UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Amendment No. 2)
(Mark one)
| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 |
FOR THE FISCAL YEAR ENDED DECEMBER 31 , 2021
| TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission File Number 001-31895
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
(Address and zip code of principal executive offices)
(813 ) 876-1776
(Registrant’s telephone number including area code)
Securities registered pursuant Section 12(b) of the Act:
| (Title of each class) |
(Trading symbol) |
(Name of each exchange on which registered) | ||
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Securities Act. Yes ☐ No ☒
Indicate by mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation Yes ☒ No ☐
S-T
during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, a smaller reporting company, or emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2
of the Exchange Act. (Check one): | Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| ☐ | Smaller reporting company | |||||
| Emerging growth company | ||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal controls over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule ☒
12b-2
of the Act). Yes ☐ No The aggregate market value of the 12.3 million shares of voting stock held by 78.2 million. As of March 8, 2022, the Registrant had 14,349,363 shares of Common Stock outstanding.
non-affiliates
of Odyssey Marine Exploration, Inc. as of June 30, 2021, was approximately $DOCUMENTS INCORPORATED BY REFERENCE
The information required by Part III of this Form
10-K
is incorporated by reference to the Company’s Definitive Proxy Statement for the Registrant’s Annual Meeting of Stockholders to be held on June 13, 2022. Auditor’s Name: Warren Averett, LLC
Auditor’s Location: Tampa, Florida
Auditor’s PCAOB ID Number: 2226
EXPLANATORY NOTE
Odyssey Marine Exploration, Inc. (the “Company,” “we,” or “our”) is filing this Form
10-K/A
(this “Amendment”) to further amend our Annual Report on Form 10-K
for the year ended December 31, 2021, which we filed with the Securities and Exchange Commission (the “SEC”) on March 31, 2022 (the “Original Filing”), as amended by the Form 10-K/A that we filed with the SEC on July 19, 2022 (the "First Amendment"). As used in this Amendment, the Original Filing, as previously amended by the First Amendment, is referred to as the "Amended Filing." This Amendment is being filed to amend and restate Item 2 of Part I and Item 9A of Part I in their entirety in response to comments received from the SEC staff with respect to the First Amendment. This Amendment also restates Item 15 of Part IV in its entirety and, pursuant to Rule 12b-15, new certifications by our principal executive officer and our chief financial officer as required by Section 302 and Section 906 of the Sarbanes-Oxley Act of 2002 are filed as exhibits to this Amendment. Other than the items referenced above, this Amendment does not attempt to modify or update the Amended Filing. This Amendment does not reflect events occurring after the date of the Original Filing or modify or update those disclosures that may be affected by subsequent events. Such subsequent matters are or will be addressed in subsequent reports filed by the Company with the SEC. Accordingly, this Amendment should be read in conjunction with the Amended Filing. Capitalized terms not defined in this Amendment have the meaning given to them in the Original Filing.
TABLE OF CONTENTS
Page |
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| Part I |
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| Item 2. |
1 |
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| Item 9A. |
6 |
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| Item 15. |
7 |
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ITEM 2. PROPERTIES
Corporate Office
We maintain our corporate offices in Tampa, Florida where we lease approximately 6,000 square feet of office space. We currently do not own any buildings or land. We believe our current leased facility is sufficient for our foreseeable needs.
Don Diego Phosphorite Project
Summary
We have one material mining project, the Don Diego Phosphorite Project, which is located in the Mexican Exclusive Economic Zone (the “Mexican EEZ”) offshore Baja California Sur, Mexico in the Pacific Ocean. The exclusive mining concessions for the Don Diego Phosphorite Project are held by Exploraciones Oceánicas S. de R.L. de CV (“ExO”), a Mexican company in which we hold, through other subsidiaries, a 56.3% interest. The Don Diego Phosphorite Project is classified as an exploration stage property because it currently has no mineral reserves disclosed. The primary concession (Don Diego West Phosphorite Deposit) was granted in 2012, and rights for the two additional adjacent concessions (Don Diego Norte and Don Diego Sur) were acquired in 2014.
Location and Brief Description
The Don Diego Phosphorite Project concession area is a sedimentary marine phosphorite deposit located in the Mexican EEZ offshore Baja California Sur, Mexico in the Pacific Ocean. The property is located using a multi-point polygonal property demarcation bounded by latitudes 26.1°, 25.60°, and longitudes -112.12°, -112.80° WGS 1984. The property is roughly 20 to 45 kilometers from shore. Following is a map denoting the three concessions in Don Diego in relation to Baja California Sur, Mexico.
1
Infrastructure and Access
There is no material infrastructure located on the property where the concessions are located. Access to the site is by
sea-going
vessels dispatched from various nearby ports of opportunity. Project engineering anticipates use of existing dredging technology to recover the phosphorite ore, including a trailer suction hopper dredger, and
on-site
mechanical beneficiation using a floating production and storage platform to produce phosphate rock concentrate. Description of Concessions
Total concessions encompass 1,147 km
2
of seafloor at a water depth of approximately 80 meters and consist of three concessions in total (see the previous map). The concessions were granted to ExO by the Mexican Secretary of Economy, General Coordination of Mining, and are valid for 50 years, with an option for a 50-year
extension. The primary concession was granted in 2012, and rights for the other two concessions (Norte and Sur) were acquired thereafter in 2014. To commence further operations on the Don Diego Phosphorite Project, ExO must obtain approval of its Environmental and Social Impact Assessment (“ESAI”) from the Mexican Secretariat of Environment and Natural Resources. See ExO Phosphate Project in the above ITEM 1. BUSINESS for additional information. The property is subject to rents, fees and other payments to the Government of Mexico or its designated government ministry or agency.
2
The anticipated annual obligations for each of the years in the three-year period ending December 31, 2024 are set forth in the table below.
Primary Concession
| Year |
Area (Hectares) |
Annual Rent, MxN Pesos, owed semesterly | ||
2022 |
80,050.5 |
30,236,658 | ||
2023 |
80,050.5 |
The above is based on 188.86 MxN per hectare per semester. 2023 will be a similar rate but increase by some inflationary factor e.g. increase the rate per hectare by about 5% | ||
2024 |
80,050.5 |
The above is based on 188.86 MxN per hectare per semester. 2024 will be a similar rate but increase by some inflationary factor e.g. increase the rate per hectare by about 5% | ||
Norte Concession
| Year |
Area (Hectares) |
Annual Rent, Mx Pesos, owed semesterly | ||
2022 |
14,300 |
3,069,352 | ||
2023 |
14,300 |
Will be based on 107.32 MxN per hectare per semester, with an increase in this rate from inflation | ||
2024 |
14,300 |
Will be based on 188.86 MxN per hectare per semester, with an increase in this rate from inflation | ||
Sur Concession
| Year |
Area (Hectares) |
Annual Rent, Mx Pesos, owed semesterly | ||
2022 |
20,425 |
4,384,022 | ||
2023 |
20,425 |
Will be based on 107.32 MxN per hectare per semester, with an increase in this rate from inflation | ||
2024 |
20,425 |
Will be based on 188.86 MxN per hectare per semester, with an increase in this rate from inflation | ||
3
Work Completed
The Don Diego Phosphorite Project is in the exploration stage. ExO, through exploration operations conducted by Odyssey, explored the area, characterized the environmental baseline to enable drafting of the ESAI, and acquired approximately 200 vibracore samples for assay.
Previous Operations
The mineral concession granted by the Government of Mexico to ExO is believed to be the first for the subject property. Nearby concessions have been granted to Innophos Holdings, Inc. (“Innophos”) and PhosMex Corporation (“PhosMex”) that are adjacent to and are a window within the Don Diego mineral concession. Innophos may have conducted an exploration program on its adjacent property of an estimated 13,474 hectares. However, the details and any findings have not been distributed in the public domain. There is no evidence of significant mineral exploration activities within the concession area held by PhosMex.
4
Related Matters
This annual report on Form
10-K
does not include a resource estimate for the Don Diego Phosphorite Project because currently we do not have a technical report summary for the project that meets the requirements of Item 601(b)(96) of Regulation S-K.
Other Interests and Projects
Overview
In addition to the Don Diego Phosphorite Project, we hold the following interests or have undertaken the following early-stage activities:
• |
we hold an 85.6% interest in Bismarck Mining Corporation, Ltd, a Papua New Guinea company (“Bismarck”); |
• |
through a wholly owned subsidiary, we hold a 13.9% interest in CIC Limited, a company organized under the laws of the Cook Islands (“CIC”); and |
• |
we have entered into a Memorandum of Understanding (“MoU”) with the Government of Antigua and Barbuda (“GOAB”). |
Lihir Gold Project
Bismarck holds an exploration license for a project, which we refer to as the Lihir Gold Project, that covers a subsea area that contains at least five prospective gold exploration targets in two different mineralization types: seamount-related epithermal and modern placer gold. Two subaqueous debris fields within the area are adjacent to the terrestrial Ladolam Gold Mine and are believed to have originated from the same volcanogenic source. The resource lies 500-2,000 meters deep in the Papua New Guinea (“PNG”) Exclusive Economic Zone off the coast of Lihir Island, adjacent to the location of one of the world’s largest know terrestrial gold deposits. Previous exploration expeditions in the license area, including a survey conducted by Odyssey, indicate it is highly prospective for commercially viable gold content.
In August 2021, the PNG government issued a permit extension to Bismarck allowing Odyssey to continue with our exploration program. We have developed an exploration program for the Lihir Gold Project to validate and quantify the precious and base metal content of the prospective resource. The Company met with local regulatory authorities, specialists in local mining, environmental legal experts, and logistics support service companies in PNG to establish baseline business functions essential for a successful program to support upcoming marine exploration operations in the license area. This offshore work began in late 2021. Bismarck and Odyssey value the environment and respect the interests and people of PNG and Lihir and are committed to transparently sharing of all environmental data collected during the exploration program.
Offshore survey and mapping operations commenced in December 2021 in the license area. Raw data is being processed to produce a report and full analysis. The goals of this work include producing a high-resolution acoustic terrain model of the seafloor in the area, as well as acquiring acoustic images of subseafloor sediments and lithology. This will provide a basis for characterizing the geologic setting of the area and essentially creating a “snapshot” of the environment. These activities will help us to further characterize the value of this project and allow informed decision making on how to proceed with environmentally sensitive direct geologic sampling.
5
Odyssey’s multi-year exploration program will focus on robust environmental surveys and studies that will accrue to environmental permitting in compliance with PNG’s requirements as well as the development of an Environmental Impact Assessment. During the exploration phase, steps to validate and quantify the precious and base metal content of the prospective resource will also be carried out. Once completed, if the data shows extraction can be carried out responsibly, [Odyssey will apply for a mining license].
Because the Lihir Gold Project relates to an exploration target and only exploration activities have been undertaken, there is insufficient data or information from which to estimate a mineral resource. The exploration results are insufficient to derive estimates of tonnage, grade, and production rates, or in an assessment of economic viability.
CIC Project
Odyssey is a member of the CIC Consortium, which was founded and is led by Odyssey co-founder and former CEO, Greg Stemm, and includes Royal Boskalis Westminster NV and Odyssey Marine Exploration. The CIC Consortium was founded to apply for a license from the Cook Islands Seabed Minerals Authority (“SBMA”) to explore for seabed minerals in the Cook Islands, which we refer to as the CIC Project. In December 2021, the Cook Islands Seabed Minerals Authority’s (“SBMA”) Licensing Panel evaluated three applications and announced that CIC met the qualification criteria for an exploration license, and CIC was later awarded a five-year exploration license by the Cook Islands.
Through a wholly owned subsidiary, Odyssey has earned and now hold a position of approximately 13.9% of the current outstanding equity units of CIC. We have the ability to earn up to 20.0 million equity units over the next several calendar years, which represents an approximate 16.0% interest in CIC, based upon the currently outstanding equity units. We earned our current equity position through the provision of services rendered to the CIC Consortium.
Because the CIC Project relates to an exploration target, there is insufficient data or information from which to estimate a mineral resource. The data and information available are insufficient to derive estimates of tonnage, grade, and production rates, or in an assessment of economic viability.
Antigua and Barbuda
In September 2021, Odyssey entered into a Memorandum of Understanding (“MoU”) with the Government of Antigua and Barbuda (“GOAB”) to determine the feasibility of a sustainable seabed mineral resource program from highly prospective areas in their Exclusive Economic Zone. We believe there is a high probability for polymetallic nodule formation based upon legacy data, regional analysis and seafloor conditions which are similar to and adjacent to our target area. Development of an exploration program, which will be the basis for a definitive agreement between the parties, is in late-stage development. The data and information available relating to this area are insufficient to derive estimates of tonnage, grade, and production rates, or in an assessment of economic viability.
Certain Information
The information set forth above regarding the Lihir Gold Project, the CIC Project, and the potential project that is the subject of the MoU with the GOAB does not include certain information regarding these projects to which we do not have access. The omitted information includes the aggregate annual production for the properties during each of the three most recently completed fiscal years; acreages involved; key permit conditions; mine types and mineralization styles; and information regarding processing plants and other available facilities. The foregoing information was not presented in the disclosure provided either because it is not available from any source or obtaining the information would result in an unreasonable burden or expense to Odyssey.
ITEM 9A. CONTROLS AND PROCEDURES
Disclosure Controls and Procedures
Disclosure controls are procedures designed to ensure that information required to be disclosed in our reports filed under the Securities Exchange Act of 1934, such as this report, are recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. Disclosure controls are also designed to ensure that such information is accumulated and communicated to management including our Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”), as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating our disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and implemented, can provide only reasonable, not absolute, assurance of achieving the desired control objectives, as ours are designed to do, and management necessarily was required to apply its judgement in evaluating the cost-benefit relationship of possible controls and procedures.
Under the supervision and with the participation of our management, including our CEO and CFO, we have evaluated the effectiveness of our disclosure controls and procedures pursuant to Securities Exchange Act of 1934 Rule 13a-15(b) as of the end of the period covered by this report. Based on that evaluation our CEO and CFO have concluded that these disclosure controls and procedures are effective.
Internal Control over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over our financial reporting as defined in Rule 13a-15(f) of the Exchange Act. With management’s participation, an evaluation of the effectiveness of internal control over financial reporting was conducted as of December 31, 2021, based on the framework and criteria established in issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this evaluation, management, including our CEO and our CFO, concluded that our internal control over financial reporting was effective as of December 31, 2021.
Internal Control-Integrated Framework (2013)
This Annual Report does not include an attestation report by Warren Averett, LLC, our independent registered public accounting firm, regarding internal control over financial reporting. As a smaller reporting company, our management’s report was not subject to attestation by our registered public accounting firm pursuant to rules of the SEC that permit us to provide only management’s report in this Annual Report.
We regularly review our system of internal control over financial reporting and make changes to our processes and systems to improve controls and increase efficiency. Changes may include such activities as implementing new, more efficient systems, consolidating activities, and migrating processes. There were no changes in our internal control over financial reporting that occurred during the three months ended December 31, 2021 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
6
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following documents are filed as part of this Annual Report on Form 10-K:
1. |
(a) Consolidated Financial Statements |
See “Index to Consolidated Financial Statements” on page 37.
(b) |
Consolidated Financial Statement Schedules |
See “Index to Consolidated Financial Statements” on page 37.
All other schedules have been omitted because the required information is not significant or is included in the financial statements or notes thereto, or is not applicable.
2. |
Exhibits |
The Exhibits listed in the Exhibits Index, which appears immediately following the signature page and is incorporated herein by reference, are filed as part of this Annual Report on Form 10-K.
7
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunder duly authorized.
ODYSSEY MARINE EXPLORATION, INC. | ||||||
Dated: August 11, 2022 |
||||||
By: |
/s/ Christopher E. Jones | |||||
Chief Financial Officer | ||||||
8
EXHIBITS INDEX
Exhibit Number |
Description | |
3.1 |
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3.2 |
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3.3 |
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3.4 |
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3.5 |
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3.6 |
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3.7 |
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4.1 |
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4.2 |
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4.3 |
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10.1* |
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10.2* |
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10.3* |
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10.4 |
||
10.5 |
||
10.6 |
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10.7 |
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10.8 |
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10.9 |
||
10.10 |
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10.11 |
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10.12 |
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10.13 |
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10.14 |
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9
10.15 |
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10.16 |
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10.17 |
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10.18 |
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10.19 |
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10.20 |
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10.21 |
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10.22 |
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10.23 |
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10.24 |
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10.25 |
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10.26 |
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10.27 |
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10.28 |
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21.1 |
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23.1 |
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31.1 |
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31.2 |
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32.1 |
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32.2 |
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96.1 |
||
101.1 |
Inline XBRL Interactive Data File (incorporated by reference to Exhibit 101.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2021 | |
104 |
Cover Page Interactive Data File (formatted as Inline XBRL and contained within Exhibit 101) | |
* |
Management contract or compensatory plan. |
10