THIS NOTE PURCHASE AGREEMENT (this Agreement) is made and entered into as of November 26, 2019, by and between ODYSSEY MARINE EXPLORATION, INC., a Nevada corporation (the Company), and 37North Capital SPV 11, LLC (the Lender). Capitalized terms not otherwise defined in this Agreement shall have the meanings ascribed to them in Section 1 below.
A. On the terms and subject to the conditions set forth in this Agreement, the Lender has agreed to loan to the Company, in one or more transactions (each such transaction, a Loan), up to $2,000,000.
B. Each Loan shall be evidenced by a convertible promissory note issued to the Lender, the form of which is attached hereto as Exhibit A (each, a Note), in the amount of such Loan.
NOW, THEREFORE, in consideration of the foregoing, and the representations, warranties, and covenants set forth below, the parties, intending to be legally bound, hereby agree as follows:
Section 1. Definitions. The following terms shall have the meanings set forth below:
(a) Applicable Conversion Rate means (i) with respect to any conversion on or prior to the Maturity Date, $5.00, and (ii) with respect to any conversion after the Maturity Date, the lower of (A) $5.00 and (B) 80.0% of the Ten-Day VWAP.
(b) Common Stock means the Companys common stock, par value $0.0001 per share.
(c) Conversion Shares means the shares of Common Stock issuable upon conversion of the Notes pursuant to Section 2(b).
(d) Maturity Date means the date that is six months after the date of this Agreement.
(e) Outside Date means the date that is 30 days after the date of this Agreement.
(f) Principal Market means the Nasdaq Capital Market.
(g) Ten-Day VWAP means the arithmetic average of the VWAP of the Common Stock for each day in the ten (10) consecutive trading day period ending and including the trading day immediately preceding the day on which the Lender delivers an Election Notice (as defined below) to the Company.
(h) Transaction Documents means this Agreement and the Notes.
(i) VWAP means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg Financial Markets. If the VWAP cannot be calculated for such security on such date on any of the foregoing basis, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Lender. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.