EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (this "Agreement") dated as of February 28,
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2001, by and between Odyssey Marine Exploration, Inc., a Nevada corporation (the
"Company"), and the parties identified in Exhibit A hereto (the "Purchasers").
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RECITALS
WHEREAS, on the date hereof, the Company, among others, will enter into a
Series B Convertible Preferred Shares Purchase Agreement ("Stock Purchase
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Agreement") with the Purchaser whereby the Purchasers will purchase (a) 864,008
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shares of common stock, $0.0001 par value per share of the Company ("Common
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Stock"), (b) all 850,000 shares of the Series B Preferred Stock, par value
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$0.0001 per share, to be issued by the Company ("Series B Preferred Stock"), and
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(c) warrants (the "Warrants") to purchase an aggregate of 1,889,000 shares of
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Common Stock of the Company, (such Common Stock, Series B Preferred Stock, and
the Warrants, together, the "Securities");
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WHEREAS, the Series B Preferred Stock shall be convertible into, and the
Warrants will be exercisable for, shares of Common Stock under the terms and
conditions of the Series B Preferred Stock and the Warrants, respectively; and
WHEREAS, as an inducement to enter into the Stock Purchase Agreement, and
as a condition to the purchase of the Securities by the Purchasers in connection
therewith, the Company has agreed to provide certain registration rights to the
Purchasers as set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized terms shall have the
following meanings:
"Advice" shall have the meaning set forth in Section 5.2 hereof.
"affiliate" shall have the meaning set forth in Rule 405 promulgated
under the Securities Act.
"Agreement" shall have the meaning set forth in the first paragraph of
this Agreement.
"Board" shall have the meaning set forth in Section 3.2(f) hereof.
"Common Stock" shall have the meaning set forth in the Recitals of
this Agreement.
"Company" shall have the meaning set forth in the first paragraph of
this Agreement.
"Demand Period" shall have the meaning set forth in Section 3.1
hereof.
"Demand Registration" shall have the meaning set forth in Section 3.1
hereof.
"Demand Registration Request" shall have the meaning set forth in
Section 3.2(a) hereof.
"Demand Registration Statement" shall have the meaning set forth in
Section 3.2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar law then in force.
"Form S-3 Registration Statement" shall have the meaning set forth in
Section 3.2(b) hereof.
"Initiating Holder" or "Initiating Holders" shall have the meaning set
forth in Section 3.1 hereof.
"Interim Demand Period" shall have the meaning set forth in Section
3.2(b) hereof.
"NASD" shall mean the National Association of Securities Dealers.
"Other Holders" shall have the meaning set forth in Section 4.4
hereof.
"Person" means an individual, a partnership, an association, a joint
venture, a corporation, a trust, an unincorporated organization and a
government or any department, agency or principal subdivision thereof.
"Piggyback Notice" shall have the meaning set forth in Section 4.1
hereof.
"Piggyback Registration" shall have the meaning set forth in Section
4.1 hereof.
"Piggyback Registration Statement" shall have the meaning set forth in
Section 4.1 hereof.
"Prospectus" is the prospectus included in any Registration Statement,
as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective
amendments and material incorporated by reference in such prospectus.
"Purchasers" shall have the meaning set forth in the first paragraph
of this Agreement.
"Registrable Securities" means, (i) shares of Common Stock issuable
upon conversion of the Series B Preferred Stock issued pursuant to the
Company's Articles of Incorporation, as amended, in accordance with
their terms, (ii) shares of Common Stock issuable upon exercise of the
Warrants, (iii) shares of Common Stock sold to the Purchaser pursuant
to the Stock Purchase Agreement, (iv) any Common Stock issued or
issuable with respect to the Securities by way of replacement, stock
dividend, stock-
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split, or in connection with or combination of shares,
recapitalization, or otherwise, and (v) shares of Common Stock
acquired (including, without limitation, upon conversion of
convertible securities, exercise of warrants, options or similar
securities, or otherwise) by the Purchaser after the date hereof. As
to any particular Registrable Securities, such securities shall cease
to be Registrable Securities when (a) a Registration Statement with
respect to the sale or transfer of such securities has been declared
effective under the Securities Act, (b) such securities shall have
been sold pursuant to Rule 144 (or any successor provision) under the
Securities Act, or (c) they shall have ceased to be outstanding.
"Registration Statement" means any registration statement of the
Company which covers any of its securities, including a prospectus,
amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all materials incorporated
by reference in such Registration Statement.
"Registration Expenses" shall have the meaning set forth in Section
6.1 hereof.
"SEC" means the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the Recitals to this
Agreement
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Series B Preferred Stock" shall have the meaning set forth in the
Recitals to this Agreement.
"Stock Purchase Agreement" shall have the meaning set forth in the
Recitals of this Agreement.
"Supplemental Demand Request" shall have the meaning set forth in
Section 3.2(d) hereof.
"Warrants" shall have the meaning set forth in the Recitals to this
Agreement
2. Registrable Securities.
2.1 Registrable Securities. The securities entitled to the benefits
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of this Agreement are the Registrable Securities.
2.2 Rights of Subsequent Holders. Subject to the restrictions on
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transferability as set forth on the legends affixed to certificates representing
the Registrable Securities, any subsequent holder of Registrable Securities
shall be entitled to all the benefits hereunder as a holder of such Registrable
Securities.
3. Demands for Registration.
3.1 Demand Registration. Commencing on the date of this Agreement
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and ending with the termination of this Agreement pursuant to Section 9.3 hereof
("Demand Period"), subject to
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the terms and conditions of this Agreement, one or more holders of the
Registrable Securities may make a written request to the Company for
registration under the Securities Act of all or part of their Registrable
Securities ("Demand Registration"). Such holders of Registrable Securities
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making such a demand are sometimes referred to herein as "Initiating Holders" or
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individually an "Initiating Holder". A registration shall not be deemed to be a
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Demand Registration (i) unless a Registration Statement with respect thereto has
become effective, (ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason not
attributable to the holders of Registrable Securities participating in such
registration and has not thereafter become effective, or (iii) if the conditions
to closing specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied or waived, other than by
reason of a failure on the part of the Registrable Securities participating in
such registration.
3.2 Demand Procedure.
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(a) Subject to Section 3.2(b) hereof, during the Demand Period
the Initiating Holders may deliver to the Company a written request (a "Demand
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Registration Request") that the Company register any or all of the Registrable
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Securities of such Initiating Holder(s).
(b) Holders of Registrable Securities will be entitled to Demand
Registration only if the Company is eligible to register the Registrable
Securities on a Form S-3, or any successor form thereto, with the SEC ("Form S-3
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Registration Statement"), and are registered under the Securities Act on such
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form. Further, holders of Registrable Securities are granted an unlimited
number of Demand Registrations on a Form S-3 Registration Statement, but may
make only one Demand Registration Request in any twelve-month period during the
Demand Period (the "Interim Demand Period"). The Company shall only be required
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to file one Registration Statement (as distinguished from supplements or pre-
effective or post-effective amendments thereto) in response to each Demand
Registration Request. Notwithstanding anything to the contrary in this Section
3, the Company shall not be required to take any action to effect any such
registration, qualification, or compliance pursuant to this Section 3 if the
holders of the Registrable Securities propose to offer or sell Registrable
Securities having an aggregate offering price to the public of less than
$500,000.
(c) A Demand Registration Request shall (i) set forth the number
of Registrable Securities intended to be sold pursuant to the Demand
Registration Request, (ii) identify the Initiating Holders making the Demand
Registration Request and the nature and amount of their holdings, (iii) specify
the method of distribution, disclosing whether all or any portion of a
distribution pursuant to such registration will be sought by means of an
underwriting, and (iv) identify any underwriter or underwriters proposed for the
underwritten portion, if any, of such registration.
(d) Upon the receipt by the Company of a Demand Registration
Request in accordance with Section 3.2(c) hereof, the Company shall promptly
give written notice of such request to all registered holders of Registrable
Securities. The Company shall include in such notice information concerning
whether all, part or none of the distribution is expected to be made by means of
an underwriting, and, if more than one means of distribution is contemplated,
may require holders of Registrable Securities to notify the Company of the means
of distribution of their Registrable Securities to be included in the
registration. If any holder of Registrable Securities who is not an Initiating
Holder desires to sell any Registrable Securities owned by such holder, such
holder may elect to have all or any portion of its Registrable Securities
included in the Registration Statement by notifying the Company in writing (a
"Supplemental Demand Registration Request") within ten (10) days of receiving
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notice of the Demand Registration Request from the Company. The right of any
holder to include all or any portion of its Registrable Securities in a Demand
Registration Statement shall be conditioned upon the Company's having received a
timely written request for such inclusion by way of a Demand Registration
Request or Supplemental Demand Registration Request (which right shall be
further conditioned to the extent provided in this Agreement). All holders
proposing to distribute their Registrable Securities through an underwriting
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting.
(e) If during any Interim Demand Period, the Company receives a
Demand Registration Request from an Initiating Holder satisfying the
requirements of Section 3.1 and 3.2(b) of this Agreement, the Company, subject
to the limitations of Section 3.2(f) and Section 5 hereof, shall prepare and
file a Registration Statement with the SEC on the appropriate form to register
for sale all of the Registrable Securities that holders of the Registrable
Securities requested to be registered pursuant to the Demand Registration
Request or in any Supplemental Demand Registration Request timely received by
the Company in accordance with Section 3(d) of this Agreement (a "Demand
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Registration Statement"). The Company shall use its commercially reasonable
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efforts (i) to cause such Registration Statement to become effective as soon as
practicable and (ii) thereafter to keep it continuously effective and to prevent
the happening of an event of the kind described in Section 5.1(c)(vi) hereof
that requires the Company to give notice pursuant to Section 5.2 hereof, until
the earlier of such time as all of the Registrable Securities included in the
Registration Statement have been sold (or otherwise disposed of by the holder
thereof) or one hundred eighty (180) days from the date of effectiveness of such
Registration Statement.
(f) It is anticipated that the Registration Statement filed with
the SEC may allow for different means of distribution, including sales by means
of an underwriting as well as sales into the open market. A determination of
whether all or part of the distribution will be by means of an underwriting
shall be made by the Initiating Holders. If the Initiating Holders desire to
distribute all or part of the Registrable Securities covered by its request by
means of an underwriting, they shall so advise the Company in writing in their
initial Demand Registration Request as described in Section 3.2(c) hereof.
Selection of the lead managing underwriter in any underwriting made in
connection with a Demand Registration Request shall be subject to approval by
the Company's Board of Directors (the "Board"), which approval shall not be
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unreasonably withheld.
(g) In any registered offering pursuant to this Section 3 that
becomes effective under the Securities Act in which a holder of Registrable
Securities participates, the Company shall use its commercially reasonable
efforts to keep available to such holder a Prospectus meeting the requirements
of Section 10(a)(3) of the Securities Act and shall file all amendments and
supplements under the Securities Act required for those purposes during the
period specified in Section 3.2(e). The Company agrees to supplement or amend
such Registration Statement, if required by the rules and regulations or
instructions applicable to the registration form utilized by the Company, or, if
applicable, the rules and regulations thereunder for shelf registrations
pursuant to Rule 415 promulgated under the Securities Act, or as reasonably
requested by holders of Registrable Securities covered by the Registration
Statement, or any underwriter of the Registrable Securities. In any offering
pursuant to this Section 3, the Company will promptly use its commercially
reasonable efforts to effect such qualification and compliance as may be
requested and as would permit or facilitate the distribution of the Registrable
Securities, including, without limitation, appropriate qualifications under
applicable blue sky or other state securities laws, appropriate compliance with
any other governmental requirements and listing on a national securities
exchange or inter-dealer quotation system on which the Registrable Securities
are then listed.
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(h) Notwithstanding any other provision of this Section 3, if the
managing underwriter advises the Company in writing that in its opinion market
factors require a limitation on the number of shares to be underwritten, then
the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among the holders in proportion (as nearly as
practicable) to the respective amounts of Registrable Securities each holder
otherwise sought to have registered pursuant to its Demand Registration Request
or Supplemental Demand Registration Request (or in such other proportion as they
shall mutually agree). Registrable Securities excluded or withdrawn from the
underwriting pursuant to this Section 3.2(h) shall be withdrawn from the
registration.
3.3 Priority on Demand Registration.
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(a) The Company will not include in any Demand Registration any
securities which are not Registrable Securities without the prior written
consent of the holders of a majority of the shares of Registrable Securities
included in such registration, which consent will not be unreasonably withheld.
If the holders of a majority of the shares of Registrable Securities included in
such registration so request or otherwise agree, the Company may, in its
reasonable discretion, include in any Demand Registration securities owned by
the holders of Registrable Securities which are not Registrable Securities. If
the Company permits the inclusion of such securities, holders owning such
securities, in addition to the costs set forth in Section 6.2, shall pay all
incremental costs associated with the inclusion of such securities in the
Registration Statement, including but not limited to, all increments in
registration, filing fees, and NASD fees.
(b) If a Demand Registration involves an underwritten offering
and the managing underwriter or underwriters shall advise the Company in writing
that, in their opinion, the total number of Registrable Securities and, as
permitted hereunder, other securities requested to be included in such offering
exceeds the number which can be sold in such offering without an adverse effect
on the success of such offering, then the Company will include in such Demand
Registration, to the extent of the number which the Company is so advised can be
sold in such offering without having such an adverse effect: (i) first, prior to
the inclusion of any securities which are not Registrable Securities, the number
of Registrable Securities requested to be included (subject to the provisions of
Section 3.2(h) hereof if all such Registrable Securities can not be included in
such underwritten offering), and (ii) second, all other securities which are
permitted to be included in such Registration Statement pursuant to Section
3.3(a) of this Agreement, allocated on a pro rata basis among the holders
thereof based upon the total number of shares of such other securities proposed
to be included in the registration. Notwithstanding any of the foregoing,
securities which are not Registrable Securities shall only be included in such
Demand Registration Statement to the extent that, in the opinion of the
underwriters, such securities can be sold without having an adverse effect on
the Company. Registrable Securities excluded or withdrawn from the underwriting
in accordance with this Section 3.3(b) shall be withdrawn from the registration.
4. Piggyback Registrations.
4.1 Right to Piggyback. If the Company proposes to file a
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Registration Statement in connection with a public offering of any of its
securities (other than in connection with a Demand Registration and other than a
Registration Statement on Form S-4 or Form S-8, or any comparable successor form
or form substituting therefor, or filed in connection with any exchange offer or
an offering of securities solely to the Company's existing shareholders) (a
"Piggyback Registration
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Statement"), whether or not for sale for its own account, then each such time
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the Company shall give written notice of a proposed offering (a "Piggyback
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Notice") to the holders of Registrable Securities of its intention to effect
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such a registration at least twenty (20) days prior to the anticipated filing
date of such Piggyback Registration Statement. The Piggyback Notice shall offer
the holders of Registrable Securities the opportunity to include in such
Piggyback Registration Statement such amount of Registrable Securities as they
may request ("Piggyback Registration"). The Company will, subject to the
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limitations set forth in Sections 4.3 and 4.4 of this Agreement, include in such
Piggyback Registration Statement (and related qualifications under blue sky
laws) and the underwriting, if any, involved therein, all Registrable Securities
with respect to which the Company has received a written request for inclusion
therein within fifteen (15) days after receipt of the Piggyback Notice (five (5)
days if the Company gives telephonic notice to all registered holders of the
Registrable Securities, with written confirmation to follow promptly
thereafter). Notwithstanding the above, the Company may determine, at any time,
not to proceed with such Piggyback Registration Statement. Such determination,
however, will be without prejudice to the rights of holders of Registrable
Securities to demand the continuation of such Registration Statement under
Section 3 hereof.
4.2 Underwriting Agreement. To the extent that the holders of
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Registrable Securities request Piggyback Registration of their Registrable
Securities, the holders of Registrable Securities shall (together with the
Company) enter into an underwriting agreement in customary form with the
managing underwriter, if any, selected by the Company for such underwriting.
4.3 Priority on Primary Registrations. If a Piggyback Registration
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involves an underwritten offering and the managing underwriter or underwriters
of any such proposed public offering delivers a written opinion to the Company
and the holders of Registrable Securities requesting registration under this
Section 4 that the total number or kind of securities which such holders and any
other Persons entitled to be included in such public offering would adversely
affect its ability to effect such an offering, then the Company may limit some
or all the Registrable Securities and other securities that may be included in
such registration and underwriting to the extent of the number or kind of
securities which the Company is so advised can be sold in (or during the time
of) such offering without having such an adverse effect, such that: (a) first,
all securities proposed by the Company to be sold for its own account, (b)
second, the Registrable Securities requested to be included in the registration
pro rata among the holders of the Registrable Securities requesting such
registration, on the basis of the total number of shares of such securities that
each such holder of the Registrable Securities otherwise proposed to include in
the Piggyback Registration.
4.4 Priority on Secondary Registrations. If a Piggyback Registration
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is an underwritten secondary registration on behalf of holders of the Company's
securities other than holders of Registrable Securities (the "Other Holders"),
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and the managing underwriter or underwriters advises the Company in writing that
in their opinion the number and kind of securities requested to be included in
such registration exceeds the number that can be sold in such offering, then the
Company will include in such registration (a) first, the Registrable Securities
requested to be included in such registration hereunder up to that number which,
in the opinion of the managing underwriter or underwriters, can be sold in such
offering, and if all such Registrable Securities can not be so included, then
pro rata among the holders of Registrable Securities requesting such
registration on the basis of the number of shares of Registrable Securities each
holder otherwise sought to have included in the Piggyback Registration, and (b)
second, the securities requested to be included therein by the Other Holders
requesting such registration, up to that number which, in the opinion of the
managing underwriter or underwriters, can be sold in the offering.
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4.5 No Demand Registration. No registration of the Registrable
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Securities under this Section 4 of the Agreement shall be deemed to be a Demand
Registration.
5. Registration Procedures.
5.1 Whenever the holders of Registrable Securities have requested
that any Registrable Securities be registered for sale pursuant to this
Agreement, whether pursuant to Section 3 or Section 4 hereof, the Company will
use its commercially reasonable efforts to effect the registration and the sale
of such Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto the Company will as expeditiously as
possible:
(a) Registration Statement. (i) Prepare and file with the SEC, as
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soon as practicable, a Registration Statement or Registration Statements
relating to the applicable registration on any appropriate form (subject to the
requirements of Section 3.2(b) hereof) under the Securities Act, which form
shall be available for the sale of the Registrable Securities in accordance with
the intended method or methods of distribution thereof, and shall include all
financial statements required by the SEC to be filed therewith; (ii) cooperate
and assist in any filings required to be made with the NASD; and (iii) use its
commercially reasonable efforts to cause such Registration Statement to become
effective; provided, however, that before filing a Registration Statement or
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Prospectus or any amendments or supplements thereto, the Company will furnish to
the holders whose Registrable Securities are covered by such Registration
Statement and the underwriters, if any, copies of all such documents proposed to
be filed, which documents will be subject to the reasonable review of such
holders and underwriters, and the Company will not file any Registration
Statement, or any amendment or supplement thereto (except a Piggyback
Registration or any amendment or supplement thereto) to which the holders of a
majority of the Registrable Securities covered by such Registration Statement,
or the underwriters, if any, shall reasonably object; provided, further,
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however, that the Company may discontinue any registration of securities to be
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offered by the Company at any time prior to the effective date of the
Registration Statement relating thereto.
(b) Amendments and Supplements. (i) Prepare and file with the SEC
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such amendments, post-effective amendments, and supplements to the Registration
Statement as may be necessary to keep such Registration Statement continuously
effective for the applicable period, or such shorter period which will terminate
when all the Registrable Securities covered by such Registration Statement have
been sold; (ii) cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and (iii) comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus.
(c) Notifications. Notify the holders of Registrable Securities
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covered thereby and the managing underwriter or underwriters, if any, promptly,
and (if requested by any such Person) confirm such advice in writing: (i) when
the Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any request by the SEC
for amendments or supplements to the Registration Statement or the Prospectus or
for additional information; (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; (iv) if at any time the representations and
warranties of the Company contemplated by Section 5.1(n) below cease to be true
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and correct; (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; or (vi) of the happening of any event which makes any statement made in
the Registration Statement, the Prospectus, or any document incorporated therein
by reference untrue or which requires the making of any changes in the
Registration Statement, the Prospectus, or any document incorporated therein by
reference in order to make the statements therein not misleading in light of the
circumstances under which they were made.
(d) Stop-Orders and Suspensions. In the event of the issuance of
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a stop-order or a suspension in the sale of the Registrable Securities, make
every reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of the Registration Statement or otherwise prohibiting the offer
or sale of the Registrable Securities, including those issued by state
governmental authorities, at the earliest possible moment.
(e) Distribution Disclosures. If requested by the managing
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underwriter or underwriters or a holder of Registrable Securities if the
Registrable Securities are being sold in connection with an underwritten
offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters and
holders of majority of the Registrable Securities being sold reasonably agree
should be included therein relating to the plan of distribution with respect to
such Registrable Securities, including, without limitation, information with
respect to the amount of Registrable Securities being sold to such underwriters,
the purchase price being paid therefor by such underwriters, and with respect to
any other terms of the underwritten (or best efforts underwritten) offering of
the Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment. The Company may require each of such holders to
furnish to the Company such information regarding the distribution of such
Registrable Securities as the Company may from time to time reasonably request
in writing.
(f) Copies of Registration Statement. Furnish to each holder of
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Registrable Securities which are covered by a Registration Statement pursuant to
this Agreement and each managing underwriter, without charge, at least one
signed or conformed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference).
(g) Copies of the Prospectus. Deliver to each holder of
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Registrable Securities which are covered by a Registration Statement pursuant to
this Agreement and the underwriters, if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; and the Company
hereby consents to the use of the Prospectus or any amendment or supplement
thereto by the holders of Registrable Securities and the underwriters, if any,
in connection with the offering and sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto.
(h) Blue Sky Laws. Prior to any public offering of the
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Registrable Securities, use its commercially reasonable efforts to register or
qualify or cooperate with holders of Registrable Securities, the underwriters,
if any, and their respective counsel in connection with the registration or
qualification of, such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions (where an exemption is not
available) as such holder or underwriter
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reasonably requests in writing and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, however, that the Company will not be required to qualify
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generally to do business in any jurisdiction where it is not then so qualified
or to take any action which would subject it to general service of process in
any jurisdiction where it is not then so subject or subject the Company to any
income or sale tax in any such jurisdiction where it is not then so subject.
(i) Removal of Legends. Cooperate with the holders of
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Registrable Securities and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such to be in such denominations and registered in such names as the
managing underwriter or underwriters may request at least two business days
prior to any sale of Registrable Securities to the underwriters.
(j) Other Governmental Filings. Use its reasonable best efforts
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to cause the Registrable Securities covered by the applicable Registration
Statement to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the holders thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities.
(k) Prospectus Amendments and Supplements. Upon the occurrence
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of any event contemplated by Section 5.1(c)(vi) above, prepare and promptly file
a supplement or post-effective amendment to the Registration Statement or the
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading under the circumstances in which they were
made.
(l) Securities Exchange Listings. Use its reasonable best
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efforts to cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or inter-dealer quotation
system on which similar securities issued by the Company are then listed, if
any.
(m) Delivery of Certificates. Not later than the effective date
------------------------
of the applicable Registration Statement, use its reasonable best efforts to
provide a CUSIP number for the Registrable Securities and provide the transfer
agent with printed certificates for the Registrable Securities which are in a
form eligible for deposit with Depository Trust Company.
(n) Agreements and Further Actions. Enter into such customary
------------------------------
agreements (including an underwriting agreement) and take all such other
reasonable actions in connection therewith in order to facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration (i) make such representations and
warranties to the holders of Registrable Securities and the underwriters, if
any, in form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings and covering matters including,
without limitation, those set forth in an underwriting agreement; (ii) obtain
opinions of counsel to the Company and updates thereof (which opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriter or underwriters, if any, and not objected to by the holders of a
majority of the Registrable Securities being sold), addressed to each holder
selling Registrable Securities and the underwriters, if any, covering the
matters customarily covered in opinions requested
10
in underwritten offerings and such other matters as may be reasonably requested
by a majority of the holders selling such Registrable Securities and the
underwriters, if any; (iii) obtain "cold comfort" letters and updates thereof
from the Company's independent certified public accountants addressed to the
holders of Registrable Securities and the underwriters, if any, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters by accountants in connection with primary underwritten
offerings; (iv) if an underwriting agreement is entered into, the same shall set
forth in full the indemnification provisions and procedures of Section 7 hereof
with respect to all parties to be indemnified pursuant to such section; and (v)
the Company shall deliver such documents and certificates as may be requested by
the holders of a majority of the Registrable Securities being sold and the
managing underwriter or underwriters, if any, to evidence compliance with
Section 5.1(k) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The above
shall be done at each closing under such underwriting or similar agreement or as
and to the extent required thereunder.
(o) Due Diligence Examination. Make available for inspection by
-------------------------
the holders of a majority of the Registrable Securities being sold and any
managing underwriter or underwriters participating in any disposition pursuant
to such Registration Statement and any attorney or accountant retained by such
underwriters, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with such
Registration Statement.
(p) Earning Statements. Otherwise use its reasonable efforts to
------------------
comply with all applicable rules and regulations of the SEC, and make generally
available to its security holders, earnings statements satisfying the provision
of Section 11(a) of the Securities Act no later than 45 days after the end of
each 12-month period (or 90 days after the end of each 12-month period, if such
period is a fiscal year end) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm or best efforts
underwritten offering; or (ii) if not sold to underwriters in such an offering,
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of the Registration Statement, which statements shall
cover each of such 12-month periods.
(q) Incorporated Documents. Promptly prior to the filing of any
----------------------
document which is to be incorporated by reference into the Registration
Statement or the Prospectus (after initial filing of the Registration
Statement), provide copies of such document to counsel to the holders of
Registrable Securities included in the Registration Statement and to the
managing underwriters, if any; and make the Company's representatives available
for discussion of such document, and make such changes in such document (other
than exhibits thereto) prior to the filing thereof as counsel for such holders
or underwriters may reasonably request.
5.2 Discontinuation of Distribution by Holders. Each holder of
------------------------------------------
Registrable Securities agrees, by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
of the kind that would require a Prospectus amendment or supplement pursuant to
Section 5.1(k) hereof, such holders will forthwith discontinue disposition of
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5.1(k) hereof, or
until it is advised in writing (the "Advice") by the Company that the use of the
------
Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus, and,
if so directed by the Company, such holder will deliver to the Company (at the
Company's expense) all copies, other than
11
permanent file copies then in such holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the time periods
regarding the maintenance of the effectiveness of any Registration Statement in
Section 3.2(e) hereof and the term of this Agreement in Section 9.3 shall be
extended by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 5.1(c)(vi) hereof to and including
the date when such holder shall have received the copies of the supplemented or
amended prospectus contemplated by Section 5.1(k) hereof or the Advice.
5.3 Hold-back Agreements and Other Limitations to Registration.
----------------------------------------------------------
(a) Restrictions on Holders.
-----------------------
(i) Notwithstanding anything to the contrary contained
herein, the Company shall be entitled to postpone for a reasonable period of
time the filing of any Registration Statement under Sections 3 or 4 hereof if
(A) any other Registration Statement for an offering of the Company's securities
has been filed with the SEC prior to, or is anticipated to be filed within
thirty (30) days from, the receipt of a Demand Registration Request, or (B) with
respect to an offering of the Registrable Securities, an audit (other than the
regular audit conducted by the Company at the end of its fiscal year) would be
required to be conducted pursuant to the Securities Act or the rules and
regulations promulgated thereunder, the form on which the Registration Statement
is to be filed, or otherwise by the SEC, or by the managing underwriter, if any,
unless the holders of Registrable Securities seeking inclusion in such offering
agree to pay the cost of such audit, or (C) the Board or a committee thereof
determines, in its reasonable judgment, that such registration would have a
material adverse effect upon the Company or interfere with any financing,
merger, acquisition, sale, corporate reorganization, or other material
transaction involving the Company or any of its affiliates; provided, however,
-------- -------
that the Company shall promptly give the Initiating Holders written notice of
such determination containing a general statement of the reasons for such
postponement and an approximation of such delay.
(ii) With respect to an underwritten public offering of
shares of Common Stock pursuant to an effective Registration Statement, each
holder of Registrable Securities agrees, if requested by the managing
underwriter or underwriters in an underwritten offering, not to effect any
public sale or distribution of securities of the Company of the same class as
the securities included in such Registration Statement, including a sale
pursuant to Rule 144 under the Securities Act (except as part of such
underwritten registration), during the ten (10) day period prior to, and during
the forty-five (45) day period beginning, on the closing date of each
underwritten offering made pursuant to such Registration Statement, to the
extent timely notified thereof in writing by the Company or the managing
underwriter or underwriters; provided, however, that all officers and directors
-------- -------
of the Company and all other holders holding 2% or more of the Company's issued
and outstanding capital stock enter into similar agreements. The provisions of
this Section 5.3(a)(ii) shall not apply to any holder of Registrable Securities
prevented by applicable statute or regulation from entering into such agreement;
provided, however, that any such holder shall undertake in its request to
-------- -------
participate in any such underwritten offering, not to effect a public sale or
distribution of any applicable class of securities commencing on the date of
sale of such applicable class of the securities unless it has provided not less
than forty-five (45) days' prior written notice of such sale or distribution to
the underwriter or underwriters.
12
6. Registration Expenses.
6.1 Expenses Borne by Company. Except as specifically otherwise
-------------------------
provided in Sections 3.3 and 6.2 hereof, the Company will be responsible for
payment of all expenses incident to the Company's performance of or compliance
with this Agreement and any registration hereunder, including, without
limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel for the underwriters in connection with the blue sky qualifications of
the Registrable Securities as the managing underwriter or the holders of a
majority of the Registrable Securities being sold may designate), fees and
expenses associated with filings required to be made with the NASD, printing
expenses (including expenses of printing certificates for the Registrable
Securities in a form eligible for deposit with Depository Trust Company and of
prospectuses), messenger and delivery expenses, and fees and disbursements of
counsel for the Company and for all independent certified public accountants
(including the expenses of any special audit and "cold comfort" letters required
by or incident to such performance), underwriters (excluding discounts,
commissions or fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals relating to the distribution of the
Registrable Securities), Securities Act liability insurance if the Company so
desires and other Persons retained by the Company in connection with such
registration (all such expenses borne by the Company being herein called the
"Registration Expenses").
----------------------
6.2 Expenses Borne by Holders. Each holder of Registrable Securities
-------------------------
included in such registration will be responsible for payment of brokerage
discounts, commissions and other sales expenses incident to the registration of
any Registrable Shares registered hereunder. In addition, holders of the
Registrable Securities will be responsible for the payment of their own legal
fees if they retain legal counsel separate from that of the Company. The
holders of the Registrable Securities included in such registration shall be
responsible for payment of their out-of-pocket expenses and the out-of-pocket
expenses of any agents who manage their account. Holders of Registrable
Securities included in such registration also shall be responsible for payment
of any underwriting fees if such holders have requested participation of an
underwriting with respect to an offering subject to Demand Registration or have
elected to participate in a Piggyback Registration using their own underwriter.
Any such expenses which are common to the holders of the Registrable Securities
included in the registration shall be divided among such holders pro rata on the
basis of the number of shares of Registrable Securities being registered on
behalf of such holder, or as such holders may otherwise agree.
7. Indemnification.
7.1 Indemnification by Company. In the event of any registration of
--------------------------
any Registrable Securities under the Securities Act, the Company hereby agrees
to indemnify, to the fullest extent permitted by law, and hold harmless each
seller of the Registrable Securities hereby, its officers, directors, employees,
partners, agents, and each Person who controls (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act and the rules and
regulations promulgated thereunder) such holder or acts on behalf of such
holder, and each other Person who participates as an underwriter in the offering
or sale of such Registrable Securities, against all losses, claims, damages,
liabilities and expenses (including attorneys fees) in connection with defending
against any such losses, claims, damages and liabilities or in connection with
any investigation or inquiry, in each case caused by or based on any untrue or
alleged untrue statement of material fact contained in any Registration
Statement in which such Registrable securities are registered under the
Securities Act, Prospectus or preliminary prospectus contained therein, or any
amendment thereof or supplement thereto, or any
13
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse each such indemnified person for any reasonable legal or any other
expenses reasonably incurred by them or any of them in connection with
investigating or defending any such claim (or action or proceeding in respect
thereof); provided, that the Company shall not be liable in any such case to the
-------- ----
extent that (i) same arises out of or is based on an untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement, any such Prospectus or preliminary prospectus, or in any amendment or
supplement thereto in reliance on and in conformity with written information
furnished to the Company by such holder of Registrable Securities specifically
stating that it is for use in the preparation thereof, (ii) such holder or any
underwriter or selling agents failed to deliver a copy of the Prospectus or any
amendments or supplements thereto to the Person asserting such loss, claim,
damage, liability, or expense if the Company had furnished such holder with a
reasonably sufficient number of copies of the same, or (iii) such holder has
violated the provisions of Section 5.2 hereof. In connection with an
underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each Person who controls (within the meaning of the
Securities Act) such underwriters at least to the same extent as provided above
with respect to the indemnification of the holders of Registrable Securities.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of a holder or any such underwriter and shall
survive the transfer of the Registrable Securities by a holder.
7.2 Indemnification by Sellers. In connection with any Registration
--------------------------
Statement in which a holder of Registrable Securities is participating, each
such holder will furnish to the Company in writing information concerning such
holder that is required by the provisions of applicable law and regulation to be
included in a Registration Statement as the Company reasonably requests for use
in connection with any such Registration Statement or Prospectus and, to the
extent permitted by law, each such holder, jointly and severally, will indemnify
the Company, its directors and officers, and each Person who controls (within
the meaning of the Securities Act) the Company against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in the Registration Statement, Prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information so
furnished in writing by such holder expressly for use in connection with such
Registration Statement; provided, however, that the indemnity agreement
-------- -------
contained in this Section 7.2 shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability, or action if such settlement is
effected without the consent of such holder, which consent shall not be
unreasonably withheld or delayed; and provided, further, that, in no event shall
-------- -------
any indemnity under this Section 7.2 exceed the net proceeds from the offering
actually received by such holder.
7.3 Assumption of Defense by Indemnifying Party. Any Person entitled
-------------------------------------------
to indemnification hereunder will (a) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided, however,
-------- -------
that any Person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such Person unless
(i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such Person or (iii) in the reasonable
judgment of any such Person, based upon written advice of its counsel, a
conflict of interest may exist between such Person and the indemnifying party
with respect to such claims (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claims on behalf of such Person). If
such
14
defense is not assumed, the indemnifying party will not be subject to any
liability for any settlement made without its consent (but such consent will not
be unreasonably withheld). An indemnifying party which is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which case the indemnifying party shall pay the reasonable fees and
expenses of such additional counsel or counsels. The failure of any indemnified
party to provide the notice required by Section 7.3(a) above shall not relieve
the indemnifing party under this Section 7, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice.
7.4 Contribution. If for any reason the indemnification provided for
------------
in Sections 7.1 and 7.2 is unavailable to an indemnified party or insufficient
to hold it harmless as contemplated by Sections 7.1 and 7.2, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnified party and the indemnifying party, but also the relative fault
of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.5 Binding Effect. The indemnification provided for under this
--------------
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and will survive the transfer of
securities.
8. Participation in Underwritten Registrations.
8.1 Underwriting Arrangements. No Person may participate in any
-------------------------
Registration Statement hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under such underwriting arrangements.
8.2 Agreement To Provide Information. Each holder of Registrable
--------------------------------
Securities seeking registration of its Registrable Securities pursuant to the
terms of this Agreement, whether pursuant to Section 3 or Section 4 hereof, will
furnish promptly to the Company and any managing underwriter such information
regarding such holder and the proposed distribution of the Registrable Shares by
such holder as they may request and as may be required in connection with any
registration, qualification, or compliance referred to in this Agreement. In
the event that a holder of Registrable Securities fails or refuses to provide
such information for any reason within a reasonable time after a request
therefor by the Company or the managing underwriter, if any, the Company will be
relieved of obligations to include such Registrable Securities in such
registration.
9. General Provisions.
9.1 No Inconsistent Agreements. The Company will not on or after the
--------------------------
date hereof, without the consent of the holders of not less than two-thirds of
the Registrable Securities, enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the
15
holders of Registrable Securities in this Agreement, grants to any person or
entity rights as to registration that all superior to are more beneficial than
the rights granted hereunder, or otherwise conflicts with the provisions hereof.
The rights granted to holders of Registrable Securities hereunder do not in any
way conflict with any other agreement to which the Company is a party.
9.2 Remedies. All remedies under this Agreement, or by law or
--------
otherwise afforded to any party hereto, shall be cumulative and not alternative.
Any Person having rights under any provision of this Agreement will be entitled
to enforce such rights specifically to recover damages caused by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law. The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for any breach of the provisions of this Agreement and
that any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
9.3 Term. Except as specifically otherwise provided herein, the
----
provisions of this Agreement shall terminate upon the earlier to occur of: (i)
no Registrable Securities remain outstanding, (ii) all of the Registrable
Securities may be transferred, sold, or otherwise disposed of in accordance with
the provisions of Rule 144(e) or 144(k) promulgated under the Securities Act, or
(iii) on the fifth anniversary of this Agreement.
9.4 Amendments and Waivers. Except as otherwise specifically
----------------------
provided herein, this Agreement may be amended or waived only upon the prior
written consent of the Company and the holders of a majority of the then
outstanding shares of Registrable Securities.
9.5 Assignment. This Agreement shall be binding upon and inure to
-----------
the benefit and be enforceable by the parties hereto, and their respective
successors and assigns, whether so expressed or not. In addition, whether or
not any express assignment has been made, the provisions of this Agreement which
are for the benefit of holders of Registrable Securities also are for the
benefit of, and enforceable by, any subsequent holder of such Registrable
Securities so long as, and to the extent that, such securities continue to be
Registrable Securities.
9.6 Severability. Whenever possible, each provision of this
------------
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
9.7 Counterparts. This Agreement may be executed in multiple
------------
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
Agreement.
9.8 Descriptive Headings. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
9.9 Governing Law. All questions concerning the construction,
-------------
validity and interpretation of this Agreement will be governed by and construed
in accordance with the domestic laws of the State of Nevada, without giving
effect to any choice of law or conflict of law provision or
16
rule (whether of the State of Nevada or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of Nevada.
9.10 Entire Agreement. This Agreement is intended by the parties as
----------------
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
with respect of the subject matter contained herein. This agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
9.11 Notices. All notices, demands, or other communications to be
-------
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be delivered personally to the recipient, sent to the
recipient by reputable express courier service (charges prepaid), mailed to the
recipient by certified or registered mail, return receipt requested and postage
prepaid, or by telecopy and shall be deemed to have been received at the time of
personal delivery, on the next business day if delivered by express courier,
three business days after deposit in the mail, or at the time of transmission,
if sent by telecopy during the recipient's business hours (or otherwise on the
next business day). Such notices, demands and other communications will be sent
to each holder at the address indicated on the records of the Company and to the
Company at the address indicated below:
(a) If to the Company:
ββββ βββββ ββββββ
βββββ, βββββββ βββββ
Attn: Corporate Secretary
(b) If to Stockholders:
To their respective addresses shown on the Company's records or
to such other address or to the attention of such Person as the
recipient party has specified by prior written notice to the
sending party.
with a copy, which shall not constitute notice, to:
βββββββ β. ββββββ, Esq.
Carlton, Fields, P.A.
βββ βββββ βββββββ ββββββ βββββββββ
βββββ, βββββββ βββββ
9.12 Delays or Omissions. No failure to exercise or delay in the
-------------------
exercise of any right, power or remedy accruing to a holder on any breach or
default of the Company under this Agreement shall impair any such right, power
or remedy nor shall it be construed to be a waiver of any such breach.
9.13 Aggregation of Stock. All shares of Registrable Securities held
--------------------
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
[Remainder of Page Intentionally Left Blank - Signatures on Next Page]
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY:
------------
ODYSSEY MARINE EXPLORATION, INC.,
a Nevada corporation
By: /s/ ββββ β. ββββββ
------------------
ββββ β. ββββββ
President and Chief
Executive Officer
PURCHASER:
----------
MACDOUGALD FAMILY LIMITED
PARTNERSHIP, a Nevada limited partnership
By: MACDOUGALD MANAGEMENT, INC., a Nevada
corporation, General Partner
By: /s/ βββββ β. ββββββββββ
-----------------------
βββββ β. ββββββββββ,
President
18