EXHIBIT 3.1
CERTIFICATEOF DESIGNATION
OF
SERIES F CONVERTIBLE PREFERRED STOCK
OF
ODYSSEY MARINE EXPLORATION, INC.
Pursuant to Section 78.1955 of the
Nevada Revised Statutes
The undersigned does hereby certify that pursuant to the authority conferred upon the Board of Directors ofODYSSEY MARINE EXPLORATION, INC., a Nevada corporation (the “Corporation”), by its Articles of Incorporation, as amended, and Section 78.315 of the Nevada Revised Statutes, the Board of Directors, by unanimous written consent, duly approved and adopted the following resolution (referred to herein as the “Resolution”):
RESOLVED, that pursuant to the authority conferred on the Board of Directors of the Corporation (“Board of Directors”) by Article IV of the Articles of Incorporation of the Corporation (the “Articles”), the Board of Directors does hereby create and authorize for issuance a series of preferred stock, par value $0.0001 per share, of the Corporation, consisting of up to thirty (30) shares, and hereby fixes the voting powers, designations, preferences, and relative, participating, optional and other special rights, and qualifications, limitations, and restrictions thereof, of the shares of such series, in addition to those set forth in the Articles, as follows:
SECTION 1. DESIGNATION OF SERIES F PREFERRED STOCK.The shares of the series of preferred stock created and authorized by this Resolution shall be designated “Series F Convertible Preferred Stock” (the “Series F Preferred Stock”). The total number of authorized shares constituting the Series F Preferred Stock shall be thirty (30). The number of shares constituting this series of preferred stock of the Corporation may be increased or decreased at any time, from time to time, in accordance with applicable law up to the maximum number of shares of preferred stock authorized under the Articles, less all shares at the time authorized of any other series of preferred stock of the Corporation;provided, however, that no decrease shall reduce the number of shares of this series to a number less than that of the then-outstanding shares of Series F Preferred Stock. The stated par value of the Series F Preferred Stock shall be $0.0001 per share. Shares of the Series F Preferred Stock shall be dated the date of issue.
SECTION 2.DIVIDEND RIGHTS.
2.1Dividend Payment. The holders of shares of Series F Preferred Stock shall be entitled to receive, out of assets of the Corporation legally available therefor, dividends only when, as, and if declared by the Board of Directors, payable at the time of payment of dividends on the common stock, par value $0.0001 per share (the “Common Stock”), of the Corporation, on an as-if-converted basis.
2.2Dividends or Certain Other Distributions on Common Stock. While any shares of Series F Preferred Stock are outstanding, no dividend or other distribution
(other than a dividend or distribution paid in Common Stock or other capital stock of the Corporation ranking senior to the Series F Preferred Stock) shall be declared, paid, or set aside for payment on any class of the Common Stock or on any other capital stock of the Corporation ranking junior to the Series F Preferred Stock as to dividends, nor shall any Common Stock or capital stock of the Corporation ranking junior to the Series F Preferred Stock be redeemed, purchased, retired, or otherwise acquired directly or indirectly by the Corporation for any consideration (or any monies paid for the account of, or set aside for payment for, or paid to or made available for a sinking or similar fund for, such purposes), except by conversion into or exchange of shares of Common Stock or other capital stock of the Corporation ranking junior to the Series F Preferred Stock as to dividends, unless, in each case, dividends on all outstanding shares of the Series F Preferred Stock contemporaneously are declared and a sum of money sufficient for payment have been set aside therefor.
SECTION 3.LIQUIDATION RIGHTS AND RANK. In the event of any liquidation, dissolution, or winding up of the affairs of the Corporation, whether voluntary or involuntary (a “Liquidation”), each holder of the Series F Preferred Stock then outstanding shall be entitled to receive out of the assets of the Corporation legally available for distribution to its shareholders (whether representing capital or surplus), before any payment or distribution shall be made on the Common Stock or any capital stock of the Corporation ranking junior to the Series F Preferred Stock as to the payment of dividends or the distribution of assets, an amount equal to (a) $5.40 multiplied by (b) the number of shares of Common Stock into which such holder’s Series F Preferred Stock could then be converted (assuming the giving of notice and passage of time, as contemplated in Section 5 hereof). If, upon any Liquidation of the Corporation, the assets of the Corporation, or the proceeds of those assets, available for distribution shall be insufficient to pay in full the amount of the Liquidation Preference, then all of the assets available shall be distributed among the holders of the Series F Preferred Stock. After the payment in full of the Liquidation Preference has been made to the holders of the Series F Preferred Stock, such holders shall not be entitled to any further participation in any distribution of the assets of the Corporation in respect of the shares of Series F Preferred Stock owned by such holders. For purposes of this Section 3, a sale, conveyance, exchange, or transfer of all or substantially all of the properties or assets of the Corporation for cash, securities, or other consideration, or the consolidation, merger, or other business combination of the Corporation with one or more corporations, shall be deemed to be a Liquidation. The Series F Preferred Stock shall, with respect to the various rights set forth in this Section 3, rank (a) junior to the Company’s Series E Convertible Preferred Stock, par value $0.0001 per share, the Company’s Series D Convertible Preferred Stock, par value $0.0001 per share, and to all series of Preferred Stock issued by the Company the terms of which specifically provide that such capital stock ranks senior to the Series F Preferred Stock; (b) senior to all other series of Preferred Stock ranking junior to the Series F Preferred Stock and to any other capital stock that is not Preferred Stock; and (c) pari passu with any series of Preferred Stock of the Company hereafter created specifically ranking on parity with the Series F Preferred Stock.
SECTION 4.VOTING RIGHTS. The holders of Series F Preferred Stock shall not be entitled to (a) any voting rights with respect to the Series F Preferred Stock or (b) notice of any meeting of the shareholders of the Corporation, except in each case to the extent specifically required by Nevada law.
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SECTION 5. CONVERSION RIGHTS.
5.1Conversion of Series F Preferred Stock Into Common Stock. At any time and from time to time after the issuance of the Series F Preferred Stock, any holder thereof may convert any or all of the shares of Series F Preferred Stock held by such holder at the ratio of one hundred thousand (100,000) shares of Common Stock for every one (1) share of Series F Preferred Stock converted (the “Conversion Rate”),provided, however, the Company shall not effect any conversion of the Series F Preferred Stock or any other preferred stock or warrant held by a holder of Series F Preferred Stock (a “Holder”), and no such Holder shall have the right to convert any Series F Preferred Stock or any other preferred stock or warrant held by such Holder, to the extent that after giving effect to such conversion, the beneficial owner of such shares (together with such beneficial owner’s affiliates) would beneficially own in excess of 9.9% (“Maximum Percentage”) of the shares of the Common Stock outstanding immediately after giving effect to such conversion or exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by a beneficial owner of Series F Preferred Stock held by such beneficial owner and its affiliates shall include the number of shares of Common Stock issuable upon conversion of the Series F Preferred Stock, any other preferred stock and warrant held by such Holder with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i) conversion of the remaining, nonconverted Series F Preferred Stock beneficially owned by such beneficial owner and its affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such beneficial owner and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended. For purposes of this Section 5.1, in determining the number of outstanding shares of Common Stock a Holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-Q, Form 10-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or its transfer agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of any Holder, the Company shall within two business days confirm orally and in writing to any such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Series F Preferred Stock, any other preferred stock and warrant held by a Holder, by such Holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.9% specified in such notice; provided that (i) any such increase will not be effective until the sixty-first (61st) day after such notice is delivered to the Company, and (ii) any such increase or decrease will apply only to the Holder providing such written notice and not to any other Holder.
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5.2Conversion Procedure.
(a) Notice and Surrender of Certificates. Any holder of shares of Series F Preferred Stock desiring to convert any portion thereof into shares of Common Stock shall give written notice that such holder elects to convert a stated number of Series F Preferred Stock into Common Stock (the “Conversion Notice”) and shall surrender each certificate representing the Series F Preferred Stock to be converted, duly executed in favor of the Corporation or in blank accompanied by proper instruments of transfer, at the principal business office of the Corporation (or at such other place as may be designated by Corporation). The Conversion Notice shall set forth the name or names (with the address or addresses) in which the certificate or certificates for shares of the Common Stock shall be issued.
(b) Effective Time of Conversion. To the extent permitted by law, the conversion of the Series F Preferred Stock pursuant to this Section 5.2 into Common Stock shall be deemed to have been effected immediately prior to the close of business on the date on which all the conditions in Section 5.2(a) of this Resolution have been satisfied, and at such time the rights of the holder of such shares of Series F Preferred Stock so converted shall cease, and the person or persons in whose name any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become the holder or holders of record of the share of Common Stock represented thereby. The date on which the conversion of the Series F Preferred Stock pursuant to this Section 5.2 into Common Stock shall be deemed to have been effected is hereinafter referred to as the “Effective Conversion Date”. Except as otherwise provided herein, no payment or adjustment shall be made in respect of the Common Stock delivered upon conversion of the Series F Preferred Stock.
(c) Issuance of Common Stock Certificates. As soon as practicable after the Effective Conversion Date, the Corporation shall issue and deliver, or cause to be issued and delivered, to the converting holder a certificate or certificates for the number of whole shares of Common Stock issuable by reason of the conversion of such shares of Series F Preferred Stock, registered in such name or names and such denominations as the converting holder has specified, subject to compliance with applicable laws to the extent such designation shall involve a transfer. In case the number of shares of Series F Preferred Stock represented by the certificate or certificates surrendered for conversion pursuant to this Section 5.2 exceeds the number of shares converted, the Corporation shall, upon such conversion, execute and deliver to the holder thereof a new certificate for the number of shares of Series F Preferred Stock represented by the certificate or certificates surrendered that are not to be converted.
5.3Adjustments to Conversion Rate.
(a) Subdivision or Combination of Common Stock. If the Corporation at any time: (i) pays a dividend or makes a distribution on its Common Stock in shares of Common Stock, (ii) subdivides (by stock split, recapitalization, or otherwise) its outstanding Common Stock into a greater number of shares, or (iii) combines (by reverse stock split or otherwise) its outstanding Common Stock into a smaller number of shares, then the Conversion Rate in effect at the time of the record date for such dividend or distribution, or the effective date of such subdivision or combination, shall be proportionately adjusted immediately thereafter so that the holder of any shares of the Series F Preferred Stock surrendered for conversion after such event will receive the kind
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and amount of shares that such holder would have received if the Series F Preferred Stock had been converted immediately prior to the happening of the event. Such adjustment shall be made successively whenever any of the events referred to in this Section 5.3(a) occur.
(b)Issuance of Certain Rights, Warrants, or Options. If the Corporation shall issue or grant any rights, warrants, or options to holders of its Common Stock, as a class, entitling all holders of the class to subscribe for or to purchase Common Stock at a price per share less than the Current Market Price (as defined in Section 5.3(e) hereof) at the record date for the determination of shareholders entitled to receive such rights, warrants, or options, the Conversion Rate will be reduced so that it will be the amount determined by multiplying (i) the Conversion Rate existing prior to the record date for the issuance of the rights, warrants, or options by (ii) a fraction of which (x) the numerator is the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate exercise price of all rights, warrants, or options would purchase at the Current Market Price at the record date, and (y) the denominator is the number of shares of Common Stock outstanding on the record date for the issuance of the rights, warrants, or options, plus the number of additional shares of Common Stock issuable on the exercise of all rights, warrants, or options. Such adjustment shall be made successively whenever such rights, warrants, or options are issued or granted, and will become effective immediately.
(c)Certain Dividends and Distributions on Common Stock. In the event that the Corporation shall pay or make a dividend or other distribution to all holders of the Common Stock as a class payable in securities, evidences of indebtedness, assets, or other property (excluding cash dividends or distributions of cash payable from retained earnings of the Corporation, dividends payable in Common Stock, or distributions of rights, warrants, or options referred to in Section 5.3(b) hereof, but including, without limitation, shares of any other class of the Corporation’s capital stock or securities convertible into or exchangeable for Common Stock or any other class of the Corporation’s capital stock), then, in each such case, the Conversion Rate will be reduced so that it will equal the amount determined by multiplying (i) the Conversion Rate in effect immediately prior to the record date for the distribution by (ii) a fraction of which (x) the numerator is the Current Market Price of a share of Common Stock on the record date for the distribution, less the then fair market value (as determined by the Board of Directors, whose determination, if made in good faith, will be conclusive) of the capital stock, evidence of indebtedness, assets, or other property which are distributed with respect to one (1) share of Common Stock and (y) the denominator is the Current Market Price of one (1) share of Common Stock on that record date. Each adjustment shall be made successively whenever such distribution is made and shall be effective immediately after the record date for the distribution to shareholders entitled to receive the distribution.
(d)Merger or Consolidation. If there is a reorganization, or a merger or consolidation of the Corporation 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 the assets of the Corporation, on a consolidated basis (except for sales or dispositions to a wholly owned subsidiary of the Corporation), upon any subsequent conversion of the Series F Preferred Stock, each holder of the Series F Preferred Stock will be entitled to receive the kind and amount of securities, cash, and other property or assets which the holder would have received if the holder had converted the shares of
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Series F Preferred Stock into Common Stock in accordance with Section 5 hereof immediately prior to the first of these events and had retained all the securities, cash, and other property or assets received as a result of those events.
(e)Certain Definitions.
(i) The term “Market Price” of the Common Stock shall mean, on any date specified herein: (A) the last reported sale price of the Common Stock on the principal stock exchange on which the Common Stock is then listed, or (B) if the Common Stock is not listed or admitted to trading on a national stock exchange, the last reported sales price of the Common Stock on the principal automated securities price quotation system on which sales prices of the Common Stock is reported, or (C) if the Common Stock is not reported on an automated quotation system, the mean of the high bid and low asked price quotations for the Common Stock as reported by Pink Sheets LLC. If the Common stock is not traded or quoted as described in any of Sections 5.3(e)(i)(A), (B), or (C) hereof, the Current Market Price of the Common Stock on a day will be the fair market value of the Common Stock on that day as determined by the Board of Directors.
(ii) For the purpose of any computation under this Section 5, the “Current Market Price” of the Common Stock on any date will be the average Market Price of the Common Stock on each of the ten consecutive Business Days preceding the date of the computation.
(iii) The term “Business Day” means any day other than a Saturday. Sunday, or other day on which the commercial banks in Tampa, Florida are authorized or required by law or executive order to close.
(f) De Minimus Adjustments. No adjustment in the Conversion Rate will be made unless the adjustment would require a change of at least one percent (1.0%) in the Conversion Rate;provided, however, that any adjustments that are not made because of this Section 5.3(i) will be carried forward and taken into account in any subsequent adjustment; andprovided, further, that any adjustment must be made in accordance with this Section 5 (without regard to this Section 5.3(i)) not later than the time the adjustment may be required in order to preserve the tax-free nature, if any, of a distribution to the holders of shares of the Common Stock. All calculations under this Section 5 will be made to the nearest full share.
5.4 Notices.
(a) Notice of Conversion Rate Adjustments. Upon any adjustment of the Conversion Rate pursuant to the provisions of Section 5.3 of this Resolution, the Corporation shall promptly give written notice thereof to each holder of record of the Series F Preferred Stock. Such notice shall set forth (i) the adjusted Conversion Rate, (ii) a description of the events which caused the adjustment, (iii) a description of the method of calculation of the adjustment, and (v) the date on which the adjustments become effective.
(b)Other Notices. If any of the following shall occur:
(i) the Corporation shall declare a dividend or authorize any other distribution on its Common Stock, including those of the type identified in Section 5.3(a) hereof;
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(ii) the Corporation shall authorize the granting to the holders of its Common Stock of rights, warrants, or options to subscribe for or purchase any securities or any other similar rights;
(iii) any reorganization, reclassification, or similar change of the Common Stock, or a merger or consolidation, or the sale, conveyance, exchange, or transfer of all or substantially all of the assets of the Corporation, or
(iv) the voluntary or involuntary Liquidation of the Corporation;
then, and in any such case, the Corporation shall deliver to each holder of record of the Series F Preferred Stock written notice thereof at least twenty (20) days prior to the earliest applicable date specified below with respect to which notice is to be given, which notice shall state the following: (x) the date on which a record is to be taken for the purpose of such dividend, distribution, or rights, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, or rights are to be determined; (y) the date on which such reclassification, reorganization, merger or consolidation, or sale, conveyance, exchange, or transfer of all or substantially all of the assets of the Corporation, or Liquidation, is expected to become effective, and the date, if any, as of which the holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification, reorganization, merger or consolidation, or sale, conveyance, exchange, or transfer or Liquidation; and (z) if any matters referred to in the foregoing clauses (x) and (y) are to be voted upon by holders of Common Stock the date as of which those shareholders to be entitled to vote are to be determined.
5.5Reservation of Shares of Common Stock. The Corporation shall at all times reserve and keep available out of its authorized and unissued shares of Common Stock, such number of shares of its Common Stock as shall from time to time be sufficient to effect the conversion of all shares of the Series F Preferred Stock from time to time outstanding, but shares of Common Stock held in the treasury of the Corporation may, at the discretion of the Corporation, be delivered upon any conversion of the Series F Preferred Stock.
5.6Issue and Other Taxes. The Corporation shall pay any and all documentary stamp or similar issue or other taxes that may be payable in respect of any issue or delivery of shares of Common Stock on conversion of Series F Preferred Stock pursuant hereto. The Corporation, however, shall not be required to pay any tax that may be payable in respect of any transfer involved in the issue and delivery of any shares of Common Stock in a name other than that in which the shares of the Series F Preferred Stock so converted were registered and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.
5.7Closing of Corporate Books. The Corporation shall not close its books against the transfer of the Series F Preferred Stock or of any shares of Common Stock issued or issuable upon conversion of Series F Preferred Stock in any manner that interferes with the timely conversion of the Series F Preferred Stock.
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SECTION 6.STATUS OF CONVERTED STOCK. All shares of Series F Preferred Stock converted into Common Stock shall be retired and cancelled and shall be restored to the status of authorized but unissued shares of preferred stock of the Corporation, without designation as to series, and may thereafter be issued.
SECTION 7.PRE-EMPTIVE RIGHTS. The holders of the Series F Preferred Stock will not have any pre-emptive right, in their capacity as such, to subscribe for or to purchase any shares or any other securities that may be issued by the Corporation.
SECTION 8.MISCELLANEOUS.
8.1 Observance of Terms. The Corporation, whether by amendment of its Articles of Incorporation, or through any reorganization, transfer of assets, merger, liquidation, issue or sale of securities or any other voluntary action, will not avoid or seek to avoid the observance or performance of any of the terms to be observed hereunder by the Corporation, but at all times in good faith will assist in the carrying out of all such action as may be necessary or appropriate in order to protect the conversion rights of the holders of the Series F Preferred Stock against impairment
8.2Amendment and Waiver. No amendment, modification, or waiver shall be binding or effective with respect to any provision of this Resolution without the prior affirmative vote or written consent of the holders of a majority of the shares of Series F Preferred Stock outstanding at the time the action is taken;provided, however, no amendment, modification, or waiver may, without the consent of each holder of Series F Preferred Stock affected thereby: (a) reduce the Liquidation Preference of, or dividend on, the Series F Preferred Stock; (b) change the place or currency of payment of the Liquidation Preference of, or dividend on, any Series F Preferred Stock; (c) impair the right to institute suit for the enforcement of any payment on, or with respect to, the Series F Preferred Stock; (d) adversely affect the right to convert the Series F Preferred Stock; or (e) reduce the percentage of outstanding Series F Preferred Stock necessary to modify or amend the terms thereof or to grant waivers with respect thereto.
8.3 Notices. Except as otherwise expressly provided in this Resolution, whenever a notice or other communication is required or permitted to be given to holders of Series F Preferred Stock, the notice or other communication shall be deemed to be properly given if deposited into the United States mail, postage prepaid, addressed to the person(s) shown on the books of the Corporation as the holder(s) of the shares at the addresses as they appear on the books of the Corporation, as of a record date or dates determined in accordance with the Articles and Bylaws of the Corporation, this Resolution and applicable law, as in effect from time to time.
8.4 Limited Rights. Except as may be otherwise required by applicable law, the Series F Preferred Stock shall not have any designations, preferences, limitations, or relative rights, other than those specifically set forth in this Resolution and in the Articles.
8.5 Headings. The headings and various subdivisions in this Resolution are for convenience only and will not affect the meaning or interpretation of any of the provisions of this Resolution.
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RESOLVED FURTHER, that the Chief Executive Officer, the President, and the Secretary of the Corporation hereby are authorized and directed to prepare, execute, verify, file and record a certificate of designation of preferences in accordance with the foregoing resolutions and the provisions of the Nevada Revised Statutes.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation to be signed by its Chief Executive Officer and attested by its Secretary on December 14, 2007.
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| ODYSSEY MARINE EXPLORATION, INC. |
| |
| By: | | /s/ Michael J. Holmes |
| | Michael J. Holmes |
| | Chief Financial Officer |
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| Attested to by: |
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/s/ David A. Morris |
| David A. Morris |
| Secretary |
| | |
STATE OF FLORIDA | | ) |
| |
COUNTY OF HILLSBOROUGH | | ) |
The foregoing instrument was acknowledged before me on December 14, 2007, by Michael J. Holmes, in his capacity as Chief Financial Officer of, and David A. Morris, in his capacity as Secretary of, Odyssey Marine Exploration, Inc., a Nevada corporation, on behalf of the corporation. Each of them is personally known to me.
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/s/ Penny Cubbage Greene |
| Signature of Notary Public |
| State of Florida |
|
| My Commission Expires:December 9, 2008 |
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