EXHIBIT 3.4
ODYSSEY MARINE EXPLORATION, INC.
AMENDED CERTIFICATE OF DESIGNATION
FOR SERIES C CONVERTIBLE PREFERRED STOCK
ODYSSEY MARINE EXPLORATION, INC., a Nevada corporation (the
"Corporation"), hereby certifies to the Secretary of State of the State of
Nevada as follows:
FIRST: This Amended Certificate of Designation is amending the
Certificate of Designation that was filed on September 10, 2002, by correcting
the name of the corporation which is the issuer of the common stock into which
the Series C Convertible Preferred Stock may be converted. No shares of
Series C Convertible Preferred Stock have yet been issued.
SECOND: That the Board of Directors of the Corporation at a meeting held
on September 9, 2002, pursuant to Article IV of the Articles of Incorporation,
adopted resolutions approving, proposing and declaring advisable, the
establishment of a series of preferred stock of the Corporation in the form of
this Certificate of Designation. The resolutions establishing the Series C
Convertible Preferred Stock are as follows:
RESOLVED: There is hereby established a series of Preferred Stock of the
Corporation designated "Series C Convertible Preferred Stock," par value
$.0001 per share. The number of shares of this series of Convertible
Preferred Stock shall be one (1) share. The powers, designations, preferences
and relative, participating, optional or other special rights of the shares of
this series of Convertible Preferred Stock and the qualifications, limitations
and restrictions of such preferences and rights shall be as follows:
1. Dividend Provisions. The Corporation is not required to pay
any dividends on the Series C Convertible Preferred Stock.
2. Liquidation Preference.
(a) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation, the
holder of each share of Series C Convertible Preferred Stock shall be entitled
to receive, out of the assets of the Corporation available for distribution to
its stock holders, before any payment or distribution shall be made on the
Common Stock, 100% of the issued and outstanding shares of the Common Stock of
OVH, Inc., a Nevada corporation.
(b) For purposes of this Section 2, a merger or
consolidation of the Corporation with or into any other corporation or
corporations, or the merger of any other corporation or corporations into the
Corporation, or the sale or any other corporate reorganization, in which
shareholders of the corporation receive distributions as a result of such
consolidation, merger, sale of assets or reorganization, shall be treated as a
liquidation, dissolution or winding up of the Corporation, unless the
stockholders of the Corporation hold more than fifty percent (50%) of the
voting equity securities of the successor or surviving corporation immediately
following such consolidation, merger, sale of assets or reorganization in
which event such consolidation, merger, sale of assets, or reorganization
shall not be treated as a liquidation, dissolution or winding up.
3. Conversion. The share of Series C Convertible Preferred
Stock may be converted into either (i) 400,000 shares of the Corporation's
Common Stock and warrants to purchase 400,000 shares of the Corporation's
Common Stock at an exercise price of $2.50 per share or (ii) 100% of the
issued and outstanding shares of common stock of OVH, Inc., a Nevada
corporation, on the following terms and conditions (the "Conversion Rights"):
(a) Option to Convert. During the period commencing
September 6, 2002 and ending September 6, 2004, the holder of the Series C
Convertible Preferred Stock shall have the right to convert his share into the
Corporation's Common Stock and warrants or the common stock of OVH, Inc. at
any time upon notice to the Corporation on the terms and conditions set forth
herein.
(b) Mechanics of Conversion. Upon the election of the
holder of the Series C Convertible Preferred Stock to convert shares of such
Preferred Stock, the holder shall surrender the certificate or certificates
thereof, duly endorsed, either by overnight courier or 2-day courier, to the
Corporation, and shall give written notice to the Corporation that the holder
elects to covert the same into the Corporation's Common Stock and warrants or
the common stock of OVH, Inc., and send the notice by facsimile to the
Corporation; provided, however, that the Corporation shall not be obligated to
issue the securities issuable upon such conversion unless certificates
evidencing such share of Series C Preferred are delivered to the Corporation
as provided above, or the holder notifies the Corporation that such
certificate has been lost, stolen or destroyed and executes an agreement
satisfactory to the Corporation to indemnify the Corporation from any loss
incurred by it in connection with such certificate.
The Corporation shall use its best efforts to issue and deliver
within three (3) business days after delivery to the Corporation of such
Series C Preferred certificate, or after such agreement and indemnification,
to such holder of Series C Preferred at the address of the holder on the stock
books of the Corporation, the certificates for the securities to which the
holder shall be entitled as aforesaid. The date on which conversion occurs
(the "Date of Conversion") shall be deemed to be date on which such notice of
conversion is faxed to the Corporation, provided the original certificate
representing the share of Series C Preferred to be converted is received by
the Corporation within three (3) business days thereafter, and the person and
persons entitled to receive the shares of the Corporation's Common Stock and
warrants or the shares of the common stock of OVH, Inc. issuable upon such
conversion shall be treated for all purposes as the record holder or holders
of such shares of the common stock on the Date of Conversion. If the original
certificates representing the shares of Series C Preferred to be converted are
not so received by the Corporation within such three (3) business day period,
the notice of conversion shall become null and void.
(c) Conversion Ratio. The share of Series C Convertible
Preferred Stock may be converted into either (i) 400,000 restricted shares of
the Corporation's Common Stock and warrants to purchase 400,000 restricted
shares of Common Stock at an exercise price of $2.50 per share or (ii) 100% of
the issued and outstanding shares of common stock of OVH, Inc., a Nevada
corporation.
The warrants will expire one year from the date a registration
statement registering the resale of the shares of common stock issuable upon
exercise of the warrant is declared effective by the Securities and Exchange
Commission. In the event that the Corporation is unable to register the
resale of such shares, the warrants will expire three years from the date of
issuance.
(d) Adjustment of Conversion Rate. If the Corporation
shall at any time, or from time to time, after the effective date hereof
effect a subdivision of the outstanding Common Stock and not effect a
corresponding subdivision of the Series C Convertible Preferred Stock, or if
the Corporation at any time or from time to time after the effective date
hereof shall make or issue, or fix a record date for the determination of
holders of Common Stock entitled to receive, a dividend or other distribution
payable in additional shares of Common Stock, then and in each such event the
number of shares of Common Stock issuable upon conversion of the Series C
Convertible Preferred Stock shall be proportionately increased as of the time
of such issuance or, in the event such a record date shall have been fixed, as
of the close of business on such record date.
(e) No Impairment. The Corporation will not, by amendment
of its Articles of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms to be observed or performed hereunder by the Corporation,
but will at all times in good faith assist in the carrying out of all of the
provisions of this Section 3 and in the taking of all such action as may be
necessary or appropriate in order to protect the Conversion Rights of the
holders of the Series C Convertible Preferred Stock against impairment.
(f) Reservations of Stock Issuable Upon Conversion. The
Corporation shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the shares of Series C Convertible Preferred
Stock, such number of its shares of Common Stock as shall time to time be
sufficient to effect the conversion of all outstanding shares of Series C
Convertible Preferred Stock; and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the
conversion of all outstanding shares of Series C Convertible Preferred Stock,
the Corporation will take such corporate action as is necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purpose.
4. Status of Converted or Reacquired Stock. In case the share
of Series C Convertible Preferred Stock shall be converted pursuant to Section
3 hereof, the share so converted shall be retired and cancelled and shall be
restored to the status of an authorized but unissued share of preferred stock
of the Corporation, without designation as to series, and may thereafter be
issued.
5. Redemption Provisions. The share of Series C Convertible
Preferred Stock is redeemable as follows:
(a) Redemption at Option of Corporation. Commencing six
months after the date on which the share of Series C Convertible Preferred
Stock is issued, the Corporation may redeem the share at the price described
in subparagraph (b) below upon 15 days prior written notice.
(b) Redemption price. Payment of the redemption price
shall be made by transferring to the holder 100% of the issued and outstanding
shares of the Common Stock of OVH, Inc., a Nevada corporation.
(c) Notice of Redemption. Notice to the holder of the
share of Series C Convertible Preferred Stock to be redeemed shall be given
not earlier that 30 days nor later than 15 days before the date fixed for
redemption. The notice of redemption shall specify the date fixed for
redemption and the redemption price at which the share of Series C Convertible
Preferred Stock is to be redeemed, and shall specify where payment of the
redemption price is to be made upon surrender of such share, and that the
conversion rights of such share shall cease and terminate at the close of
business on the date fixed for redemption.
6. Voting Rights. The share of Series C Convertible Preferred
Stock shall not be entitled to any voting rights.
7. Preferences Generally. The Corporation shall not authorize
or issue any securities having any rights or preferences senior or
preferential to those of the Series C Convertible Preferred Stock without the
written consent of the holders of the Series C Convertible Preferred Stock in
addition to any other vote required by law.
8. Notices. Any notice required to be given to holders of
shares of Series C Convertible Preferred Stock shall be deemed given upon
deposit in the United States mail, postage prepaid, addressed to such holder
of record at his address appearing on the books of the corporation, or upon
personal delivery of the aforementioned address.
THIRD: This Amended Certificate of Designation was authorized by the
vote of the Board of Directors on September 13, 2002.
FOURTH: The Amended Certificate of Designation effected herein was duly
adopted in accordance with the applicable provisions of NRS 78.385.
IN WITNESS WHEREOF, Odyssey Marine Exploration, Inc. has caused this
Certificate of Designation to be signed and acknowledged by its President and
Secretary this 17th day of September 2002.
ATTEST: ODYSSEY MARINE EXPLORATION, INC.
/s/ Dave Morris By:/s/ John C. Morris
Dave Morris, Secretary John C. Morris, President
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
I, Virginia M. Manes, a Notary Public, hereby certify that on the 17th
day of September 2002, personally appeared before me, John C. Morris and David
A. Morris, President and Secretary, respectively, of Odyssey Marine
Exploration, Inc., who being by me first duly sworn, declared that they signed
the foregoing document and that they are above the age of eighteen years and
that the statements contained therein are true and correct to the best of
their knowledge and belief.
IN WITNESS WHEREOF, I have hereunder set my hand and official seal.
/s/ Virginia M. Manes
Notary Public
[ S E A L ] My commission expires: April 21, 2006