UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): April 16, 2020

 

 

ODYSSEY MARINE EXPLORATION, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Nevada   001-31895   84-1018684

(State or Other Jurisdiction

of Incorporation)

  (Commission File Number)  

(IRS Employer

Identification No.)

205 S. Hoover Blvd., Suite 210

Tampa, Florida 33609

(Address of Principal Executive Offices and Zip Code)

Registrant’s telephone number, including area code: (813) 876-1776

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange on which registered

Common Stock,

par value $0.0001 per share

  OMEX   NASDAQ Capital Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging Growth Company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 1.01.

Entry Into a Material Definitive Agreement.

The disclosure set forth below under Item 2.03 (Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant) is hereby incorporated by reference into this Item 1.01.

 

Item 2.03

Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

Odyssey Marine Exploration, Inc. (“Odyssey”) applied to Fifth Third Bancorp (“Fifth Third”) under the Small Business Administration (the “SBA”) Paycheck Protection Program of the Coronavirus Aid, Relief and Economic Security Act of 2020 (the “CARES Act”) for a loan of $370,400 (the “Loan”), and the Loan was made on April 16, 2020. Odyssey intends to use the proceeds of the Loan for covered payroll costs, rent and utilities in accordance with the relevant terms and conditions of the CARES Act.

The Loan, which is evidenced by promissory note issued by Odyssey (the “Promissory Note”), has a two-year term, matures on April 16, 2022, and bears interest at a rate of 0.98% per annum. Monthly principal and interest payments, less the amount of any potential forgiveness (discussed below), will commence seven months from the month this Note is dated. Odyssey did not provide any collateral or guarantees for the Loan, nor did Odyssey pay any facility charge to obtain the Loan. The Promissory Note provides for customary events of default, including, among others, those relating to failure to make payment, bankruptcy, breaches of representations and material adverse effects. Odyssey may prepay the principal of the Loan at any time without incurring any prepayment charges.

The Loan may be forgiven partially or fully if the Loan proceeds are used for covered payroll costs, rent and utilities, provided that such amounts are incurred during the eight-week period that commenced on April 16, 2020, and at least 75% of any forgiven amount has been used for covered payroll costs. Any forgiveness of the Loan will be subject to approval by the SBA and Fifth Third and will require Odyssey to apply for such treatment in the future.

 

Item 3.01

Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

On April 16, 2020, Odyssey was notified by the Listing Qualifications Staff of The NASDAQ Stock Market LLC (“NASDAQ”) that Odyssey did not satisfy the minimum $35.0 million market value of listed securities requirement for the past 30 consecutive business days, as required under NASDAQ Listing Rule 5550(b)(2) for the Nasdaq Capital Market. In accordance with the NASDAQ Listing Rules, Odyssey has been provided a 180 calendar day period, ending October 13, 2020, to regain compliance with the market capitalization requirement. In order to achieve compliance, Odyssey must evidence a market value of listed securities of at least $35 million for a minimum of ten consecutive business days.

The notice has no present impact on the listing of Odyssey’s securities on NASDAQ.

 

Item 5.03.

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On April 21, 2020, the board of directors (the “Board”) Odyssey amended the first paragraph of Article I, Section 6 (Time) of Odyssey’s second amended and restated bylaws. Because of the restrictions on large gatherings and the social distancing requirements resulting from the COVID-19 pandemic, the Board amended the bylaws to provide that the 2020 annual meeting of stockholders must be held within 16 months of the 2019 annual meeting, an extension of three months from the requirement that would otherwise apply.


Item 8.01

Other Events.

Odyssey is relying on the U.S. Securities and Exchange Commission’s Order under Section 36 of the Securities Exchange Act of 1934, as amended, Granting Exemptions From Specified Provisions of the Exchange Act and Certain Rules Thereunder, dated March 25, 2020 (Release No. 34-88465 ) (the “Order”), to delay the filing of its Definitive Proxy Statement (the “Proxy Statement”) relating to its annual meeting of stockholders to be held in 2020, including the information omitted from the Odyssey’s Annual Report on Form 10-K for the year ended December 31, 2019, pursuant to General Instruction G(3) of Form 10-K (the “Part III Information”), which it expects to include in the Proxy Statement, due to the circumstances related to the COVID-19 pandemic. In particular, the pandemic has caused Odyssey’s office in Tampa, Florida to close due to a stay at home order in place for Florida residents and issued a work from home policy to protect its employees and their families from potential virus transmission among co-workers. The office closures and work from home policy have in turn caused a delay in the preparation and filing of the Proxy Statement, and Odyssey is working on a remote basis to complete and file the Proxy Statement, including the Part III Information, as quickly as possible. Notwithstanding the foregoing, Odyssey expects to file the Proxy Statement, including the Part III Information, no later than June 14, 2020 (which is 45 days from the Proxy Statement’s original filing deadline of April 29, 2020).

 

Item 9.01.

Financial Statements and Exhibits.

 

  (a)

Financial Statements of Businesses Acquired.

Not applicable.

 

  (b)

Pro Forma Financial Information.

Not applicable.

 

  (c)

Shell Company Transactions.

Not applicable.

 

  (d)

Exhibits.

 

  3.1      Amendment to Second Amended and Restated Bylaws.
  10.1      Note and Loan Agreement dated April 16, 2020 between Odyssey Marine Exploration, Inc. and Fifth Third Bancorp.


SIGNATURES

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

 

    ODYSSEY MARINE EXPLORATION, INC.
Dated: April 22, 2020     By:   /s/ Jay A. Nudi
      Jay A. Nudi
      Chief Financial Officer
EX-3.1

Exhibit 3.1

The first paragraph of Article I, Section 6 of the Second Amended and Restated Bylaws of Odyssey Marine Exploration, Inc. was amended by deleting it in its entirety and inserting in lieu thereof the following:

Time. The annual meeting shall be held on the date and at the time fixed, from time to time by the directors; provided, that each annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting, except that that the annual meeting to be held in 2020 shall be held on a date within sixteen months after the date of the annual meeting held in 2019. A special meeting shall be held on the date and at the time fixed by the directors.”

# # # # # # #

EX-10.1

Exhibit 10.1

 

 

 

LOGO    U.S. Small Business Administration
  
   NOTE
  
  
  

 

 

 

SBA Loan #   
SBA Loan Name    Odyssey Marine Exploration, Inc.
Date    April 16, 2020
Loan Amount    $370,400.00
Interest Rate    1.00%; Fixed Rate
Borrower    Odyssey Marine Exploration, Inc. a Nevada Corporation
Operating Company    N/A
Lender    Fifth Third Bank, National Association, a federally chartered institution

 

1.

PROMISE TO PAY:

In return for the Loan, Borrower promises to pay to the order of Lender the amount of

 

Three Hundred Seventy Thousand Four Hundred and 00/100

   Dollars,

interest on the unpaid principal balance, and all other amounts required by this Note.

 

2.

DEFINITIONS:

“Collateral” means any property taken as security for payment of this Note or any guarantee of this Note.

“Guarantor” means each person or entity that signs a guarantee of payment of this Note.

“Loan” means the loan evidenced by this Note.

“Loan Documents” means the documents related to this loan signed by Borrower, any Guarantor, or anyone who pledges collateral.

“SBA” means the Small Business Administration, an Agency of the United States of America.

 

SBA Form 147 (06/03/02) Version 4.1    Page 1/6


3.

PAYMENT TERMS:

 

Borrower must make all payments at the place Lender designates. The payment terms for this Note are:

Repayment terms:

The interest rate is 1% per year. The interest rate may only be changed in accordance with SOP 50 10.

Borrower must pay principal and interest payments of $20,741.07 every month, beginning seven months from the month this Note is dated; payments must be made on the 1st calendar day in the months they are due.

Lender will apply each installment first to pay interest accrued to the day Lender receives the payment, then to bring principal current, then to pay any late fees, and will apply any remaining balance to reduce principal.

Loan Prepayment:

Notwithstanding any provision in this Note to the contrary:

Borrower may prepay this Note. Borrower may prepay 20 percent or less of the unpaid principal balance at any time without notice. If Borrower prepays more than 20 percent and the Loan has been sold on the secondary market, Borrower must:

a. Give Lender written notice;

b. Pay all accrued interest; and

c. If this prepayment is received less than 21 days from the date Lender receives the notice, pay an amount equal to 21 days’ interest from the date lender receives the notice, less any interest accrued during the 21 days and paid under subparagraph b., above.

If Borrower does not prepay within 30 days from the date Lender receives the notice, Borrower must give Lender a new notice.

All remaining principal and accrued interest is due and payable 2 years and 0 months from date of Note.

 

SBA Form 147 (06/03/02) Version 4.1    Page 2/6


4.

DEFAULT:

Borrower is in default under this Note if Borrower does not make a payment when due under this Note, or if Borrower or Operating Company:

 

  A.

Fails to do anything required by this Note and other Loan Documents;

 

  B.

Defaults on any other loan with Lender;

 

  C.

Does not preserve, or account to Lender’s satisfaction for, any of the Collateral or its proceeds;

 

  D.

Does not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or SBA;

 

  E.

Makes, or anyone acting on their behalf makes, a materially false or misleading representation to Lender or SBA;

 

  F.

Defaults on any loan or agreement with another creditor, if Lender believes the default may materially affect Borrower’s ability to pay this Note;

 

  G.

Fails to pay any taxes when due;

 

  H.

Becomes the subject of a proceeding under any bankruptcy or insolvency law;

 

  I.

Has a receiver or liquidator appointed for any part of their business or property;

 

  J.

Makes an assignment for the benefit of creditors;

 

  K.

Has any adverse change in financial condition or business operation that Lender believes may materially affect Borrower’s ability to pay this Note;

 

  L.

Reorganizes, merges, consolidates, or otherwise changes ownership or business structure without Lender’s prior written consent; or

 

  M.

Becomes the subject of a civil or criminal action that Lender believes may materially affect Borrower’s ability to pay this Note.

 

5.

LENDER’S RIGHTS IF THERE IS A DEFAULT:

Without notice or demand and without giving up any of its rights, Lender may:

 

  A.

Require immediate payment of all amounts owing under this Note;

 

  B.

Collect all amounts owing from any Borrower or Guarantor;

 

  C.

File suit and obtain judgment;

 

  D.

Take possession of any Collateral; or

 

  E.

Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without advertisement.

 

6.

LENDER’S GENERAL POWERS:

Without notice and without Borrower’s consent, Lender may:

 

  A.

Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it chooses;

 

  B.

Incur expenses to collect amounts due under this Note, enforce the terms of this Note or any other Loan Document, and preserve or dispose of the Collateral. Among other things, the expenses may include payments for property taxes, prior liens, insurance, appraisals, environmental remediation costs, and reasonable attorney’s fees and costs. If Lender incurs such expenses, it may demand immediate repayment from Borrower or add the expenses to the principal balance;

 

  C.

Release anyone obligated to pay this Note;

 

  D.

Compromise, release, renew, extend or substitute any of the Collateral; and

 

  E.

Take any action necessary to protect the Collateral or collect amounts owing on this Note.

 

SBA Form 147 (06/03/02) Version 4.1    Page 3/6


7.

WHEN FEDERAL LAW APPLIES:

When SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA regulations. Lender or SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability. As to this Note, Borrower may not claim or assert against SBA any local or state law to deny any obligation, defeat any claim of SBA, or preempt federal law.

 

8.

SUCCESSORS AND ASSIGNS:

Under this Note, Borrower and Operating Company include the successors of each, and Lender includes its successors and assigns.

 

9.

GENERAL PROVISIONS:

 

  A.

All individuals and entities signing this Note are jointly and severally liable.

 

  B.

Borrower waives all suretyship defenses.

 

  C.

Borrower must sign all documents necessary at any time to comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain Lender’s liens on Collateral.

 

  D.

Lender may exercise any of its rights separately or together, as many times and in any order it chooses. Lender may delay or forgo enforcing any of its rights without giving up any of them.

 

  E.

Borrower may not use an oral statement of Lender or SBA to contradict or alter the written terms of this Note.

 

  F.

If any part of this Note is unenforceable, all other parts remain in effect.

 

  G.

To the extent allowed by law, Borrower waives all demands and notices in connection with this Note, including presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses based upon any claim that Lender did not obtain any guarantee; did not obtain, perfect, or maintain a lien upon Collateral; impaired Collateral; or did not obtain the fair market value of Collateral at a sale.

 

SBA Form 147 (06/03/02) Version 4.1    Page 4/6


10.

STATE-SPECIFIC PROVISIONS:

 

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

 

SBA Form 147 (06/03/02) Version 4.1    Page 5/6


11.

BORROWER’S NAME(S) AND SIGNATURE(S):

By signing below, each individual or entity becomes obligated under this Note as Borrower.

 

Odyssey Marine Exploration, Inc. a Nevada Corporation                          

/s/ Jay Nudi

     

April 17, 2020

  
Signature of Authorized Representative of Borrower                Date   
Jay Nudi       Chief Financial Officer   
Name of Authorized Representative of Borrower       Title   

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

 

SBA Form 147 (06/03/02) Version 4.1    Page 6/6