is required to comply with a number of customary covenants. The proceeds of the credit facility will be used to fund the project recovery costs. The company took a $10 million draw against the facility on July 17, 2012.

Trends and Uncertainties

                 Our 2012 business plan contains assumptions which include that several of our planned projects are funded through project debt-type financings, syndications or other partnership opportunities. The business plan expenses include a 90-day charter agreement which we executed with a company to provide a ship and equipment to conduct recovery operations on the Gairsoppa and Mantola projects. We have recently renewed our term loan with Fifth Third Bank which increased our existing term loan from $3 million to $5 million through July 2013. We amended our senior convertible note and received an additional $8 million in May 2012. We are also permitted under the terms of our senior convertible note agreement to raise additional project indebtedness up to $15 million. In July we executed an agreement with Fifth Third Bank which provided $10 million of project financing collateralized with a portion of the silver from the project. We will also be reimbursed from silver sale proceeds for the costs of the project to-date which are now estimated to be approximately $13 million. We also intend to discuss additional finance opportunities with Fifth Third Bank. We expect to receive cash from silver proceeds beginning in the third and fourth quarter 2012. Based upon our current expectations, we believe our cash position will be sufficient to fund operating cash flows throughout the rest of 2012 taking into account our beginning cash balance, current cash flow expectations and revenues from multiple sources, including projected sales, syndicated projects and other potential financing

 

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arrangements. We have experienced several years of net losses resulting in a stockholders’ deficit. Our capacity to generate net income in future periods is dependent upon our success in recovering and monetizing high-value shipwrecks, realizing capital gains from our investments in other business opportunities or to generate income from mineral exploration activities, charters or other projects. However, it is likely that we could monetize a significant amount of cash from our existing shipwreck projects in 2012 which could fund our operations for future periods. If cash flow is not sufficient to meet our projected business plan requirements, we will be required to raise additional capital or curtail expenses. While we have been successful in raising the necessary funds in the past, there can be no assurance that we can continue to do so in the future.

New Accounting Pronouncements

As of June 30, 2012, the impact of recent accounting pronouncements on our business is not considered to be material.

Off-Balance Sheet Arrangements

We do not engage in off-balance sheet financing arrangements. In particular, we do not have any interest in so-called limited purpose entities, which include special purpose entities (SPEs) and structured finance entities.

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

Market risk is the exposure to loss resulting from changes in interest rates, foreign currency exchange rates, commodity prices and equity prices. Our term loan and primary mortgage bear interest at variable rates and expose us to interest rate risk. Our term loan bears a variable interest rate based on LIBOR and our primary mortgage bears an interest at a variable rate based on the prime rate. See NOTE I for further detail on these instruments. Both of these instruments expose us to interest rate risk. On our primary mortgage, for an increase of every 100 basis points, our interest obligation increases, at most, by approximately $1,100 per month until maturity in July 2013. On our term loan, an increase of every 100 basis points to the interest rate increases our interest obligation, at most, by approximately $4,100 per month until maturity in July 2013. If an increase to the rates on these instruments occurs, it will have an adverse effect on our operating cash flows and financial condition but we believe it would not be material. We do not believe we have other material market risk exposure and have not entered into any market risk sensitive instruments to mitigate these risks or for trading or speculative purposes.

ITEM 4. CONTROLS AND PROCEDURES

Odyssey maintains a set of disclosure controls and procedures designed to ensure that information required to be disclosed in reports that it files or submits under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission rules and forms. As of the end of the period covered by this report, based on an evaluation carried out under the supervision and with the participation of our management, including the Chief Executive Officer (CEO) and Chief Financial Officer (CFO), of the effectiveness of our disclosure controls and procedures, the CEO and CFO have concluded that our disclosure controls and procedures are effective. There have been no significant changes in our internal controls over financial reporting during the second quarter of 2012 that have materially affected, or are reasonably likely to materially affect, our internal controls over financial reporting.

PART II. OTHER INFORMATION

ITEM 1. Legal Proceedings

The Company is not currently a party to any material litigation other than the admiralty proceedings described in this report. From time to time in the ordinary course of business, we may be subject to or may assert a variety of claims or lawsuits.

See the information set forth under the heading “Operational Update – Admiralty Legal Proceedings” in Part I, Item 2 of this report for disclosure regarding certain admiralty legal proceedings in which we are involved. Such information is hereby incorporated by reference into this Part II, Item 1.

ITEM 1A. Risk Factors

For information regarding risk factors, please refer to Item 1A in the Company’s Annual Report on Form 10-K for the year ended December 31, 2011. Investors should consider such risk factors, as well as the risk factor set forth below, prior to making an investment decision with respect to the Company’s securities.

The issuance of shares at conversion prices lower than the market price at the time of conversion and the sale of such shares could adversely affect the price of our common stock.

Some of our outstanding shares may have been acquired from time to time upon conversion of outstanding senior convertible notes at conversion prices that are lower than the market price of our common stock at the time of conversion. Odyssey has agreed to pay each amortization payment due under the notes in shares of Odyssey’s common stock, if certain conditions are met; provided, that Odyssey may, at its option, elect to pay such amortization payments in cash. The conversion rate applicable to any amortization payment in shares of Odyssey’s common stock will be the lower of (a) the then-current conversion price and (b) a price equal to 85.0% of the average of the volume-weighted average price of

 

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Odyssey’s shares of common stock for a ten-day period immediately prior to the applicable amortization date. Conversion of the notes at conversion prices that are lower than the market price at the time of conversion and the sale of the shares issued upon conversion could have an adverse effect upon the market price of our common stock.

ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds

None.

ITEM 3. Defaults Upon Senior Securities

None.

ITEM 4. [Removed and Reserved]

ITEM 5. Other Information

None.

ITEM 6. Exhibits

 

     
   
  31.1    Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Filed herewith electronically)
   
  31.2    Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Filed herewith electronically)
   
  32.1    Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350 (Filed herewith electronically)
   
  32.2    Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350 (Filed herewith electronically)
   
  10.1    Loan Agreement dated July 9, 2012 with Fifth Third Bank
   
  10.2    Non-Revolving Line of Credit Promissory Note dated July 9, 2012 with Fifth Third Bank
   
101.1    Interactive Data File

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

             
       

ODYSSEY MARINE EXPLORATION, INC.

 

Date: August 1, 2012       By:  

/s/ Michael J. Holmes

            Michael J. Holmes, Chief Financial
            Officer and Authorized Officer

 

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EXHIBIT 10.1

LOAN AGREEMENT

This LOAN AGREEMENT (the “Agreement”) dated as of July 9, 2012, is made between FIFTH THIRD BANK , an Ohio banking corporation (the “Lender”), whose address is: 201 E. Kennedy Boulevard, Suite 1800, Tampa, Florida 33602, and ODYSSEY MARINE EXPLORATION, INC. , a Nevada corporation, authorized to do business in the State of Florida (the “Borrower”), whose address: is 5215 West Laurel Street, Tampa, Florida 33607.

BACKGROUND

A. Borrower has applied to Lender for a term loan not to exceed TEN MILLION DOLLARS ($10,000,000.00), (the “Loan”) to be evidenced by a commercial term promissory note (the “Note”) and secured by a collateral assignment of contract rights and proceeds under contracts with the Department for Transport Marine and Aviation Insurance War Risk, United Kingdom of Great Britain, for salvage of silver from the wrecks of the SS Mantola and the SS Gairsoppa.

B. Lender is willing to make the Loan described above based on the terms and conditions set forth in this Loan Agreement.

OPERATIVE TERMS

1. BACKGROUND AND DEFINED TERMS.

1.1. Background . The Background set forth above is true and correct and is incorporated by this reference.

1.2. Defined Terms . As used in this Agreement, the following terms shall have the following meanings:

“Cargo Report” shall have the meaning ascribed in Section 2.6 (b).

“Collateral Assignment of Contract Rights and Proceeds” shall have the meaning ascribed in Section 3.1 below.

“Default” shall have the meaning ascribed in Section 8.1 below.

“Department” shall mean the Department for Transport Marine and Aviation Insurance War Risk, United Kingdom of Great Britain

“JBR Salvage Insurance Policy” means that certain All Risks of Physical Loss or Damage, Premises and Transit Insurance Policy issued by Lloyd’s Syndicate 2488 AGM, Policy No.NA5679612, which insures the value of property recovered by the Borrower under the UK Salvage Contracts after delivery to the JBR refinery.

 


“Loan” means the loan advanced by Lender to Borrower in the maximum principal amount of $10,000,000.00 as evidenced by the Note.

“Loan Documents” means this Agreement, the Note, the Collateral Assignment of Contract Rights and Proceeds, and any other document executed or delivered by Borrower as evidence of, security for, or otherwise in connection with, the Loan.

“Maturity Date” means January 31, 2013.

“Note” means that certain Non-Revolving Line of Credit Promissory Note dated the date of this Agreement, made by Borrower to the order of Lender, in the original principal amount of $10,000,000.00.

“Obligations” means any and all indebtedness and other obligations under the Note, all obligations under this Loan Agreement and any other Loan Documents between Borrower and Lender, or its affiliates, whenever executed.

“Odyssey Cargo Insurance Policy” shall mean that certain Marine Cargo Direct Policy issued by AON Limited, Policy No. MA 1202002, which insures the value of property recovered by the Borrower under the UK Salvage Contracts while on the Odyssey Chartered Salvage ship.

“Odyssey Cargo Insurer” means insurance underwriter obligated under the Odyssey Cargo Insurance Policy

“Origination Fee” shall have the meaning ascribed in Section 2.5 below.

“Project Costs” shall mean all costs expended by the Borrower as required under the terms of the UK Salvage Contracts.

“Permitted Liens” shall have the meaning ascribed in Section 4.8 below.

“UK Salvage Contracts” shall mean the contracts with the Department for Transport Marine and Aviation Insurance War Risk, United Kingdom of Great Britain, for salvage of silver from the wrecks of the SS Mantola and the SS Gairsoppa.

“VIA MAT Insurance Policy” means the policy issued by Marsh Ltd., Policy No. TRA-10-813, insuring the value of property in transit while being transported by VIA MAT INTERNATIONAL (VMI) LTD INTERNATIONAL (VMI) LTD, or any subsidiary thereof, between the dock and the JBR refinery and between the JBR refinery and the bank designated to hold the refined silver pending sale on the London Commodity Exchange.

 

2

 


2. LOAN AMOUNT AND TERMS.

2.1. Loan . Subject to the terms, provisions and conditions, and relying upon the representations and warranties of Borrower provided herein, Lender agrees to advance the Loan to Borrower in accordance with the terms of the Note and this Agreement. Borrower agrees to accept the Loan and to use the proceeds thereof only for the Project Costs required under the UK Salvage Contracts.

2.2. Conditions to Extension of Loan . Lender’s obligation and agreement to make the Loan is conditioned upon, and is made subject to, the following terms and conditions:

(a) Execution and Delivery of Loan Documents . Lender shall make the Loan available to Borrower upon the execution of this Agreement, and the execution and delivery by Borrower of the Note, the Collateral Assignment of Contract Rights and Proceeds and other Loan Documents.

(b) Primary Banking Relationship . Borrower agrees to establish its primary banking relationship with Lender and move to and maintain with Lender all accounts as may be necessary as part thereof.

(c) Required Financial Statement Deliverables . Borrower shall deliver or cause to be delivered to Lender the financial statements and SEC 10-Q filings for Borrower as provided in Section 7.1 below.

(d) Insurance Policies . Borrower shall deliver or cause to be delivered to Lender copies of the Odyssey Cargo Insurance Policy, the JBR Salvage Insurance Policy and the VIA MAT Insurance Policy, which shall specifically insure the silver and proceeds under the UK Salvage Contracts, naming Lender as an additional insured, each in form and substance satisfactory to Lender.

2.3. Term . The Loan will be for a term due and payable in full on the Maturity Date.

2.4. Repayment Terms . The Loan will accrue interest and will be repayable in accordance with the terms of the Note.

2.5. Loan Fee and Closing Costs . Borrower agrees to pay Lender a non-refundable loan origination fee in the amount of $50,000.00 (the “Origination Fee”) upon closing of the Loan. Borrower and Lender recognize and agree that the Origination Fee (i) is not a charge for the use of money, but rather a purchase of the right to secure a loan of money on the part of Borrower; and (ii) is a material inducement for Lender to make the Loan and for having Lender ready, willing and able to fund the Loan in accordance with the terms of this Agreement. Borrower’s payment of the Origination Fee to Lender is and shall be in addition to all other payments (including without

 

3

 


limitation principal and interest) now or hereafter payable to Lender pursuant to the terms and conditions of the Note or the other Loan Documents. At closing Borrower shall pay all Loan costs and fees as set forth on a Loan Settlement Statement.

2.6. Loan Disbursements . The Loan proceeds shall be reserved by Lender and disbursed to Borrower under the following procedures:

(a) Interest Reserve Account . Upon disbursement of the Initial Loan Advance (herein defined), the sum of $250,000.00 of the Loan proceeds shall be disbursed by Lender to an Interest Reserve Account with Lender (the “Initial Interest Reserve”). Upon disbursement of the Second Loan Advance (herein defined), an additional sum of $250,000.00 shall be disbursed by Lender to an Interest Reserve Account (the “Second Interest Reserve”). All accrued interest payments payable under the terms of the Note shall automatically be debited from the Interest Reserve Account. The Interest Reserve Account is hereby pledged as additional security for the Loan.

(b) Initial Loan Advance . Under the terms of the Odyssey Cargo Insurance Policy, as the silver is salvaged from the wrecks and delivered to the deck of the JBR salvage ship, Borrower is obligated to deliver cargo reports to the Odyssey Cargo Insurer detailing the inventory (serial bar codes, identification marks, measurements, weight, number of pieces/ingots, etc.), its location, and the estimated value of the cargo (the “Cargo Reports”). Borrower shall simultaneously deliver copies of the Cargo Reports to Lender. When the Cargo Reports and the Odyssey Cargo Insurer have verified that the insurance coverage for the silver under the Odyssey Cargo Insurance Policy on the deck of the JBR salvage ship is at a value of $10,000,000 or greater, Lender shall disburse to the Borrower Loan proceeds in the amount of $5,000,000.00, net of the Initial Interest Reserve.

(c) Second Loan Advance . When all of the silver recovered from the wrecks has been delivered to the dock in the United Kingdom, and the Cargo Reports and Odyssey Cargo Insurer have verified that the insurance coverage for the silver under the Odyssey Cargo Insurance Policy at the dock is at a value of $15,000,000 or greater, Lender shall disbursed to the Borrower the remaining Loan proceeds in the amount of $5,000,000.00, net of the Second Interest Reserve.

3. COLLATERAL.

3.1. Collateral Assignment of Contract Rights and Salvage Proceeds . Borrower’s obligations to repay the Loan to Lender and under this Agreement are secured, inter alia , by a first priority collateral assignment of all of Borrower’s rights and proceeds from the UK Salvage Contracts, under which Borrower is to receive 80% of the net sale proceeds from the refined silver recovered from the SS Mantola and the SS Gairsoppa ship wrecks after sale on the London Commodity Exchange (net of salvage costs) and any reimbursement of Project Costs expended by Borrower (the “Salvage Proceeds”).

 

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3.2. Assignment and Security Agreement and Pledge of Depository Account . Borrower shall establish a depository account (the “Salvage Proceeds Account”) with Lender for the deposit of all Salvage Proceeds from the sale of silver and any reimbursement to the Borrower for Project Costs under the terms of the UK Salvage Contracts that are payable to Borrower, and shall instruct the Department to wire payment of all such proceeds directly into the Salvage Proceeds Account and to provide Lender with advance notice of each wire into the Salvage Proceeds Account. The Salvage Proceeds Account shall be pledged by Borrower as additional collateral for the Loan. All UK Salvage Contracts proceeds which are deposited into the Salvage Proceeds Account shall be applied by Lender for principal re-payment of the Loan and the Borrower hereby authorizes Lender to make such payments. The funds in the Deposit Account shall not be available to the Borrower for any other purpose until the Loan is fully repaid.

4. REPRESENTATIONS AND WARRANTIES.

When Borrower signs this Agreement, and until Lender is repaid in full, Borrower makes the following representations and warranties:

4.1. Formation and Good Standing . Borrower is duly formed and existing under the laws of the state or other jurisdiction where organized. In each state in which Borrower does business, Borrower is in good standing and possesses all permits and licenses required and necessary to enable it to conduct the business in which it is now engaged.

4.2. Authorization . This Agreement, and any instrument or agreement required hereunder, are within Borrower’s powers, have been duly authorized, and do not conflict with any of Borrower’s organizational documents.

4.3. Enforceable Agreement . This Agreement is a legal, valid and binding agreement of Borrower, enforceable against Borrower in accordance with its terms, and any instrument or agreement required hereunder, when executed and delivered, will be similarly legal, valid, binding and enforceable.

4.4. No Conflicts . The execution, delivery and performance by Borrower of this Agreement and other Loan Documents to which it is a party do not (i) contravene, or constitute (with or without the giving of notice or lapse of time or both) a violation of any provision of applicable law, a violation of the organizational documents of Borrower, or a default under any agreement, judgment, injunction, order, decree or other instrument binding upon or affecting Borrower, (ii) result in the creation or imposition of any lien (other than the lien(s) created by the Loan Documents) on any of Borrower’s assets, or (iii) give cause for the acceleration of any obligations of Borrower to any other creditor.

4.5. Financial Information . All financial and other information that has been or will be supplied to Lender is true, correct and complete in all material respects and is sufficient to give Lender accurate knowledge of Borrower’s financial condition, including

 

5

 


all material contingent liabilities. Since the date of the most recent financial statement provided to Lender, there has been no material adverse change in the business condition (financial or otherwise), operations, properties or prospects of Borrower.

4.6. Discharge of Liens and Taxes . Borrower has duly filed, paid and/or discharged all taxes or other claims that may become a lien on any of its property or assets, except to the extent that such items are being appropriately contested in good faith and an adequate reserve for the payment thereof is being maintained.

4.7. Lawsuits . There is no lawsuit, tax claim or other dispute pending or threatened against Borrower which, if lost, would impair Borrower’s financial condition or ability to repay the Loan, except as have been disclosed in writing to Lender.

4.8. Asset Ownership . Borrower has good and marketable title to all of the properties and assets reflected on the balance sheets and financial statements supplied Lender by Borrower, and all such properties and assets are free and clear of mortgages, security deeds, pledges, liens, charges, and all other encumbrances, except as otherwise disclosed to Lender by Borrower in writing and approved by Lender (“Permitted Liens”). To Borrower’s knowledge, no default has occurred under any Permitted Liens and no claims or interests adverse to Borrower’s present rights in its properties and assets have arisen. Borrower has duly filed, paid and/or discharged all taxes or other claims which may become a lien on any of its property or assets, excepting to the extent that such items are being appropriately contested in good faith and an adequate reserve for the payment thereof is being maintained.

4.9. Other Obligations . Borrower is not in default on any obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as have been disclosed in writing to Lender.

4.10. Tax Matters . Borrower has no knowledge of any pending assessments or adjustments of its income tax for any year and all taxes due have been paid, except as have been disclosed in writing to Lender.

4.11. No Event of Default . There is no event which is, or with notice or lapse of time or both would be, a Default under this Agreement and/or the Note.

4.12. Sufficiency of Capital . Borrower is not, and after consummation of this Agreement and after giving effect to all indebtedness incurred and liens created by Borrower in connection with the Note and any other Loan Documents, will not be, insolvent within the meaning of 11 U.S.C. § 101, as in effect from time to time.

4.13. Compliance with Laws . Borrower is in compliance in all material respects with all federal, state and local laws, rules and regulations applicable to its properties, operations, business, and finances, including, without limitation, all applicable federal, state and local laws and regulations intended to protect the environment; and the Employee Retirement Income Security Act of 1974, as amended, if applicable.

 

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4.14. OFAC . None of Borrower, or any subsidiary or affiliate of Borrower or any Guarantor is a Sanctioned Person or has any of its assets in a Sanctioned Country or does business in or with, or derives any of its operating income from investments in or transactions with, Sanctioned Persons or Sanctioned Countries in violation of economic sanctions administered by OFAC. The proceeds from the Loan will not be used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Country. “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control. “Sanctioned Country” means a country subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml, or as otherwise published from time to time. “Sanctioned Person” means (i) a person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn/index.shtml, or as otherwise published from time to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or (C) a person resident in a Sanctioned Country to the extent subject to a sanctions program administered by OFAC.

4.15. Location of Borrower . The place of business of Borrower is located at the address listed on the first page of this Agreement.

4.16. Representations Regarding the UK Salvage Contracts .

(a) The UK Salvage Contracts are in full force and effect, and Borrower has not received any notice of any default under the UK Salvage Contract.

(b) There is no other assignment of any of its rights under or its interest in the UK Salvage Contracts to any other person.

(c) Borrower has done no act nor omitted to do any act which might prevent Lender from, or limit Lender in, acting under any of the provisions in the UK Salvage Contracts.

(c) Borrower is not prohibited under any agreement with any other person or any judgment or decree from the execution and delivery of this Assignment of the UK Salvage Contracts.

(d) No action has been brought or threatened which would in any way interfere with the right of Borrower to execute the Collateral Assignment of Contract Rights and Proceeds, and perform all of Borrower’s obligations thereunder.

(e) Borrower has obtained all necessary approvals by any governmental agency or foreign authority required to fulfill the terms of this Agreement.

 

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4.17 Loan Subordinations . Any related party notes payable by Borrower, to owners of Borrower, or to other related parties, now existing or hereafter made are and shall be subordinated to the lien of the Loan granted herein. Borrower confirms that all related party debts are fully disclosed on the financial statements provided to Lender and in the event Lender so requires, such related parties shall enter into subordination agreements to evidence the requirements of this Section.

4.18 Continuing Effectiveness . The effectiveness of this Agreement shall be subject to the continuing accuracy of all representations and warranties of the Borrower contained herein. Each advance made to the Borrower pursuant to the Agreement shall constitute an automatic warranty and representation by Borrower to Lender that there does not exist a Default (as herein defined) or any event or condition which, with notice, lapse of time and/or the making of such advance, would constitute a Default, and a reaffirmation as of the date of said request of all the representations and warranties of Borrower contained in the Agreement. Borrower covenants, warrants and represents to Lender that all representations and warranties contained in this Agreement shall be true in all material respects at the time of execution of the Loan Documents and shall survive the execution, delivery and acceptance thereof by the parties thereto and the closing of the transactions described therein or related thereto.

5. AFFIRMATIVE COVENANTS.

Borrower covenants and agrees, so long as credit is available under this Agreement and until Lender is repaid in full, that Borrower will:

5.1. Business Continuity . Conduct its business in substantially the same manner as such business is now and has heretofore been carried on and conducted.

5.2. Existence . Comply fully with all applicable statutes, laws and regulations, and maintain the existence of itself.

5.3. Maintenance of Assets . Maintain, preserve and keep its property and assets in good repair, working order and condition, making all needed replacements, additions, improvements and renewals thereto, to the extent allowed by this Agreement.

5.4. Access to Books and Records . Allow Lender, or its agents, during normal business hours, at Borrower’s primary place of business to have access to the books, financial records and such other financial documents of Borrower, as Lender shall reasonably require, and allow Lender to make copies thereof at Lender’s expense which copies will be kept confidential by Lender.

5.5. Notices to Lender . Promptly notify Lender in writing of:

(a) Any substantial dispute between any governmental authority and Borrower.

 

8

 


(b) Any Default under this Agreement, or any event which, with notice or lapse of time or both, would constitute an event of Default.

(c) Any material adverse change in Borrower’s business condition (financial or otherwise), operations, properties or prospects, or ability to repay the credit.

(d) Any change in Borrower’s name, legal structure, place of business, or chief executive office if Borrower has more than one place of business.

(e) Any actual contingent liabilities of Borrower, and any such contingent liabilities which are reasonably foreseeable.

5.6. Insurance .

(a) General Business Insurance . To maintain insurance satisfactory to Lender as to amount, nature and carrier covering property damage (including loss of use and occupancy) to any of Borrower’s properties, business interruption insurance, public liability insurance including coverage for contractual liability, product liability and workers’ compensation, and any other insurance which is usual for Borrower’s business. The insurance must be issued by an insurance company acceptable to Lender and must name Lender as an additional insured party. Each policy shall provide for at least thirty (30) days prior notice to Lender of any cancellation thereof.

(b) Insurance Covering Collateral . To maintain in good standing the Odyssey Cargo Insurance Policy and assure that the JBR Salvage Insurance Policy covering the collateral for this Loan for the full replacement cost of the collateral. The insurance must be issued by an insurance companies acceptable to Lender and must include a lender’s loss payable endorsement in favor of Lender in a form acceptable to Lender and shall provide for at least thirty (30) days prior notice to Lender of any cancellation thereof.

(c) Evidence of Insurance . Upon the request of Lender, to deliver to Lender a copy of each insurance policy, or, if permitted by Lender, a certificate of insurance listing all insurance in force.

5.7. Compliance with Laws . To comply with the laws, regulations, and orders of any government body with authority over Borrower’s business. Lender shall have no obligation to make any advance to Borrower except in compliance with all applicable laws and regulations and Borrower shall fully cooperate with Lender in complying with all such applicable laws and regulations.

5.8. Audits . To allow Lender and its agents to inspect Borrower’s properties and examine, audit, and make copies of books and records at any reasonable time. If any of Borrower’s properties, books or records are in the possession of a third party, Borrower authorizes that third party to permit Lender or its agents to have access to perform inspections or audits and to respond to Lender’s requests for information concerning such properties, books and records.

 

9

 


5.9. Perfection of Liens . To help Lender perfect and protect its security interests and liens, and reimburse it for related costs it incurs to protect its security interests and liens.

5.10. Cooperation . To take any action reasonably requested by Lender to carry out the intent of this Agreement.

5.11. Primary Banking Relationship . Establish and maintain its primary banking relationship with Lender and to move to Lender and maintain with Lender all accounts as may be necessary as part thereof.

5.12. Legal Claims to Salvaged Silver or Proceeds, and Safeguards . Upon request by Lender, Borrower shall provide necessary documentation indicating that there are no potential sovereign/legal claims to the silver or the proceeds therefrom that is being salvaged under the UK Salvage Contracts, and provide information to Lender regarding security procedures Borrower will implement to safeguard the silver.

6. NEGATIVE COVENANTS.

Borrower covenants and agrees, so long as credit is available under this Agreement and until Lender is repaid in full, that Borrower will not :

6.1. Change of Management . Make any substantial change in the present executive or management personnel of Borrower without the prior written approval of Lender.

6.2. Change of Ownership . Cause, permit, or suffer any change in capital ownership in the direct or indirect capital ownership of Borrower.

6.3. Additional Negative Covenants . Not to, without Lender’s written consent:

(a) Enter into any consolidation, merger, or other combination with any other entity.

(b) Acquire or purchase a business or its assets.

(c) Engage in any business activities substantially different from Borrower’s present business.

(d) Liquidate or dissolve Borrower’s business.

6.4. No Consumer Purpose . Use this loan for personal, family, or household purposes. Lender may provide Borrower with certain disclosures intended for loans made for personal, family, or household purposes. The fact that Lender elects to make such disclosures shall not be deemed a determination by Lender that the loan will be used for such purposes.

 

10

 


7. FINANCIAL AND REPORTING COVENANTS.

7.1 Financial Statements and Reports. Borrower shall maintain systems of accounting established and administered in accordance with Generally Accepted Accounting Principles. The Borrower will furnish to the Lender:

(a) Within 120 days after the end of each fiscal year, the Borrower shall deliver to Lender audited financial statements and, upon filing with the SEC, a copy of its Annual Report on Form 10-K for such fiscal year.

(b) Within 60 days of the end of each of the first three quarters in each fiscal year, Borrower shall deliver to Lender a copy of its Quarterly Report on Form 10-Q for such quarter.

(c) Concurrently with the statements furnished pursuant to paragraph (a) of this Section 7.1, a certificate of an authorized officer of the Borrower certifying that to the best of his knowledge, no Default has occurred hereunder, nor any event which with notice or lapse of time, or both, would constitute such a Default, has occurred or, if such a Default or event has occurred, specifying the nature and extent thereof.

(d) Promptly, from time to time, such other information regarding the operation, business, affairs and financial condition of Borrower as Lender may reasonably request.

For the purposes of this Section 7.1, Lender agrees that any report or other document filed by Borrower with the SEC through the EDGAR system shall be deemed to have been concurrently delivered or provided to Lender.

8. DEFAULT AND REMEDIES.

8.1. Default . The occurrence of any of the following shall constitute a “Default” under this Agreement:

(a) Failure to Pay . Borrower fails to make a payment including any interest, principal or fees under this Agreement or the Note when due.

(b) Default under Related Documents . Any non-monetary default occurs (after the expiration of any applicable notice and cure period) under this Agreement or the Loan Documents. The non-monetary defaults include, but are not limited to, the Borrower’s failure to satisfy any covenant under this Agreement or the Loan Documents, any breach of Borrower’s representations or warranties under this Agreement or the Loan Documents or the occurrence of any change of control for the Borrower.

 

11

 


(c) False Information . Borrower has given Lender any materially false or misleading information or representations.

(d) Bankruptcy . Borrower files a bankruptcy petition, a bankruptcy petition is filed against Borrower, or Borrower makes a general assignment for the benefit of creditors.

(e) Receivers . A receiver or similar official is appointed for a substantial portion of Borrower’s business, or the business is terminated, or, if any Borrower is anything other than a natural person, such Borrower is liquidated or dissolved.

(f) Security Interest and Priority . Lender fails to have an enforceable first lien security interest under the Collateral Assignment of Contract Rights and Proceeds given as security for this Agreement.

(g) Lawsuits . Any lawsuit or lawsuits are filed on behalf of one or more trade creditors against Borrower in an aggregate amount of $100,000.00 or more in excess of any insurance coverage.

(h) Judgments . Any judgments or arbitration awards are entered against Borrower, or Borrower enters into any settlement agreements with respect to any litigation or arbitration, in an aggregate amount of $100,000.00 or more in excess of any insurance coverage.

(i) Material Adverse Change . A material adverse change occurs, or is reasonably likely to occur, in Borrower’s business condition (financial or otherwise), operations, properties or prospects, or ability to repay the credit.

(j) Other Breach Under Agreement . A default occurs under any other term or condition of this Agreement not specifically referred to in this Section 8.1 . This includes any failure or anticipated failure by Borrower (or any other party named in the Covenants section) to comply with any financial covenants set forth in this Agreement, whether such failure is evidenced by financial statements delivered to Lender or is otherwise known to Borrower or Lender. Any default, other than for nonpayment, may be cured within thirty (30) days after written notice thereof is mailed to Borrower by Lender. Borrower’s right to cure shall be applicable only to curable Defaults and shall not apply, without limitation, to Defaults based upon false information or bankruptcy. Lender shall not exercise its remedies to collect the Obligations, except as Lender reasonably deems necessary to protect its interests in collateral securing the Obligations during a cure period.

 

12

 


8.2. Remedies . In the event of the occurrence of a Default as described above, and failure by Borrower to correct such Default within the applicable cure period, if any, then Lender may at any time thereafter, at its option, take any or all of the following actions, at the same or different times:

(a) Declare the balance of the Obligations be due and payable, both as to principal and interest, without presentment, demand, protest, or other notice of any kind, all of which are hereby expressly waived by Borrower; and/or

(b) Require Borrower to pledge such collateral or additional collateral to Lender from Borrower’s assets and properties, the acceptability and sufficiency of such collateral to be determined solely by Lender; and/or

(c) Take immediate possession of any or all collateral including the personal property which may be granted to Lender as security for the obligations of Borrower under this Agreement or pursuant to the Mortgage; and/or

(d) Exercise such other rights and remedies as Lender may be provided in the Loan Documents.

8.3. Waiver . No failure or delay on the part of Lender in exercising any right, power, or privilege granted pursuant to this Agreement shall operate as a waiver, nor shall a single or partial exercise thereof preclude any other or further exercise or the exercise of any other right, power or privilege.

8.4. No Reliance by Third Parties . The rights of the Lender to declare a default of the Borrower under this Agreement or the Loan Documents is a right exclusive to the Lender and shall under no circumstances inure to any third parties.

9. CROSS-DEFAULT AND CROSS-COLLATERALIZATION . Any Event of Default under the terms of the Loan shall constitute and hereby is declared to be an immediate and absolute default under the terms of all loans between Lender and Borrower. Should an event of default occur under the terms of any of said loans, which event is subject to notice and cure periods, if any, failure to cure such event of default within such curative period shall constitute an immediate default under this Loan and all such other loans owed by Borrower to Lender, Each of the foregoing loans between Lender and Borrower shall also be cross-collateralized, whether such loans are now existing or hereafter entered into between Lender and Borrower at any time.

10. OTHER PROVISIONS.

10.1. Florida Law . This Agreement is governed by Florida state law.

10.2. Successors and Assigns . This Agreement is binding on Borrower’s and Lender’s successors and assignees. Borrower agrees that it may not assign this Agreement without Lender’s prior written consent. Lender may sell participations in or

 

13

 


assign the Loan, and may exchange information about Borrower (including, without limitation, any information regarding any hazardous substances) with actual or potential participants or assignees. If participation is sold or the loan is assigned, the purchaser will have the right of set-off against Borrower.

10.3. Severability; Waivers . If any part of this Agreement is not enforceable, the rest of the Agreement may be enforced. Lender retains all rights, even if it makes a loan after default. If Lender waives a default, it may enforce a later default. Any consent or waiver under this Agreement must be in writing.

10.4. Attorneys’ Fees . Borrower shall reimburse Lender for any reasonable costs and attorneys’ fees incurred by Lender in connection with the enforcement or preservation of any rights or remedies under this Agreement and any other documents executed in connection with this Agreement including but not limited to the Note, and in connection with any amendment, waiver, “workout” or restructuring under this Agreement. In the event of a lawsuit or arbitration proceeding, the prevailing party is entitled to recover costs and reasonable attorneys’ fees incurred in connection with the lawsuit or arbitration proceeding, as determined by the court or arbitrator. In the event that any case is commenced by or against Borrower under Bankruptcy Code (Title 11, United States Code) or any similar or successor statute, Lender is entitled to recover costs and reasonable attorneys’ fees incurred by Lender related to the preservation, protection, or enforcement of any rights of Lender in such a case. As used in this paragraph, “attorneys’ fees” includes the allocated costs of Lender’s in-house counsel.

10.5. One Agreement . This Agreement, the Note and any related security or other agreements required by this Agreement, collectively represent the sum of the understandings and agreements between Lender and Borrower concerning this credit.

10.6. Stamps and Fees . Borrower shall pay all federal or state stamps or taxes, or other fees and charges, if any, payable or determined to be payable by reason of the execution, delivery or issuance of this Agreement, the Note, the other Loan Documents, or any security granted to Lender, or the making of any advance from time to time, whether they be payable upon execution or recurring from time to time, Borrower agrees to indemnify and hold harmless Lender against any and all liability in respect therefor.

10.7. Limitation of Interest and Other Charges . Notwithstanding any other provision contained in this Agreement, Lender does not intend to charge and Borrower shall not be required to pay any amount of interest or other fees or charges that is in excess of the maximum permitted by applicable law. Any payment in excess of such maximum shall be refunded to Borrower or credited against principal, at the option of Lender. It is the express intent hereof that Borrower not pay and Lender not receive, directly or indirectly, interest in excess of that which may be lawfully paid under applicable law including the usury laws in force in the State of Florida.

 

14

 


10.8. Notices . Unless otherwise provided in this Agreement or in another agreement between Lender and Borrower, all notices required under this Agreement shall be personally delivered or sent by first class mail, postage prepaid, or by overnight courier, to the addresses on the first page of this Agreement, or sent by facsimile to the fax numbers listed on the signature page, or to such other addresses as Lender and Borrower may specify from time to time in writing. Notices and other communications shall be effective (i) if mailed, upon the earlier of receipt or five (5) days after deposit in the U.S. mail, first class, postage prepaid, (ii) if telecopied, when transmitted, or (iii) if hand-delivered, by courier or otherwise (including telegram, lettergram or mailgram), when delivered.

10.9. Headings . Article and paragraph headings are for reference only and shall not affect the interpretation or meaning of any provisions of this Agreement.

10.10. Counterparts . This Agreement may be executed in as many counterparts as necessary or convenient, and by the different parties on separate counterparts each of which, when so executed, shall be deemed an original but all such counterparts shall constitute but one and the same agreement.

This Agreement is executed as of the date stated at the top of the first page.

 

                 
WITNESSES:       BORROWER:
     
        ODYSSEY MARINE EXPLORATION, INC.,
        a Nevada corporation
       

 

      By:  

/s/ Michael Holmes

Signature of Witness           Michael Holmes,

 

          as its Chief Financial Officer
Print or type name of Witness                

 

                  (CORPORATE SEAL)
Signature of Witness                

 

               
Print or type name of Witness                
     
        “LENDER”
     
        FIFTH THIRD BANK,
        an Ohio banking corporation

 

 

15

 


             

 

      By:  

/s/ Daniel Riley

Signature of Witness           Daniel Riley, as its Vice President

 

           
Print or type name of Witness            

 

                  (CORPORATE SEAL)
Signature of Witness            

 

           
Print or type name of Witness            
       
STATE OF FLORIDA            
COUNTY OF PINELLAS            

The foregoing instrument was acknowledged before me this      day of July, 2012, by Michael Holmes, as Chief Financial Officer of ODYSSEY MARINE EXPLORATION, INC., a Nevada corporation, on behalf of the corporation.

 

     
             Personally known  

 

             Florida Driver’s License   Notary Public
             Other Identification Produced    
     

                                         

 

 

                                         

  Print or type name of Notary
   
    (SEAL)

STATE OF FLORIDA

COUNTY OF PINELLAS

The foregoing instrument was acknowledged before me this      day of July, 2012, by Daniel Riley, as Vice President of FIFTH THIRD BANK, an Ohio banking corporation, on behalf of the corporation.

 

     
             Personally known  

 

             Florida Driver’s License   Notary Public
             Other Identification Produced    
     

                                         

 

 

                                         

  Print or type name of Notary
   
    (SEAL)

 

16

EXHIBIT 10.2

NON-REVOLVING LINE OF CREDIT PROMISSORY NOTE

 

         
$10,000,000.00       Dated: July 9, 2012

 

 

Borrower’s Promise to Pay

For value received, the undersigned, ODYSSEY MARINE EXPLORATION, INC. , a Nevada corporation, authorized to do business in the State of Florida (the “Borrower”) promises to pay to the order of FIFTH THIRD BANK , an Ohio banking corporation (the “Lender”), the principal sum of TEN MILLION DOLLARS ($10,000,000.00), together with interest on the principal balance remaining unpaid from time to time at the rates set forth below.

1. Term The term of this Note is from the date of this Note through January 31, 2013 (the “Maturity Date”).

2. Interest The Interest Rate shall be a variable rate at 500 basis points (5.00%) above the One-Month “LIBOR-Index Rate”, and shall be adjusted every month on each Interest Rate Determination Date with all such interest rate terms defined as set forth in “ADDENDUM A” attached hereto and made a part hereof. Interest will be calculated on the basis of a 360-day year for actual number of days lapsed during the calculation period.

3. Payments Principal and interest shall be due and payable as follows:

(a) Payments of accrued interest only, shall be payable monthly commencing August 6, 2012, and continuing on the same day of each month thereafter on the principal outstanding from time to time until the loan Maturity Date, at which time the outstanding indebtedness, whether principal, accrued interest or otherwise, shall be due and payable in full. If any payment on this Note becomes due and payable on a Saturday, Sunday or legal holiday under the laws of the State of Florida, the maturity thereof shall be extended to the next succeeding business day and interest thereon shall be payable at contract rate of interest during such extension.

(b) All outstanding principal shall be due and payable in full on or before January 31, 2013.

All payments shall be made at: 201 E. Kennedy Boulevard, Suite 1800, Tampa, Florida 33602, or at such other place as may be designated in writing by the Lender.

4. Borrower’s Right to Prepay This Note may be prepaid at any time without penalty.

Initials:             

 


5. Interest Limitation Interest payable under this Note or any other payment which would be considered as interest or other charge for the use or loan of money shall never exceed the highest contract rate allowed by law applicable to this loan to be charged by Lender. If the interest or other charges collected or to be collected in connection with this loan exceed the permitted limits, then: (A) any such interest or loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (B) any sums already collected from Borrower which exceeded permitted limits will be refunded. The Lender may choose to make this refund by reducing the principal owed under this Note or by making a direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial prepayment.

6. Borrower’s Failure To Pay As Required .

(A) Late Charge for Overdue Payments If the Lender has not received the full amount of any monthly payment by the end of ten (10) calendar days after it is due, Borrower will pay a late charge to the Lender equal to 5% of the overdue payment of principal and/ or interest. The payment or collection of any such late charge shall not constitute a waiver of any other right or remedy available to the Lender.

(B) Default If Borrower fails to pay the full amount of each monthly payment by the end of the ten (10) calendar days after it is due, Borrower will be in default, and upon such default by Borrower, Lender may declare the entire principal and interest then remaining unpaid to be immediately due and payable without further notice or demand, and the entire unpaid principal balance shall bear interest at the “Default Interest Rate”.. The “Default Interest Rate” shall be five percent (5%) per annum above the contract interest rate set forth above, but not exceeding 18% per annum.

(C) Acceleration If Borrower is in default after expiration of any applicable cure periods, the Lender may require Borrower to pay immediately the full amount of principal which has not been paid and all the interest that Borrower owes on that amount without further notice.

(D) No Waiver By Lender Even if, at a time when Borrower is in default, the Lender does not require Borrower to pay immediately in full as described above, the Lender will still have the right to do so if Borrower is in default at a later time.

(E) Payment of Lender’s Costs and Expenses If the Lender has required Borrower to pay immediately in full as described above, the Lender will have the right to be paid back by Borrower for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys’ fees whether suit be brought or not, and including such fees and costs in any appellate, bankruptcy or post judgment proceedings.

7. Attorneys’ Fees All parties liable for the payment of this Note agree to pay the Lender reasonable attorneys’ fees and costs, whether or not an action is brought, for the services of counsel employed after maturity or default to collect this Note or any

 

         
Initials:                2    

 


principal or interest due hereunder, or to protect the security, if any, or enforce the performance of any other agreement contained in this Note or in any instrument of security executed in connection with this loan, including costs and attorneys’ fees on any garnishment action, or for any appeal, or in any proceedings under the federal Bankruptcy Code or in any post-judgment proceedings.

8. Allocation of Payments Payments shall be applied by Lender first to any late fees or other expenses of Lender hereunder, then to accrued interest and finally to principal.

9. Giving of Notice Unless applicable law requires a different method, any notice that must be given to Borrower under this Note will be given by mailing it by first class mail or by delivering it to Borrower at 5215 West Laurel Street, Tampa, Florida 33607, or at a different address if Borrower gives the Lender prior written notice of a different address.

Any notice that must be given to the Lender under this Note will be given by mailing it by first class mail to the Lender at the address stated in Section 3 above or at a different address if Borrower is given a notice of that different address.

10. Set Off The Borrower shall have no right of set off against the Lender under this Note or under any instruments securing this Note or executed in connection with the loan evidenced hereby. The Lender, however, shall have the right, immediately and without further action by it, to set off against this Note all money owed by the Lender in any capacity to Borrower, whether or not due.

11. Obligations of Persons Under This Note If more than one person signs this Note, each person is fully obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety, or endorser of this Note is obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety, or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Lender may enforce its rights under this Note against each person individually or against all obligators together. This means that any one of them may be required to pay all of the amounts owed under this Note.

12. Waivers and Consents Borrower and any other person who has obligations under this Note waive diligence presentment, protest and demand and also notice of dishonor and non-payment of this Note.

13. This Note Secured by Security Instruments In addition to the protections given to the Lender under this Note, a Loan Agreement and Collateral Assignment protects the Lender from possible losses which might result if Borrower does not keep the promises made in this Note. That Loan Agreement and Collateral Assignment describes how and under what conditions Borrower may be required to make immediate payment in full or in part of the amounts owed under this Note.

 

         
Initials:                3    

 


14. Litigation Any litigation between the parties brought in connection with this Note or concerning the subject matter hereof prior to closing of the Loan shall only be brought in Hillsborough County, Florida. In any such litigation, the prevailing party shall be entitled to an award of its reasonable attorneys’ fees and costs. The Borrower and any guarantors further knowingly, voluntarily and intentionally, waive any right to trial by jury in respect of any litigation arising out of, under, or in connection with this Note, or the loan.

15. Business Purpose Loan The Borrower acknowledges that the proceeds of the loan are to be used for business or commercial purposes only, and not for personal, family or household purposes.

16. WAIVER OF JURY TRIAL BORROWER AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER TO MAKE THIS LOAN AND EXTENSIONS OF CREDIT TO BORROWER.

 

     
“BORROWER”
 
ODYSSEY MARINE EXPLORATION, INC.,
a Nevada corporation
   
By:  

/s/     Michael Holmes

    Michael Holmes,
    as its Chief Financial Officer
   
            (CORPORATE SEAL)

Documentary stamps in the amount required by Florida law for the Note renewed herein have been paid and stamps have been notated on the Original Note attached hereto.

ATTACHMENT :

Addendum A to Note: LIBOR Index Rate

 

4

 


Addendum A to Note

LIBOR Index Rate

SECTION 1

Definitions. As used in this Addendum, the following terms shall have the meanings set forth below:

“Bank” shall mean Fifth Third Bank and its successors and assigns.

“Borrower” shall collectively and individually refer to the maker of the attached promissory note (“Note”). The terms of this Addendum are hereby incorporated into the Note and in the event of any conflict between the terms of the Note and the terms of this Addendum, the terms of this Addendum shall control.

“Business Day” shall mean, with respect to Interest Periods applicable to the LIBOR Rate, a day on which Bank is open for business and on which dealings in U.S. dollar deposits are carried on in the London Inter-Bank Market.

“Interest Period” shall mean a period of one (1) month, provided that (i) the initial Interest Period may be less than one month, depending on the initial funding date and (ii) no Interest Period shall extend beyond the maturity date of the Note.

“Interest Rate Determination Date” shall mean the date the Note is initially funded and the first Business Day of each calendar month thereafter.

“LIBOR Rate” shall mean that rate per annum effective on any Interest Rate Determination Date which is equal to the quotient of:

(i) the rate per annum equal to the offered rate for deposits in U.S. dollars for a one (1) month period, which rate appears on that page of Bloomberg reporting service, or such similar service as determined by Bank, that displays British Bankers’ Association interest settlement rates for deposits in U.S. Dollars, as of 11:00 A.M. (London, England time) two (2) Business Days prior to the Interest Rate Determination Date; provided , that if no such offered rate appears on such page, the rate used for such Interest Period will be the per annum rate of interest determined by Bank to be the rate at which U.S. dollar deposits for the Interest Period, are offered to Bank in the London Inter-Bank Market as of 11:00 A.M. (London, England time), on the day which is two (2) Business Days prior to the Interest Rate Determination Date, divided by;

(ii) a percentage equal to 1.00 minus the maximum reserve percentages (including any emergency, supplemental, special or other marginal reserves) expressed as a decimal (rounded upward to the next 1/100th of 1%) in effect on any day to which Bank is subject with respect to any LIBOR loan pursuant to regulations issued by the Board of Governors of the Federal Reserve System with respect to eurocurrency funding (currently referred to as “eurocurrency liabilities” under Regulation D). This percentage will be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“Prime Rate” shall mean the publicly announced prime lending rate of Bank from time to time in effect, which rate may not be the lowest or best lending rate made available by Bank or, if the Note is governed by Subtitle 10 of Title 12 of the Commercial Law Article of the Annotated Code of Maryland, “Prime Rate” shall mean the Wall Street Journal Prime Rate, which is the Prime Rate published in the “Money Rates” section of the Wall Street Journal from time to time.

 

         
Initials:                5    

 


SECTION 2

Interest. The Borrower shall pay interest upon the unpaid principal balance of the Note at the LIBOR Rate plus the margin provided in the Note (which principal balance shall not include the Letter of Credit Obligations until such Letter of Credit Obligations are drawn upon and honored by Bank, and remain unreimbursed by Borrower). Interest shall be due and payable as provided in the Note and shall be calculated on the basis of a 360 day year and the actual number of days elapsed. The interest rate shall remain fixed during each month based upon the interest rate established pursuant to this Addendum on the applicable Interest Rate Determination Date.

SECTION 3

Additional Costs. In the event that any applicable law or regulation or the interpretation or administration thereof by any governmental authority charged with the interpretation or administration thereof (whether or not having the force of law) (i) shall change the basis of taxation of payments to Bank of any amounts payable by the Borrower hereunder (other than taxes imposed on the overall net income of Bank) or (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by Bank, or (iii) shall impose any other condition with respect to the Note, and the result of any of the foregoing is to increase the cost to Bank of making or maintaining the Note or to reduce any amount receivable by Bank hereunder, and Bank determines that such increased costs or reduction in amount receivable was attributable to the LIBOR Rate basis used to establish the interest rate hereunder, then the Borrower shall from time to time, upon demand by Bank, pay to Bank additional amounts sufficient to compensate Bank for such increased costs (the “Additional Costs””). A detailed statement as to the amount of such Additional Costs, prepared in good faith and submitted to the Borrower by Bank, shall be conclusive and binding in the absence of manifest error.

SECTION 4

Unavailability Of Dollar Deposits. If Bank determines in its sole discretion at any time (the “Determination Date”) that it can no longer make, fund or maintain LIBOR based loans for any reason, including without limitation illegality, or the LIBOR Rate cannot be ascertained or does not accurately reflect Bank’s cost of funds, or Bank would be subject to Additional Costs that cannot be recovered from the Borrower, then Bank will notify the Borrower and thereafter will have no obligation to make, fund or maintain LIBOR based loans. Upon such Determination Date the Note will be converted to a variable rate loan based upon the Prime Rate. Thereafter the interest rate on the Note shall adjust simultaneously with any fluctuation in the Prime Rate.

 

     
ODYSSEY MARINE EXPLORATION,
INC., a Nevada corporation
   
By:  

/s/ Michael Holmes

    Michael Holmes, as its Chief Financial Officer

 

6

EXHIBIT 31.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Gregory P. Stemm, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Odyssey Marine Exploration, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: August 1, 2012

 

 

/s/ Gregory P. Stemm

Gregory P. Stemm
Chief Executive Officer

EXHIBIT 31.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER

PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Michael J. Holmes, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Odyssey Marine Exploration, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 
Date: August 1, 2012
 

/s/ Michael J. Holmes

Michael J. Holmes
Chief Financial Officer

EXHIBIT 32.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

ODYSSEY MARINE EXPLORATION, INC.

PURSUANT TO 18 U.S.C. SECTION 1350

I hereby certify that, to the best of my knowledge, the quarterly report on Form 10-Q of Odyssey Marine Exploration, Inc. for the period ending June 30, 2012:

(1) complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) the information contained in the Report fairly presents, in all material aspects, the financial condition and results of operations of Odyssey Marine Exploration, Inc.

 

 

/s/ Gregory P. Stemm

Gregory P. Stemm
Chief Executive Officer
August 1, 2012

A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to Odyssey Marine Exploration, Inc. and will be retained by Odyssey Marine Exploration, Inc. and furnished to the Securities and Exchange Commission upon request.

EXHIBIT 32.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER

ODYSSEY MARINE EXPLORATION, INC.

PURSUANT TO 18 U.S.C. SECTION 1350

I hereby certify that, to the best of my knowledge, the quarterly report on Form 10-Q of Odyssey Marine Exploration, Inc. for the period ending June 30, 2012:

(1) complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) the information contained in the Report fairly presents, in all material aspects, the financial condition and results of operations of Odyssey Marine Exploration, Inc.

 

 

/s/ Michael J. Holmes

Michael J. Holmes
Chief Financial Officer
August 1, 2012

A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to Odyssey Marine Exploration, Inc. and will be retained by Odyssey Marine Exploration, Inc. and furnished to the Securities and Exchange Commission upon request.