EXHIBIT 10.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OR UNLESS
SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT.
WARRANT TO PURCHASE
COMMON STOCK OF
ODYSSEY MARINE EXPLORATION, INC.
Void After _______________, 2008
THIS WARRANT is issued to __________________, a ______________ (the
"Holder"), by ODYSSEY MARINE EXPLORATION, INC., a Nevada corporation (the
"Company"), on _________, 2006 (the "Warrant Issue Date"). This Warrant is
issued pursuant to the Securities Purchase Agreement of even date herewith
(the "Purchase Agreement") between the Holder and the Company.
Section 1. Purchase of Shares.
(a) Number of Shares. Subject to the terms and conditions hereinafter
set forth and set forth in the Purchase Agreement, the Holder is entitled,
upon surrender of this Warrant at the principal office of the Company (or at
such other place as the Company shall notify the holder hereof in writing),
to purchase from the Company up to _______ fully paid and nonassessable
shares of common stock, par value $0.0001 per share (the "Common Stock"), of
the Company.
(b) Exercise Price. The exercise price for the shares of Common Stock
issuable pursuant to this Section 1 (the "Shares") shall be $4.00 per share
(the "Exercise Price"). The Shares and the Exercise Price shall be subject to
adjustment pursuant to Section 5 hereof.
Section 2. Exercise Period. This Warrant shall become exercisable, in
whole or in part (but not for an amount less than 25% of the number of Shares
for which this Warrant is initially exercisable), commencing on the Warrant
Issue Date and ending at 5:00 p.m. (Eastern Time) on __________, 2008 (the
"Expiration Date"); provided, however, that in the event of (a) the closing
of the Company's sale or transfer of all or substantially all of its assets,
or (b) the closing of the acquisition of the Company by another entity by
means of merger, consolidation or other transaction or series of related
transactions, resulting in the exchange of the outstanding shares of the
Company's capital stock such that the stockholders of the Company prior to
such transaction own, directly or indirectly, less than 50% of the voting
power of the surviving entity, this Warrant shall, on the date of such event,
no longer be exercisable and become null and void. In the event of a
proposed transaction of the kind described above, the Company shall notify
the Holder at least fifteen (15) days prior to the consummation of such event
or transaction.
Section 3. Method of Exercise.
(a) Mechanics of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 2 above, and subject to the
limitations set forth in Section 3(d), the Holder may exercise, in whole or
in part, the purchase rights evidenced hereby by (i) delivery of a written
notice, in the form attached hereto as Exhibit A (the "Exercise Notice"), of
the Holder's election to exercise this Warrant and (ii) (A) payment to the
Company of an amount equal to the applicable Exercise Price multiplied by the
number of Warrant Shares as to which this Warrant is being exercised (the
"Aggregate Exercise Price") in cash or wire transfer of immediately available
funds or (B) subject to the provisions of Section 3(c) below, and by
notifying the Company that this Warrant is being exercised pursuant to a
Cashless Exercise (as defined in Section 3(c)). The Holder shall not be
required to deliver the original Warrant in order to effect an exercise
hereunder. Execution and delivery of the Exercise Notice with respect to
less than all of the Warrant Shares shall have the same effect as
cancellation of the original Warrant and issuance of a new Warrant evidencing
the right to purchase the remaining number of Warrant Shares.
(b) Cashless Exercise. Notwithstanding anything contained herein to
the contrary, if, at any time a registration statement covering the Warrant
Shares that are the subject of the Exercise Notice (the "Unavailable Warrant
Shares") is not available for the resale of such Unavailable Warrant Shares,
the Holder may, in its sole discretion, exercise this Warrant in whole or in
part and, in lieu of making the cash payment otherwise contemplated to be
made to the Company upon such exercise in payment of the aggregate Exercise
Price, elect instead to receive upon such exercise the "Net Number" of shares
of Common Stock determined according to the following formula (a "Cashless
Exercise"):
Net Number = (A x B) - (A x C)
B
For purposes of the foregoing formula:
A= the total number of shares with respect to which this Warrant is
then being exercised.
B= the closing sale price of the shares of Common Stock (as reported
by Bloomberg) on the date immediately preceding the date of the
Exercise Notice.
C= the Exercise Price then in effect for the applicable Warrant
Shares at the time of such exercise.
(c) As soon as practicable after the exercise of this Warrant in whole
or in part, and in any event within three (3) business days thereafter, the
Company at its expense will cause to be issued in the name of, and delivered
to, the Holder, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Shares to
which such Holder shall be entitled, and
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(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on
the face or faces thereof for the number of Shares equal to the number of
such Shares described in this Warrant minus the number of such Shares
purchased by the Holder upon all exercises made in accordance with Section
3(a) above.
(d) Limitations on Exercises. The Company shall not effect the
exercise of this Warrant, and no Person (as defined below) who is a holder of
this Warrant shall have the right to exercise this Warrant, to the extent
that after giving effect to such exercise, such Person (together with such
Person's affiliates) would beneficially own in excess of 9.99% of the shares
of the Common Stock outstanding immediately after giving effect to such
exercise. For purposes of the foregoing sentence, the aggregate number of
shares of Common Stock beneficially owned by such Person and its affiliates
shall include the number of shares of Common Stock issuable upon exercise of
this Warrant 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) exercise of the remaining, unexercised portion of this Warrant
beneficially owned by such Person 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 Person 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 Warrant,
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
the holder of this Warrant, the Company shall within two Business Days
confirm orally and in writing to the holder of this Warrant 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 SPA
Warrants, by the holder of this Warrant and its affiliates since the date as
of which such number of outstanding shares of Common Stock was reported.
Section 4. Issuance of Shares. The Company covenants that the Shares,
when issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens,
and charges with respect to the issuance thereof.
Section 5. Adjustment of Exercise Price and Number of Shares. The
number of and kind of securities purchasable upon exercise of this Warrant
and the Exercise Price shall be subject to adjustment from time to time as
follows:
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(a) Subdivisions, Combinations and Other Issuances. If the Company
shall at any time prior to the expiration of this Warrant subdivide its
Common Stock, by split-up or otherwise, or combine its Common Stock, or issue
additional shares of its Common Stock as a dividend with respect to any
shares of its Common Stock, the number of Shares issuable on the exercise of
this Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination. Appropriate adjustments shall also be made to the purchase
price payable per Share, but the aggregate purchase price payable for the
total number of Shares purchasable under this Warrant (as adjusted) shall
remain the same. Any adjustment under this Section 5(a) shall become
effective at the close of business on the date the subdivision or combination
becomes effective, or as of the record date of such dividend, or in the event
that no record date is fixed, upon the making of such dividend.
(b) Reclassification, Reorganization and Consolidation. In case of any
reclassification, capital reorganization, or change in the Common Stock of
the Company (other than as a result of a subdivision, combination, or stock
dividend provided for in Section 5(a) above), then, as a condition of such
reclassification, reorganization, or change, lawful provision shall be made,
and duly executed documents evidencing the same from the Company or its
successor shall be delivered to the Holder, so that the Holder shall have the
right at any time prior to the expiration of this Warrant to purchase, at a
total price equal to that payable upon the exercise of this Warrant, the kind
and amount of shares of stock and other securities and property receivable in
connection with such reclassification, reorganization, or change by a holder
of the same number of shares of Common Stock as were purchasable by the
Holder immediately prior to such reclassification, reorganization, or change.
In any such case appropriate provisions shall be made with respect to the
rights and interest of the Holder so that the provisions hereof shall
thereafter be applicable with respect to any shares of stock or other
securities and property deliverable upon exercise hereof, and appropriate
adjustments shall be made to the purchase price per share payable hereunder,
provided the aggregate purchase price shall remain the same.
(c) Notice of Adjustment. When any adjustment is required to be made
in the number or kind of shares purchasable upon exercise of the Warrant, or
in the Exercise Price, the Company shall promptly notify the holder of such
event and of the number of shares of Common Stock or other securities or
property thereafter purchasable upon exercise of this Warrant.
Section 6. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of
this Warrant, but in lieu of such fractional shares the Company shall make a
cash payment therefor on the basis of the Exercise Price then in effect.
Section 7. No Stockholder Rights. Prior to exercise of this Warrant,
the Holder shall not be entitled to any rights of a stockholder with respect
to the Shares, including (without limitation) the right to vote such Shares,
receive dividends or other distributions thereon, exercise preemptive rights
or be notified of stockholder meetings, and, except as set forth in the
Purchase Agreement, such holder shall not be entitled to any notice or other
communication concerning the business or affairs of the Company. However,
nothing in this Section 7 shall limit the right of the Holder to be provided
any notices required under this Warrant.
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Section 8. Registration. The Shares issuable upon exercise of this
Warrant are subject to certain registration rights set forth in the Purchase
Agreement.
Section 9. Transfers of Warrant. Subject to compliance with
applicable federal and state securities laws, this Warrant and all rights
hereunder are transferable in whole or in part (but not for an amount less
than 25% of the number of Shares for which this Warrant is initially
exercisable) by the Holder to any person or entity, but only with the prior
written consent of the Company (which consent shall not be unreasonably
withheld, delayed, or conditioned). Any permitted transfer shall be recorded
on the books of the Company upon the surrender of this Warrant, properly
endorsed, to the Company at its principal offices, and the payment to the
Company of all transfer taxes and other governmental charges imposed on such
transfer. In the event of a partial transfer, the Company shall issue to the
holders one or more appropriate new warrants. Notwithstanding the foregoing,
this Warrant and the rights hereunder are transferable in whole or in part by
the Holder only to a person or entity that is an "accredited investor" (as
such term is defined in Rule 501(a) under the Securities Act.
Section 10. Successors and Assigns. The terms and provisions of this
Warrant and the Purchase Agreement shall inure to the benefit of, and be
binding upon, the Company, the Holder and their respective successors and
permitted assigns.
Section 11. Amendments and Waivers. Any term of this Warrant may be
amended and the observance of any term of this Warrant may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the Holder.
Section 12. Notices. All notices required under this Warrant and
shall be deemed to have been given or made for all purposes (i) upon personal
delivery, (ii) upon confirmation receipt that the communication was
successfully sent to the applicable number if sent by facsimile; (iii) one
day after being sent, when sent by professional overnight courier service, or
(iv) five days after posting when sent by registered or certified mail.
Notices to the Company shall be sent to the principal office of the Company
(or at such other place as the Company shall notify the Holder in writing).
Notices to the Holder shall be sent to the address of the Holder on the books
of the Company (or at such other place as the Holder shall notify the Company
hereof in writing).
Section 13. Captions. The section and subsection headings of this
Warrant are inserted for convenience only and shall not constitute a part of
this Warrant in construing or interpreting any provision hereof.
Section 14. Governing Law; Venue. This Warrant shall be governed by,
and construed in accordance with, the internal laws of the State of Florida.
All actions or proceedings, directly or indirectly, arising out of or related
to this Agreement or contesting the validity or applicability of this
Agreement shall be litigated exclusively in the Circuit Court in and for
Hillsborough County, Florida, or the United States District Court for the
Middle District of Florida, Tampa Division.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
on its behalf, in its corporate name, by an officer thereunto duly
authorized.
ODYSSEY MARINE
EXPLORATION, INC.
By: _____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
By: ______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
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