OMEX Odyssey Marine Exploration Inc

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): October 1, 2015

 

 

ODYSSEY MARINE EXPLORATION, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Nevada		001-31895		84-1018684
(State or Other Jurisdiction of Incorporation)		(Commission File Number)		(IRS Employer Identification No.)

5215 West Laurel Street

Tampa, Florida 33607

(Address of Principal Executive Offices and Zip Code)

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

Not Applicable

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

 

 

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

 

¨

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

 

¨

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

 

¨

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

 

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

 

 

 

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Item 1.01.

Entry Into a Material Definitive Agreement.

On October 1, 2015, Odyssey Marine Exploration, Inc. (“Odyssey”) and Odyssey Marine Enterprises, Ltd., an indirect, wholly owned subsidiary of Odyssey (“Enterprises”), entered into an Amendment No. 2 to Promissory Note (the “Amendment”) with Minera del Norte S.A. de C.V. (“MINOSA”). The Amendment further amends Section 2(a) of the Promissory Note, dated as of March 11, 2015 (as amended by Amendment No. 1 thereto dated as of April 10, 2015, the “Promissory Note”), among Odyssey, Enterprises, and MINOSA to provide that, unless otherwise converted as provided in the Note, the adjusted principal balance shall be due and payable in full upon written demand by MINOSA; provided that MINOSA agrees that it shall not demand payment of the adjusted principal balance earlier than the first to occur of: (i) 30 days after the date on which (x) SEMARNAT makes a determination with respect to the current application for the Manifestacion de Impacto Ambiental relating to the Don Diego Project, which determination is other than an approval or (y) Enterprises or any of its affiliates withdraws such application without MINOSA’s prior written consent; (ii) termination by Odyssey of the Stock Purchase Agreement, dated March 11, 2015 (the “Purchase Agreement”), among Odyssey, MINOSA, and Penelope Mining, LLC (the “Investor”); (iii) the occurrence of an event of default under the Promissory Note; (iv) December 31, 2015; or (v) if and only if the Investor shall have terminated the Purchase Agreement pursuant to Section 8.1(d)(iii) thereof, March 30, 2016.

The Amendment also prohibits Enterprises, Odyssey, and the respective subsidiaries from (a) prepaying any indebtedness so long as any adjusted principal balance of the Promissory Note is outstanding or (b) granting any encumbrance on any of their property or assets, and provides that any breach of these covenants constitutes an event of default under the Promissory Note.

The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is attached hereto as Exhibit 10.1.

 

Item 9.01.

Financial Statements and Exhibits.

 

(a)

Financial Statements of Businesses Acquired.

Not applicable.

 

(b)

Pro Forma Financial Information.

Not applicable.

 

(c)

Shell Company Transactions.

Not applicable.

 

(d)

Exhibits.

 

10.1

Amendment No. 2 to Promissory Note

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SIGNATURES

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

 

				ODYSSEY MARINE EXPLORATION, INC.
Dated: October 5, 2015				By:		/s/ Philip S. Devine
						Philip S. Devine
						Chief Financial Officer

Exhibit 10.1

EXECUTION VERSION

AMENDMENT NO. 2 TO PROMISSORY NOTE

This Amendment No. 2 to Promissory Note (this “Amendment”), dated as of October 1, 2015, is entered into by and among Odyssey Marine Enterprises, Ltd., a Bahamas company (the “Company”), whose address is Lyford Financial Centre, Lyford Cay, P.O. Box N-7776, Nassau, Bahamas, Odyssey Marine Exploration, Inc., a Nevada corporation (the “Guarantor”), and Minera del Norte, S.A. de C.V. (the “Lender”). Capitalized terms used in this Amendment but not otherwise defined herein shall have the respective meanings ascribed to them in the Promissory Note (as defined below).

R E C I T A L S:

WHEREAS, the Company, the Guarantor and the Lender entered into that certain Promissory Note, dated as of March 11, 2015 (as amended by Amendment No. 1 thereto dated as of April 10, 2015, and in effect as of the date hereof, the “Promissory Note”);

WHEREAS, the Lender remains the Holder of the Promissory Note; and

WHEREAS, the Company, Guarantor and the Lender desire to amend the Promissory Note as provided herein.

NOW THEREFORE, in consideration of the foregoing and the mutual covenants, and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

1. Section 2(a). Section 2(a) of the Promissory Note is hereby amended by deleting it in its entirety and inserting the following in lieu thereof:

“(a) Unless otherwise converted as provided herein, the Adjusted Principal Balance shall be due and payable in full upon written demand by the Lender; provided that the Lender agrees that it shall not demand payment of the Adjusted Principal Balance earlier than the first to occur of: (i) 30 days after the date on which (x) SEMARNAT makes a determination with respect to the current application for the Manifestacion de Impacto Ambiental relating to the Don Diego Project, which determination is other than an approval or (y) the Company or any of its affiliates withdraws such application without the Lender’s prior written consent; (ii) termination by Odyssey Marine Exploration, Inc. of the Stock Purchase Agreement; (iii) the occurrence of an Event of Default; (iv) December 31, 2015; or (v) if and only if the Investor shall have terminated the Stock Purchase Agreement pursuant to Section 8.1(d)(iii) thereof, March 30, 2016 (the date of such demand being the “Maturity Date”).”

2. Section 3(m). Section 3(m) of the Promissory Note is hereby amended by deleting the period at the end thereof, and adding the following:

“; or (iv) any breach of Section 5(i) or (j) shall occur.”

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3. Section 5. Section 5 of the Promissory Note is hereby amended by adding the following new clauses immediately after clause (h) of Section 5:

“(i) Prepayment of Other Debt. Neither the Company, the Guarantor nor any of their respective Subsidiaries shall prepay any Debt thereof so long as any portion of the Adjusted Principal Balance hereunder is outstanding, it being understood that this Section 5(i) shall not restrict the ability to pay Debt at its stated maturity as in effect on the date hereof.

(j) Granting of Encumbrances. Neither the Company, the Guarantor nor any of their respective Subsidiaries shall grant any Encumbrance on any property or asset thereof.”

4. Release. In consideration of, among other things, Lender’s execution and delivery of this Amendment, each of the Releasors hereby forever agrees and covenants not to sue or prosecute against the Releasees and hereby forever waives, releases and discharges each Releasee from, any and all Claims that such Releasor now has or hereafter may have, of whatsoever nature and kind, whether known or unknown, whether arising at law or in equity, against the Releasees, based in whole or in part on facts whether or not now known, existing on or before September 30, 2015, that relate to, arise out of or otherwise are in connection with this Amendment, the Promissory Note, the Stock Purchase Agreement or any transactions contemplated hereby, thereby or any acts or omissions in connection therewith or the negotiation thereof, provided, however, that the foregoing shall not release the “Investor” and “Guarantor” (as such terms are defined in the Stock Purchase Agreement) from the express obligations of either under the Stock Purchase Agreement arising on or after October 1, 2015. The provisions of this Section 5 shall survive the repayment of the Promissory Note.

5. Representation and Warranties. The Company represents and warrants that the representations and warranties set forth in Section 4 of the Promissory Note are true and correct as of the date hereof, as if made as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date. The Company and the Guarantor hereby represent and warrant to the Lender that this Amendment (a) has been duly authorized by the board of directors, or similar governing body, of the Company and the Guarantor, including by the approval of a majority of the directors of the Guarantor that are not affiliated with the Lender, (b) was duly executed by the Company and the Guarantor, and (c) constitutes a legal, valid and binding obligation of the Company and the Guarantor.

6. Full Force and Effect. Except as expressly modified by this Amendment, all of the terms, covenants, agreements, conditions and other provisions of the Promissory Note shall remain in full force and effect in accordance with their respective terms. This Amendment shall not constitute an amendment or waiver of any provision of the Promissory Note except as expressly set forth herein. Upon the execution and delivery hereof, the Promissory Note shall thereupon be deemed to be amended and supplemented as hereinabove set forth as fully and with the same effect as if the amendments and supplements made hereby were originally set forth in the Promissory Note, and this Amendment and the Promissory Note shall henceforth be read, taken and construed as one and the same instrument, but such amendments and supplements shall not

 

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operate so as to render invalid or improper any action heretofore taken under the Promissory Note. As used in the Promissory Note, the terms “this Note,” “herein,” “hereinafter,” “hereto,” and words of similar import shall mean and refer to, from and after the date of this Amendment, unless the context requires otherwise, the Promissory Note as amended by this Amendment. For the avoidance of doubt, references to the phrases “the date of this Note” or “the date hereof”, wherever used in the Promissory Note, as amended by this Amendment, shall mean March 11, 2015. In the event of any inconsistency between this Amendment and the Promissory Note with respect to the matters set forth herein, this Amendment shall take precedence.

7. Governing Law. This Amendment, and all claims arising out of or relating to it, shall be governed by and construed in accordance with the laws of the State of New York, excluding that body of law relating to conflict of laws.

8. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.

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IN WITNESS WHEREOF, the Company, the Guarantor and the Lender have caused this Amendment to be executed as of the day and year as first written above.

 

 

ACCEPTED AND AGREED TO:
MINERA DEL NORTE, S.A. DE C.V.
By:		/s/ Andres Gonzales Saravaria
Name:		Andres Gonzales Saravaria
Title:		General Counsel and Attorney in Fact
Address: