sv3
As
filed with the Securities and Exchange Commission on July 15, 2011
Registration No. ________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PREMIER EXHIBITIONS, INC.
(Exact name of registrant as specified in its charter)
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Florida
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20-1424922 |
(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number) |
3340 Peachtree Road, NE, Suite 900
Atlanta, Georgia 30326
(404) 842-2600
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Christopher Davino
President and Chief Executive Officer
Premier Exhibitions, Inc.
3340 Peachtree Road, NE, Suite 900
Atlanta, Georgia 30326
Tel: (404) 842-2600
Fax: (404) 842-2626
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Robert A. Brandon, Esq.
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Derek D. Bork, Esq. |
General Counsel
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Thompson Hine LLP |
Premier Exhibitions, Inc.
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3900 Key Center |
3340 Peachtree Road, NE, Suite 900
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127 Public Square |
Atlanta, Georgia 30326
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Cleveland, Ohio 44114 |
Tel: (404) 842-2600
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Tel: (216) 566-5500 |
Fax: (404) 842-2626
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Fax: (216) 566-5800 |
Approximate date of commencement of proposed sale to the public: From time to time after this
Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box.
þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and
smaller reporting company in Rule 12b- 2 of the Exchange Act.
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company þ |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Title of each class |
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Proposed maximum |
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Proposed maximum |
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of securities to be |
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Amount to be |
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offering price per |
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aggregate offering |
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Amount of |
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registered |
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registered |
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share (2) |
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price (2) |
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registration fee |
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Common Stock, par value $.0001 per share |
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5,298,330 |
(1) |
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$ |
1.73 |
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9,166,111 |
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1,064.19 |
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(1) |
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The shares being registered include 5,298,330 shares issuable to Lincoln Park Capital
Fund, LLC. Pursuant to Rule 416 under the Securities Act of 1933, this registration statement
shall be deemed to cover additional shares that may be issued to prevent dilution resulting
from any stock split, stock dividend, recapitalization, exchange or similar transaction. |
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Pursuant to Rule 457(c) of the Securities Act of 1933, the proposed maximum offering price
per share and the proposed maximum aggregate offering price have been computed on the basis of
$1.73 per share, the average of the high and low sales prices of the common stock of the
registrant reported on The NASDAQ Global Market on July 8, 2011. |
The Registrant hereby amends this registration statement on such date or dates as may be
necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
Subject
to Completion, dated July 15, 2011
Preliminary Prospectus
The information in this prospectus is not complete and may be changed. The Registrant may not sell
these securities until the registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities, and the Registrant is not
soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PROSPECTUS
Premier Exhibitions, Inc.
5,298,330 Shares of Common Stock
This prospectus relates to the resale of up to 5,298,330 shares of our common stock, par value
$.0001 per share, from time to time, which may be sold by the selling stockholder, Lincoln Park
Capital, LLC (the selling stockholder or LPC). The shares of common stock being offered by the
selling stockholder are issuable pursuant to the LPC Purchase Agreement, which we refer to in this
prospectus as the Purchase Agreement. Please refer to the section of this prospectus entitled The
LPC Transaction for a description of the Purchase Agreement and the section entitled Selling
Stockholder for additional information. The prices at which LPC may sell the shares will be
determined by the prevailing market price for the shares or in negotiated transactions.
The selling stockholder will receive all of the proceeds from any sales of our common stock
made pursuant to this prospectus. Accordingly, we will receive no proceeds from sales of our common
stock made pursuant to this prospectus. However, we may receive up to $10,000,000 under the
Purchase Agreement with LPC. We are paying the expenses of registering the shares covered by this
prospectus and preparing this prospectus, but the selling stockholder will pay any selling expenses
incurred by it in connection with the shares of common stock covered by this prospectus.
The selling stockholder is an underwriter within the meaning of the Securities Act of 1933,
as amended (the Securities Act).
Our common stock is registered under Section 12(b) of the Securities Exchange Act of 1934 and
listed on the NASDAQ Global Market under the symbol PRXI. On July 8, 2011, the closing price of
our common stock on the NASDAQ Global Market was $1.72 per share. We have applied to have the
shares of stock offered pursuant to this prospectus approved for listing on the NASDAQ Global
Market.
On May 20, 2011, we entered into a Purchase Agreement with LPC covering the sale or issuance
to it of up to $10,000,000 of our common stock. On that date, of the 48,395,213 outstanding shares
of our common stock, non-affiliates held 26,422,793 shares and affiliates held 21,972,420 shares.
At the last reported sale price of our common stock on May 20, 2011 of $1.70 per share, the market
value of the shares held by non-affiliates was $44,918,748. At that per share price, the market
value of the $10,000,000 of shares issuable under the Purchase Agreement would be 22.3% of the
number and market value of the shares held by non-affiliates on May 20, 2011.
This prospectus is part of a registration statement on Form S-3 that we filed with the
Securities and Exchange Commission. During the twelve calendar month period prior to and ending on
the date of this prospectus, we have not offered or sold any shares of common stock pursuant to
General Instruction I.B.6. of Form S-3 other than the shares covered by this prospectus.
Investing in our common stock involves certain risks. Please see the section entitled Risk
Factors beginning on page 5 of this prospectus to read about risks you should consider before
buying our common stock.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is July 15, 2011
INFORMATION CONTAINED IN THIS PROSPECTUS
In this prospectus, Premier, the Company, we, us and our refer to Premier
Exhibitions, Inc., a Florida corporation, and its subsidiaries, taken as a whole, unless the
context otherwise requires. We reorganized our corporate structure on October 14, 2004. As a
result, the name of our company changed from RMS Titanic, Inc. to Premier Exhibitions, Inc.
We have not authorized any dealer, salesperson or other person to give you any information or
to make any representations to you, other than those contained or incorporated by reference in this
prospectus, in connection with the offer contained in this prospectus and, if given or made, you
should not rely on such information or representations as having been authorized by us.
This prospectus does not constitute an offer to sell, or a solicitation of an offer to buy,
securities other than those specifically offered hereby or of any securities offered hereby in any
jurisdiction where, or to any person to whom, it is unlawful to make such offer or solicitation.
The information contained in this prospectus speaks only as of the date of this prospectus unless
the information specifically indicates that another date applies.
This prospectus has been prepared based on information provided by us and by other sources
that we believe are reliable. In addition, this prospectus summarizes certain documents and other
information in a manner we believe to be accurate, but we refer you to the actual documents, if
any, for a more complete understanding of the documents that we discuss in this prospectus. In
making a decision to invest in our common stock, you must rely on your own examination of the
company and the terms of the offering and the common stock, including the merits and risks
involved.
We incorporate by reference important information into this prospectus. You may obtain the
information incorporated by reference by following the instructions under Where You Can Find More
Information. You should carefully read this prospectus as well as additional information described
under Incorporation by Reference before deciding to invest in shares of our common stock.
We are not making any representation to you regarding the legality of an investment in our
common stock by you under any legal investment or similar laws or regulations. You should not
consider any information in this prospectus to be legal, business, tax or other advice. You should
consult your own attorney, business advisor and tax advisor for legal, business and tax advice
regarding an investment in the common stock.
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SUMMARY
The following summary highlights information about the offering of common stock covered by
this prospectus, but it may not contain all of the information that is important to you. You should
read the entire prospectus carefully, including our financial statements incorporated by reference
from the annual and quarterly reports we have filed with the Securities and Exchange Commission,
exhibits to the registration statement of which this prospectus is a part and all documents
incorporated herein by reference. You should also read Risk Factors beginning on page 5 for more
information about important risks that you should consider before investing in our common stock.
Premier Exhibitions, Inc.
Our Company
Premier Exhibitions, Inc. is in the business of presenting to the public museum-quality
touring exhibitions around the world. Since the Companys establishment, we have developed,
deployed, and operated unique exhibition products that are presented to the public in exhibition
centers, museums, and non-traditional venues. Income from exhibitions is generated primarily
through ticket sales, third-party licensing, sponsorships and merchandise sales. Our touring
exhibitions usually span four to six months. The stationary exhibitions are longer-term
engagements which are located in New York, New York, Las Vegas, Nevada, and Atlanta, Georgia. In
addition to the exhibitions noted above, we expect to open an additional stationary Dialog in the
Dark exhibition in New York, New York, during the second quarter of fiscal 2012. In addition to
developing new content for future exhibitions, the Company continually evaluates its touring
capacity and may expand or contract to suit the addressable market for its content.
We first became known for our Titanic exhibitions, which we conduct through our wholly-owned
subsidiary RMS Titanic, Inc., and which present the story of the ill-fated ocean liner, the R.M.S.
Titanic (the Titanic). The Titanic has captivated the imaginations of millions of people
throughout the world since 1912 when she struck an iceberg and sank in the North Atlantic on her
maiden voyage approximately 400 miles off the coast of Newfoundland. More than 1,500 of the 2,228
lives on board the Titanic were lost.
We have approximately 5,500 Titanic artifacts to present at our exhibitions. We own
approximately 2,000 of the artifacts. We have a salvors lien on the remainder of the artifacts..
In 1994, a federal district court declared us Salvor-in-Possession of the Titanic wreck and wreck
site, and, as such, we have the exclusive right to recover objects from the Titanic wreck site.
Through our explorations, we have obtained and are in possession of the largest collection of data,
information, images and cultural materials associated with the Titanic shipwreck. We believe that
our Salvor-in-Possession status puts us in the best position to provide for the archaeological,
scientific and educational interpretation, public awareness, historical conservation and
stewardship of the Titanic shipwreck. As of May 31, 2011 we were configured to operate 7
concurrent Titanic exhibitions, of which 6 were presented at venues and one touring show was idle
during the first quarter of fiscal 2012.
In 2004, we diversified our exhibitions beyond the Titanic and into human anatomy by acquiring
licenses that give us rights to present exhibitions of human anatomy sets, each of which contains a
collection of whole human body specimens plus single human organs and body parts. As of May 31,
2011 we were configured to present 9 concurrent human anatomy exhibitions. All 9 of these
exhibitions were presented at venues during the first quarter of fiscal 2012. We plan to return
one Bodies set used in two touring exhibits as the lease term expires during the third quarter of
fiscal 2012. One of these touring exhibits has been in storage since April 2011, pending its
return.
In 2008, we further expanded our exhibition portfolio when we entered into a long-term license
agreement to present an exhibition series entitled Dialog in the Dark. Our Dialog in the Dark
exhibitions are intended to provide visitors with an opportunity to experience the paradox of
learning to see without the use of sight. Visitors are escorted through a series of galleries
immersed in total darkness and challenged to perform tasks without the use of vision. As of May
31, 2011 we were configured to present one Dialog in the Dark exhibition in Atlanta, Georgia.
We are currently in the process of developing a new Dialog in the Dark exhibit in New York City,
with opening planned for the summer of 2011. Additional expansion is also under review.
In the year ended February 28, 2009 (fiscal 2009), the Company began to see a decline in
attendance at both the Bodies and Titanic exhibitions which adversely impacted earnings. Also, the
Company spent significant capital pursuing new exhibition concepts that never materialized. By the
end of fiscal 2009, with senior members of management leaving the Company and the Company under
significant financial distress, stockholders voted to change the composition of the Board of
Directors. In January of 2009, the new Board terminated the Chief Executive Officer, and installed
new senior management.
During the year ended February 28, 2010 (fiscal 2010), the new Board and senior management
began comprehensive efforts to turn around the profitability of the Company by restructuring the
business and raising capital. Management reduced the size
Page 1
of the headquarters operations and began to rationalize the number of Bodies shows touring,
reducing touring capacity in June of 2009 from 16 to 13 concurrent Bodies shows, and also
negotiated the early termination a previously presented Star Trek exhibition, eliminating three
touring shows. Dialog in the Dark was scaled back to only one show installed long-term in Atlanta.
These touring capacity adjustments were made to eliminate unprofitable shows and bring capacity in
line with the Companys ability to keep shows touring profitably. The Company also issued
convertible notes worth $12 million in order to properly capitalize the business. Management also
worked to mend or end relationships with trade partners that had become strained under the prior
management, which in certain cases required significant working capital.
Management also created a process to evaluate and develop new content that can be used to
create new touring exhibitions. Other more generic processes were implemented to support
traditional business decisions ranging from human resources management to financial planning and
analysis. Additionally, management began to strategize on ways to expand the Titanic model beyond
the exhibition business to broaden the Companys reach and to capitalize on the 100 year
anniversary of the sinking of the Titanic in 2012.
In an effort to further stabilize the Company and grow, during fiscal 2010 management
implemented a process designed to identify, quantify and manage the risk and returns associated
with taking existing exhibitions into a given market and operating these exhibitions without
museums or third party promoters. Management initially believed that self-operating exhibitions
would be optimal as it would allow us to maintain more control of the exhibitions and would also
allow us to retain 100 percent of the profit from the exhibitions as opposed to sharing that profit
with a museum or promoter. Based on this strategy, the Company began to increase its self-operated
exhibitions in fiscal 2010 and continued expansion into the year ended February 28, 2011 (fiscal
2011). However, the Company experienced lower than anticipated attendance at its self-operating
touring Bodies exhibitions in fiscal 2011. As the sole operator of the exhibitions, the Company
had to bear the full cost of the exhibits, lowering gross margins and profits in fiscal 2011.
At the end of the third quarter of fiscal 2011, 11 of our 14 Bodies shows toured in largely
self-operated, temporary exhibits at non-branded venues. Specimens used in these exhibits were
leased or licensed and were made available to the Company for display at significant cost. With
several of the licenses for these specimens expiring, and considering the recent attendance
patterns, management determined the best option was to return the specimens to their owner, as the
license agreements ended, and cease operating these exhibits. Based on this analysis and the
impact that touring self-operating Bodies exhibitions had on the Companys results of operations
through the third quarter of fiscal 2011, in January 2011 the Company announced its intentions to
discontinue its touring self-operated Bodies exhibitions. Going forward, the Company will focus on
touring Bodies, as well as the Titanic exhibitions, Dialog in the Dark, and new content, primarily
with promoters and museums. As a result of returning specimens the Company has significantly
reduced its fixed operating lease costs. The majority of the Companys remaining specimens
available to tour have significantly lower costs. In connection with the reduction in Bodies
touring capacity, the Company also embarked upon an aggressive reduction in general and
administrative expenses.
The Company invested approximately $5.5 million of capital during fiscal 2011, due to both the
lack of historical investment in the core business as well as scope and breadth of the Companys
initiatives at the time. This capital investment was primarily related to the 2010 expedition to
the Titanic wreck site and the revitalization of certain exhibitions.
Risk Factors
An investment in our common stock involves certain risks. You should read the Risk Factors
section beginning on page 5 of this prospectus (along with other matters referred to and
incorporated by reference in this prospectus) to ensure that you understand the risks associated
with a purchase of our common stock.
Our Contact Information and Websites
Premiers principal executive offices are located at 3340 Peachtree Road, NE, Suite 900,
Atlanta, Georgia 30326 and the Companys telephone number is (404) 842-2600. The Company is a
Florida corporation and maintains websites located at: www.prxi.com,
www.rmstitanic.net, www.expeditiontitanic.com, www.bodiestheexhibition.com,
www.bodiestickets.com, www.titanictix.com, and www.bodiesrevealed.com.
Information on Premiers websites is not part of this prospectus.
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The Offering
On May 20, 2011, we executed a Purchase Agreement and a Registration Rights Agreement with
Lincoln Park Capital Fund, LLC (LPC). Under the Purchase Agreement, we have the right to sell to
LPC up to $10,000,000 of our common stock at our option as described below.
Pursuant to the Registration Rights Agreement, we are filing this registration statement and
prospectus with the Securities and Exchange Commission (the SEC) covering shares that have been
issued or may be issued to LPC under the Purchase Agreement. We do not have the right to commence
any sales of our shares to LPC until the SEC has declared effective the registration statement of
which this prospectus is a part. After the registration statement is declared effective
(Commencement Date), we will have the right, but not the obligation, to direct LPC to purchase
$1,250,000 worth of our shares (Initial Purchase Shares). The purchase price per share of the
Initial Purchase Shares will be equal to the lesser of (i) 90% of $1.70, the closing price on the
date of the Purchase Agreement, (ii) 90% of the average closing sale price for the ten consecutive
business days prior to the Commencement Date, or (iii) the lowest sale price on the business day
prior to the Commencement Date. If we elect to sell the Initial Purchase Shares to LPC, we will
also be required to issue to LPC warrants to purchase shares of our common stock equivalent to
37.5% of the Initial Purchase Shares, with an exercise price of $2.25 per share and a term of five
years.
Thereafter, over approximately 36 months, we have the right to direct LPC to purchase up to
the balance of the $10,000,000 of our common stock in amounts up to 100,000 shares as often as
every two business days under certain conditions. We can also accelerate the amount of our stock
to be purchased under certain circumstances. No sales of shares may occur below $1.00 per share.
There are no trading volume requirements or restrictions under the Purchase Agreement, and we will
control the timing and amount of any sales of our common stock to LPC. The purchase price of the
shares will be based on the market prices of our shares immediately preceding the time of sale as
computed under the Purchase Agreement without any fixed discount. We may at any time in our sole
discretion terminate the Purchase Agreement without fee, penalty or cost upon one business day
notice. LPC may not assign or transfer its rights and obligations under the Purchase Agreement.
We issued 149,165 shares of our stock to LPC as a commitment fee for entering into the Purchase
Agreement, and we may issue up to 149,165 shares as additional commitment shares on a pro rata
basis as LPC purchases up to $10,000,000 of our common stock as directed by us.
As of July 8, 2011, there were 48,274,348 shares outstanding (26,296,928 shares held by
non-affiliates), excluding the 149,165 shares which we have already issued and LPC is offering
pursuant to this prospectus. The 5,298,330 shares offered pursuant to this prospectus include
149,165 shares that we issued to LPC as a commitment fee and 149,165 shares that we may issue pro
rata as up to $10,000,000 of our stock is purchased by LPC, with the remainder representing shares
we may sell to LPC under the Purchase Agreement or shares underlying warrants that we may issue
pursuant to the Purchase Agreement. If all of the 5,298,330 shares offered by LPC pursuant to this
prospectus were issued and outstanding as of the date hereof, such shares would represent 9.9% of
the total common stock outstanding or 16.8% of the non-affiliates shares outstanding, as adjusted,
as of the date hereof. If we elect to issue more than the 5,298,330 shares offered pursuant to
this prospectus, which we have the right but not the obligation to do, we must register under the
Securities Act any additional shares we may elect to sell to LPC before we can sell such additional
shares, which could cause substantial dilution to our stockholders. The number of shares
ultimately offered for sale by LPC is dependent upon the number of shares purchased by LPC under
the Purchase Agreement.
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Securities Offered
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Common stock to be offered by the selling stockholder
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5,298,330 shares consisting of: |
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149,165 initial commitment shares issued to LPC; |
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149,165 shares that we are required to issue to
LPC proportionally in the future, as a commitment fee, if
and when we sell additional shares to LPC under the
Purchase Agreement; |
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The remainder represents shares that we may sell
to LPC under the Purchase Agreement and shares underlying
warrants we may issue to LPC pursuant to the Purchase
Agreement. |
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Common stock outstanding prior to this offering
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48,423,513 (including 149,165 initial commitment shares
issued by us to LPC in consideration for entering into
the Purchase Agreement) as of July 8, 2011 |
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Common stock to be outstanding after giving
effect to the issuance of 5,298,330 shares
under the Purchase Agreement
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53,572,678 shares |
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Use of proceeds
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We will receive no proceeds from the sale of shares of
common stock by LPC in this offering. However, we may
receive up to $10,000,000 under the Purchase Agreement
with LPC. Any proceeds that we receive from sales to LPC
under the Purchase Agreement will be used for working
capital and for general corporate purposes. See Use of
Proceeds. |
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Risk factors
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This investment involves certain risks. See Risk
Factors for a discussion of factors you should consider
carefully before making an investment decision. |
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Symbol on NASDAQ Global Market
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PRXI |
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RISK FACTORS
You should carefully consider the risks described below before purchasing our common stock.
The risks and uncertainties described below are not the only ones we face. If any of the risks or
uncertainties discussed below and elsewhere in our reports, including, but not limited to, the
section titled Managements Discussion and Analysis of Financial Condition and Results of
Operations and in the consolidated financial statements and the related notes included in our Form
10-K and Forms 10-Q, were to occur, our business, financial condition and results of operations
could be seriously harmed. Additional risks and uncertainties not currently known to us or that we
presently deem to be immaterial could also seriously harm our business, financial condition and
results of operations.
Risk Factors Related to Owning Our Common Stock and to this Offering
The sale of our common stock to LPC may cause dilution and the sale of the shares of common
stock acquired by LPC could cause the price of our common stock to decline.
In connection with entering into the Purchase Agreement, we authorized the issuance to LPC of
up to 5,298,330 shares of our common stock. The number of shares ultimately offered for sale by
LPC pursuant to this prospectus is dependent upon the number of shares purchased by LPC under the
Purchase Agreement. The purchase price for the common stock to be sold to LPC pursuant to the
Purchase Agreement will fluctuate based on the price of our common stock. All 5,298,330 shares
registered in this offering are expected to be freely tradable. It is anticipated that shares
registered in this offering will be sold over a period of up to 36 months from the date of this
prospectus. Depending upon market liquidity at the time, a sale of shares in this offering at any
given time could cause the trading price of our common stock to decline. We can elect to direct
purchases in our sole discretion but no sales may occur if the purchase price of our common stock
is below $1.00 and therefore, LPC may ultimately acquire all, some or none of the 5,298,330 shares
of common stock not yet issued but registered in this offering (other than the 149,165 shares that
we already issued to LPC as a commitment fee in consideration for entering into the Purchase
Agreement). After it has acquired such shares, it may sell all, some or none of such shares.
Therefore, sales to LPC by us under the Purchase Agreement may result in substantial dilution to
the interests of other holders of our common stock. We have the right to control the timing and
amount of any sales of our shares to LPC and the agreement may be terminated by us at any time at
our discretion without any cost to us. However, the sale of a substantial number of shares of our
common stock in this offering, or anticipation of such sales, could make it more difficult for us
to sell equity or equity-related securities in the future at a time and at a price that we might
otherwise wish to effect sales.
The price of our common stock may fluctuate significantly, and investors in our common stock
could see the value of our common stock decline materially. In addition, the recent trading level
of our stock could subject us to delisting by NASDAQ.
The stock market has recently experienced, and may experience in the future, extreme price and
volume fluctuations. This volatility has had a significant impact on the market price of securities
issued by many companies, including companies in our industry. Such changes may occur without
regard to the operating performance of these companies. The price of our common stock could
fluctuate based upon factors that have little or nothing to do with our Company, and these
fluctuations have and could materially reduce our stock price in the future. In addition, potential
dilutive effects of future sales of shares of common stock by stockholders and by the Company,
including LPC pursuant to this prospectus, and subsequent sale of common stock by the holders of
warrants and options could have an adverse effect on the market price of our shares.
Moreover, companies that have had volatile market prices for their securities have been
subject to securities class action lawsuits. Any such lawsuit filed against us, regardless of the
outcome, could result in substantial legal costs and a diversion of our managements attention and
resources, which in turn could seriously harm our business, results of operations and financial
condition.
During fiscal 2010, our common stock traded at levels below $1.00 per share. Under NASDAQs
rules, a listed security is in non-compliance with NASDAQ listing rules if it fails to achieve at
least a $1.00 closing bid price for a period of 30 consecutive business days. On September 15,
2009, the Company received a notice of deficiency from the NASDAQ Global Market regarding the
Companys non-compliance with the minimum bid price listing rules. On October 16, 2009, the NASDAQ
Global Market provided the Company with written confirmation of compliance with the minimum bid
price listing rule after the closing bid price of the Companys common stock reached $1.00 per
share or more for ten consecutive business days. For a variety of reasons, it is possible that we
could again violate the minimum bid price or other NASDAQ requirements. If our stock is delisted
from NASDAQ, interest in, and the ability to trade our stock, could decline, which could have a
negative impact on the market value of our common stock and our ability to raise capital in the
future. In addition, if our stock were delisted, we would be unable to sell shares to LPC under
the Purchase Agreement.
Page 5
Risk Factors Related to Our Business
Our cash flows from operations may not improve sufficiently to finance our ongoing operations
or to make investments necessary for future growth without the need for additional financing.
We can provide no assurances that our cash flow from operations will improve sufficiently to
finance our ongoing operations or to make investments necessary for future growth. During fiscal
2011, we incurred a net loss of $12.5 million and our cash balance was approximately $3.8 million
as of February 28, 2011. We currently do not have access to a revolving credit facility. We have
recently announced efforts to significantly reduce general and administrative expense and to
eliminate unprofitable touring capacity in the Bodies business. However, there can be no assurance
that our cash flows from operations will improve sufficiently during the next 12 months to fund our
ongoing operations beyond that time. We might need to raise additional financing, which might not
be available to us or might only be available to us on terms that are not favorable. If we are
unable to sufficiently improve our financial performance or obtain financing, if and when we may
need it, we may not be able to continue operations as they are currently anticipated or we may be
unable to make capital investments needed for our existing exhibits or to develop new exhibits.
We may not be able to access the full amounts available under the Purchase Agreement, which
could prevent us from accessing the capital we need to continue our operations which could have an
adverse affect on our business.
Under the Purchase Agreement, we may direct LPC to purchase up to $10,000,000 worth of shares
of our common stock over a 36-month period. On any trading day selected by us, we may sell to LPC
up to 100,000 shares of common stock by delivering a purchase notice to LPC. LPC does not have the
right or the obligation to purchase any shares of our common stock on any business day that the
market price of our common stock is less than $1.00. To the extent that the market price of our
common stock is below $1.00 per share on a trading day, we would not receive any proceeds under the
Purchase Agreement for that day. We may direct LPC to purchase an additional 100,000 shares of our
common stock provided on the purchase date our share price is not below $3.00 per share. Depending
on the prevailing market price of our common stock, we may not be able to sell shares to LPC for
the maximum $10,000,000 over the term of the agreement. In addition, we are only registering
5,000,000 shares of our common stock pursuant to this prospectus for issuance as purchase shares or
shares underlying a warrant. Assuming a purchase price of $1.72 per share, the closing sale price
of our common stock on July 8, 2011, and the issuance to LPC of 5,000,000 purchase shares, the
proceeds to us would only be $8,600,000. In the event we elect to issue more than 5,298,330
shares, we would be required to file a new registration statement and have it declared effective by
the SEC.
The plans of our largest stockholder to sell its block of common stock could have an effect on
our stock price and could result in changes to the strategic direction of the Company.
The Companys largest stockholder, Sellers Capital Master Fund, Ltd. (SCF), informed the
Company that at the request of the funds investors it intended to return all capital to them. When
SCF initially reached this decision in June 2010, it had planned to attempt to locate a single
purchaser for the funds 46 percent equity investment in our common stock over the following 12 to
18 months. At the request of the Board and Mark Sellers, Chairman of the Board of Premier
Exhibitions, Inc. and Managing Member of Sellers Capital, LLC, a committee of the Board engaged its
investment banker to attempt to locate an appropriate buyer for the funds equity investment who
would commit to the multi-year plan presented to the U.S. District Court for the Eastern District
of Virginia, Norfolk Division, in November 2009 regarding expanding the Companys role as trustee
of the Titanic wreck site in conjunction with the ongoing litigation described under Legal
Proceedings in our Form 10-K.
On October 7, 2010 Mr. Sellers informed the Company that SCF was no longer marketing its 46
percent ownership stake in Premier, and further that SCF no longer has a specific time frame within
which to sell its stake in Premier. Instead, Mr. Sellers indicated that SCF would retain its
shares in the Company until such time as it could obtain what he believes to be a better value for
the shares.
Management does recognize, however, that if a suitable buyer is not identified at the
appropriate time, Mr. Sellers may choose to take another course of action, including potentially
selling the shares in the open market or in a privately negotiated transaction or distributing the
SCF shares to the funds limited partners.
The plans of our largest stockholder to sell its block of common stock could have a negative
effect on our stock price and could result in changes to the strategic direction of the Company.
The announcement will not likely result in a change in the Companys ownership in the short term,
but could serve to destabilize the trading price of our common stock. In addition, a single
purchaser of the 46 percent block of common stock could also acquire effective control of the
Company. Such a stockholder may not agree with the present strategic direction of the board of
directors and management, creating uncertainty that the current strategic focus of the Company will
continue over the longer term.
Page 6
We may not be granted a salvage award that is commensurate with the efforts we have expended
to recover items from the Titanic wreck site or may be prohibited from exhibiting certain of the
Titanic artifacts already under our control.
In November 2007, we filed a motion with the U.S. District Court for the Eastern District of
Virginia, Norfolk Division seeking an interim salvage award to compensate us for our efforts in
recovering certain items from the wreck of the Titanic. The court has recently granted us a salvage
award in the amount of approximately $110 million based on the fair market value of the artifacts
recovered. However, the court has until August 2011 to determine whether to satisfy the award by a
payment in cash or by an in specie award, which would grant us title to the artifacts. As a result,
the form of the award is uncertain. Our future plans for our Titanic exhibitions and for
expenditures to develop other exhibition properties will depend, in part, on the decision of the
court. Our ability or inability to put any cash or in specie award to its best use may affect our
results of operations and financial condition.
If we are unable to maintain our Salvor-in-Possession rights to the Titanic wreck and wreck
site, our Titanic exhibitions could face increased competition and we could lose the right to
exhibit certain Titanic artifacts.
As recently as January 31, 2006, the U.S. Court of Appeals for the Fourth Circuit recognized
that we are the exclusive Salvor-in-Possession of the Titanic wreck and wreck site. Our
Salvor-in-Possession status enables us to prevent third parties from salvaging the Titanic wreck
and wreck site and from interfering with our rights to salvage the wreck and wreck site. To
maintain our Salvor-in-Possession rights, we must maintain a presence over the wreck site as
interpreted by the courts. In addition, we may have to commence legal proceedings against third
parties who attempt to violate our rights as Salvor-in-Possession, which may be expensive and
time-consuming. Moreover, the court may not continue to recognize us as the sole and exclusive
Salvor-in-Possession of the Titanic wreck and wreck site. If we were to lose our
Salvor-in-Possession rights, our Titanic exhibitions could be exposed to competition, which could
harm our operating results.
We have recently filled a key vacant management position and our failure to successfully adapt
to changes in key management, and/or our inability to fill other vacant key positions, may
adversely affect our business.
Our Board of Directors has recently filled the vacant Chief Financial Officer role and is
considering the addition of a Chief Operating Officer position. Changes in key management and the
potential for additional appointments could create uncertainty among our employees, customers,
partners and promoters and could result in changes to the strategic direction of our business,
which could negatively affect our business, operating results and financial position. Any failure
of our management to work together to effectively manage our operations, our inability to hire
other key management, and any failure to effectively integrate new management into our controls,
systems and procedures may materially adversely affect our business, results of operations and
financial condition.
We believe that our future success depends to a significant degree on the skills and efforts
of our management team. If we lose the services of any of our current senior executive officers and
key employees, our ability to achieve our business objectives could be seriously harmed, in turn
adversely affecting our business and operating results.
Our business may be harmed as a result of litigation.
We are a party to several ongoing material legal proceedings. These proceedings are described
in Item 3 of Part I of our Form 10-K under the heading Legal Proceedings and also in the Legal
Proceedings and Contingencies footnote to our Consolidated Financial Statements included in our
Form 10-Q for the quarter ended May 31, 2011. Should an unfavorable outcome occur in some or all of
our current legal proceedings, or if successful claims and other actions are brought against us in
the future, our business, results of operations and financial condition could be seriously harmed.
We may have a risk of collection of our revenue from exhibitions presented by third parties.
We rely upon third parties to present some of our exhibitions and in many cases those third
parties operate the box office and control the sale of the tickets. As a result, we are subject to
the risk that we will be unable to collect our portion of the revenue from the exhibitions
presented by third party partners. Where we are unable to collect these revenues in accordance
with the terms of the contract, we may incur the cost of litigation to recover the amounts owed to
us and may ultimately not recover the full value of the receivable.
Continuing economic weakness may have a negative impact on our revenues and make it difficult
for us to obtain financing to operate our business.
Our results of operations are sensitive to changes in general economic conditions that impact
consumer spending, including discretionary spending for our exhibitions, both domestically and in
international markets where we operate. Discretionary consumer
Page 7
spending is impacted by higher levels of unemployment, fuel prices, weakness in the housing
markets, higher consumer debt levels, declines in consumer confidence in future economic
conditions, higher tax rates, higher interest rates, and other adverse economic conditions. The
economic slowdown, and other factors that cause consumers to reduce their discretionary spending to
a point where attendance at our exhibitions declines, negatively affect our revenues and results of
operations.
The economic weakness that continues in the financial markets and in the housing markets has
resulted in declines in consumer confidence and spending, volatility in securities prices,
diminished liquidity and credit availability and declining valuations of many investments. If the
national or global economy or credit market conditions in general were to deteriorate further in
the future, it is possible that such changes could put additional negative pressure on
discretionary consumer spending and other consumer purchasing habits, which would adversely affect
our operating results and make it more difficult for us to obtain financing to operate our
business.
Our inability to develop new exhibitions could seriously harm our results of operations and
financial condition.
Our business depends on our ability to develop and execute new exhibitions and new venues for
our existing exhibitions. If we are unable to develop new lines of exhibitions and new venues for
our existing exhibitions, our results of operations and financial condition could be seriously
harmed.
Our exhibition business is sensitive to public tastes. If we are unable to anticipate or
respond to changes in consumer preferences, demand for our exhibitions could decrease.
Our ability to generate revenue from our exhibitions is highly sensitive to changes in public
tastes. Our success depends in part on our ability to anticipate the preferences of consumers and
to offer appealing exhibitions. We typically book each exhibition venue several months in advance
of an exhibitions opening and incur certain upfront costs prior to our receiving any operating
income. Therefore, if the public is not receptive to a particular exhibition or location, we could
incur a loss depending on the amount of the incurred costs. Moreover, if we are not able to
anticipate, identify or react to changes in public tastes, reduced demand for our exhibitions will
likely result. Any of the foregoing could adversely affect our results of operations and financial
condition.
If our advertising, promotional and other marketing campaigns are not successful, our results
of operations could be harmed.
Like many other companies that make entertainment available to the public, we utilize
significant resources to advertise, promote and provide marketing support for our exhibitions. For
fiscal 2011 and 2010 we incurred marketing and advertising expenses of $10.2 million and $4.2
million, respectively. We are also party to agreements pursuant to which we engage third parties
to assist us in the production, design, promotion and marketing of our exhibitions. If our
advertising, promotional and other marketing campaigns are not successful, or if we are not able to
continue to secure on commercially reasonable terms the assistance of third parties in our
marketing and promotional activities, our results of operations will be harmed.
Events harming our reputation could adversely affect our business prospects, financial results
and stock price.
We are dependent on our reputation. Events that can damage our reputation include, but are not
limited to, legal violations, actual or perceived ethical problems, particularly related to our
human anatomy exhibitions, actual or perceived poor employee relations, actual or perceived poor
customer service, venue appearance or operational issues, or events outside of our control that
generate negative publicity with respect to our company. Any event that has the potential to
negatively impact our reputation could negatively affect our business prospects, financial results
and stock price.
Page 8
We are dependent upon our ability to locate effective venues for our exhibitions, either in
museums or in leased exhibition space. If we are unable to lease exhibition venues on acceptable
terms or to partner with museums to present our exhibitions, our results of operations could be
adversely affected.
We require access to exhibition venues owned or leased by third parties to conduct our
exhibitions. Our long-term success depends, in part, on our ability to utilize such venues on
commercially reasonable terms. Our ability to obtain new venue locations on favorable terms and in
desirable locations depends on a number of other factors, many of which are also beyond our
control, including but not limited to, international, national and local business conditions as
well as competition from other promoters and exhibitions. If we are not able to secure exhibition
locations on commercially reasonable terms and in desirable locations, our results of operations
and financial condition could be harmed. We also present our exhibitions in museums. If we are
unable to develop and maintain relationships with museums to present our exhibits, or if demand for
our exhibits from the museum community declines, our results of operations and financial condition
could be harmed.
Our exhibitions are becoming subject to increasing competition that could negatively impact
our operating results and financial condition.
Titanic exhibitions. Although we are currently the only entity that exhibits artifacts
recovered from the wreck site of the Titanic, we currently encounter competition from other Titanic
exhibitions that exhibit replicas of artifacts and memorabilia not obtained directly from the wreck
site. In addition, in the future we may encounter competition from other Titanic exhibitions or
events, as our Titanic exhibition business continues to change. For example, an adverse ruling in
1999 by the U.S. Court of Appeals for the Fourth Circuit left us with non-exclusive rights to
photograph and film the Titanic wreck site. As a result of this ruling, other companies can now
photograph and film the Titanic wreck site, which exposes us to increased competition that could,
for example, result in our loss of future exhibitions or other opportunities, such as documentary
film rights. Moreover, it is possible that other companies may, albeit in violation of our
Salvor-in-Possession rights, attempt to explore the Titanic wreck site in the future. If any of
these companies were successful, we would face increased competition as well as increased costs
necessary to defend and preserve our rights. The availability of remotely-operated vehicles for
charter from third parties to conduct expeditions may make it easier for others to gain access to
the Titanic site in violation of our Salvor-in-Possession rights. Any of these developments could
have an adverse impact on our financial performance.
Human anatomy exhibitions. Our human anatomy exhibitions face intense competition with other
human anatomy exhibitions similar to ours offered by various companies in the United States and
around the world. As a result, we may lose visitors to our exhibits based on competitors claims,
the proximity of competing exhibitions to ours, and our ability to advertise and otherwise entice
visitors to our exhibits in the extremely competitive marketplace. In addition, if a significant
number of new human anatomy exhibitions were to enter the same markets in which our exhibitions are
offered or are planned to be offered, attendance at our human anatomy exhibitions could decline and
our results of operations and financial condition could be harmed.
Other exhibitions. If we are successful in presenting new exhibitions, competitors may bring
similar exhibitions of their own to the market. To the extent competitors are successful at
marketing and promoting competing exhibitions, our results of operations and financial condition
could be harmed.
Through our co-promoters, we conduct exhibitions outside of the United States, which subjects
us to additional business risks that could increase our costs and cause our profitability to
decline.
During fiscal 2011, we derived approximately $6.9 million or 15.5% of our total revenue
(excluding film revenue) from exhibitions located outside of the U.S., which represents 43.3% of
our total attendance. We intend to continue to pursue international exhibition opportunities. Our
international exhibitions are subject to a number of risks, including the following:
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changes in foreign regulatory requirements; |
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difficulties in staffing, training and managing foreign operations; |
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changing and irregular enforcement of legal regulations; |
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difficulties in collecting amounts due from foreign partners; and |
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political and economic instability. |
We are also subject to risks arising from currency exchange rate fluctuations, which could
increase our costs and cause our profitability to decline. Our financial arrangements with foreign
vendors are mostly based upon foreign currencies. As a result, we are exposed to the risk of
currency fluctuations between the U.S. dollar and the currencies of the countries in which our
exhibitions are touring. The U.S. dollar value of our foreign-generated revenues varies with
currency exchange rate fluctuations. Significant volatility in the value of the U.S. dollar
relative to foreign currencies could harm our results of operations and financial condition.
Page 9
Certain aspects of our operations are subject to governmental regulation, and our failure to
comply with any existing or future regulations could seriously harm our business, results of
operations and financial condition.
Our exhibitions are subject to federal, state and local laws, both domestically and
internationally, governing various matters, such as:
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licensing and permitting; |
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health, safety, environmental and sanitation requirements; |
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working conditions, labor, minimum wage and hour, citizenship and employment laws;
and |
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sales, use and other taxes and withholding. |
We cannot predict the extent to which existing or future laws or regulations could impact our
operations. Although we generally contract with a third party for various services at our venues,
we cannot provide assurances that we or our third parties are in full compliance with all
applicable laws and regulations at all times, that we or our third parties will be able to comply
with any future laws and regulations or that we will not incur liabilities for violations by us or
third parties with which we maintain a relationship. Our failure or the failure of any of our third
parties with which we maintain a relationship to comply with laws and regulations could also cause
us to be subject to investigations or governmental actions that could seriously harm our business.
We may be unable to hire and retain the personnel we need and, as a result, could lose our
competitive position.
To meet our business objectives, we must continue to attract and retain skilled technical,
operational, managerial and sales and marketing personnel. We face significant competition for
these skilled professionals from other companies, research and academic institutions, government
entities and other organizations. If we fail to attract and retain the necessary personnel, we may
be unable to achieve our business objectives and may lose our competitive position, which could
harm our revenue. In addition, our recent efforts to reduce headcount and general and
administrative expenses may harm our ability to retain the personnel we need.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as amended (the
Exchange Act). Such forward-looking statements include statements regarding, among other things,
(a) our projected sales and profitability, (b) our growth strategies, (c) anticipated trends in our
industry, (d) our future financing plans, and (e) our anticipated needs for working capital.
Forward-looking statements, which involve assumptions and describe our future plans, strategies,
and expectations, are generally identifiable by use of the words may, will, should, expect,
anticipate, estimate, believe, intend, or project or the negative of these words or other
variations on these words or comparable terminology. This information may involve known and
unknown risks, uncertainties, and other factors that may cause our actual results, performance, or
achievements to be materially different from the future results, performance, or achievements
expressed or implied by any forward-looking statements. These statements may be found under
Managements Discussion and Analysis of Financial Condition and Results of Operations and
Business in our Form 10-K and Forms 10-Q, as well as in this prospectus generally. Actual events
or results may differ materially from those discussed in forward-looking statements as a result of
various factors, including, without limitation, the risks outlined under Risk Factors and matters
described in this prospectus generally. In light of these risks and uncertainties, there can be no
assurance that the forward-looking statements contained in this filing will in fact occur.
USE OF PROCEEDS
This prospectus relates to shares of our common stock that may be offered and sold from time
to time by the selling stockholder. We will receive no proceeds from the sale of shares of common
stock in this offering. However, we may receive proceeds up to $10,000,000 under the Purchase
Agreement. Any proceeds from LPC we receive under the Purchase Agreement will be used for working
capital and general corporate purposes.
Page 10
THE LPC TRANSACTION
General
On May 20, 2011, we executed a Purchase Agreement and a Registration Rights Agreement with
Lincoln Park Capital Fund, LLC (LPC). Under the Purchase Agreement, we have the right to sell to
LPC up to $10,000,000 of our common stock at our option as described below.
Pursuant to the Registration Rights Agreement, we are filing this registration statement and
prospectus with the Securities and Exchange Commission (the SEC) covering shares that have been
issued or may be issued to LPC under the Purchase Agreement. We do not have the right to commence
any sales of our shares to LPC until the SEC has declared effective the registration statement of
which this prospectus is a part. After the registration statement is declared effective
(Commencement Date), we will have the right, but not the obligation, to direct LPC to purchase
$1,250,000 worth of our shares (Initial Purchase Shares). The purchase price per share of the
Initial Purchase Shares will be equal to the lesser of (i) 90% of $1.70, the closing price on the
date of the Purchase Agreement, (ii) 90% of the average closing sale price for the ten consecutive
business days prior to the Commencement Date, or (iii) the lowest sale price on the business day
prior to the Commencement Date. If we elect to sell the Initial Purchase Shares to LPC, we will
also be required to issue to LPC warrants to purchase shares of our common stock equivalent to
37.5% of the Initial Purchase Shares, with an exercise price of $2.25 per share and a term of five
years.
Thereafter, over approximately 36 months, we have the right to direct LPC to purchase up to
$10,000,000 of our common stock, reduced by the amount of any Initial Purchase Shares, in amounts
up to 100,000 shares as often as every two business days under certain conditions. We can also
accelerate the amount of our stock to be purchased under certain circumstances. No sales of shares
may occur below $1.00 per share. There are no trading volume requirements or restrictions under
the Purchase Agreement, and we will control the timing and amount of any sales of our common stock
to LPC. The purchase price of the shares will be based on the market prices of our shares
immediately preceding the time of sale as computed under the Purchase Agreement without any fixed
discount. We may at any time in our sole discretion terminate the Purchase Agreement without fee,
penalty or cost upon one business day notice. LPC may not assign or transfer its rights and
obligations under the Purchase Agreement. We issued 149,165 shares of our stock to LPC as a
commitment fee for entering into the Purchase Agreement, and we may issue up to 149,165 shares as
additional commitment shares on a pro rata basis as LPC purchases up to $10,000,000 of our common
stock as directed by us.
As of July 8, 2011, there were 48,274,348 shares outstanding (26,296,928 shares held by
non-affiliates), excluding the 149,165 shares which we have already issued and LPC is offering
pursuant to this prospectus. The 5,298,330 shares offered pursuant to this prospectus include
149,165 shares that we issued to LPC as a commitment fee and 149,165 shares that we may issue pro
rata as up to $10,000,000 of our stock is purchased by LPC, with the remainder representing shares
we may sell to LPC under the Purchase Agreement or shares underlying warrants that we may issue
pursuant to the Purchase Agreement. If all of the 5,298,330 shares offered by LPC pursuant to this
prospectus were issued and outstanding as of the date hereof, such shares would represent 9.9% of
the total common stock outstanding or 16.8% of the non-affiliates shares outstanding, as adjusted,
as of the date hereof. If we elect to issue more than the 5,298,330 shares offered pursuant to
this prospectus, which we have the right but not the obligation to do, we must register under the
Securities Act any additional shares we may elect to sell to LPC before we can sell such additional
shares, which could cause substantial dilution to our stockholders. The number of shares
ultimately offered for sale by LPC is dependent upon the number of shares purchased by LPC under
the Purchase Agreement.
Purchase of Shares Under the Purchase Agreement
Under the Purchase Agreement, on any business day selected by us and as often as every two
business days, we may direct LPC to purchase up to 100,000 shares of our common stock. The
purchase price per share is equal to the lesser of:
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the lowest sale price of our common stock on the purchase date; or |
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the average of the three lowest closing sale prices of our common stock
during the twelve consecutive business days prior to the date of a purchase by
LPC. |
The purchase price will be equitably adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, or other similar transaction occurring during the business days used to
compute the purchase price.
In addition to purchases of up to 100,000 shares, we may direct LPC as often as every two
business days to purchase up to an additional 100,000 shares of our common stock provided that on
the purchase date our share price is not below $3.00 per share. The price at which LPC would
purchase these accelerated amounts of our stock will be the lesser of (i) the lowest sale price of
our
Page 11
common stock on the purchase date and (ii) the lowest purchase price (as described above)
during the previous ten business days prior to the purchase date.
Minimum Purchase Price
Under the Purchase Agreement, we have set a minimum purchase price (floor price) of $1.00.
However, LPC will not have the right nor the obligation to purchase any shares of our common stock
in the event that the purchase price would be less than the floor price.
Events of Default
The following events constitute events of default under the Purchase Agreement:
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the effectiveness of the registration statement of which this prospectus is a
part of lapses for any reason (including, without limitation, the issuance of a stop
order) or is unavailable to LPC for sale of our common stock offered hereby and such
lapse or unavailability continues for a period of ten consecutive business days or for
more than an aggregate of thirty business days in any 365-day period; |
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suspension by our principal market of our common stock from trading for a period
of three consecutive business days; |
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the de-listing of our common stock from our principal market provided our common
stock is not immediately thereafter trading on the Nasdaq Capital Market, the OTC
Bulletin Board, including comparable market, the Nasdaq Global Select Market, the New
York Stock Exchange or the NYSE AMEX; |
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the transfer agents failure for five business days to issue to LPC shares of our
common stock which LPC is entitled to under the Purchase Agreement; |
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any material breach of the representations or warranties or covenants contained
in the Purchase Agreement or any related agreements which has or which could have a
material adverse effect on us subject to a cure period of five business days; or |
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any participation or threatened participation in insolvency or bankruptcy
proceedings by or against us. |
Our Termination Rights
We have the unconditional right at any time for any reason to give notice to LPC terminating
the Purchase Agreement without any cost to us.
No Short-Selling or Hedging by LPC
LPC has agreed that neither it nor any of its affiliates will engage in any direct or indirect
short-selling or hedging of our common stock during any time prior to the termination of the
Purchase Agreement.
Page 12
Effect of Performance of the Purchase Agreement on Our Stockholders
All 5,298,330 shares registered in this offering are expected to be freely tradable. It is
anticipated that shares registered in this offering will be sold over a period of up to 36 months
from the date of this prospectus. The sale by LPC of a significant amount of shares registered in
this offering at any given time could cause the market price of our common stock to decline and to
be highly volatile. LPC may ultimately acquire all, some or none of the 5,298,330 shares of common
stock not yet issued but registered in this offering. After it has acquired such shares, it may
sell all, some or none of such shares. Therefore, sales to LPC by us under the agreement may result
in substantial dilution to the interests of other holders of our common stock. However, we have
the right to control the timing and amount of any sales of our shares to LPC and the Purchase
Agreement may be terminated by us at any time at our discretion without any cost to us.
In connection with entering into the Purchase Agreement, we authorized the sale to LPC of up
to 5,000,000 shares of our common stock, exclusive of the 149,165 commitment shares issued, and the
149,165 commitment shares that may be issued, to LPC. We have the right to terminate the Purchase
Agreement without any payment or liability to LPC at any time, including in the event that all
$10,000,000 is sold to LPC under the Purchase Agreement. The number of shares ultimately offered
for sale by LPC pursuant to this prospectus is dependent upon the number of shares purchased by LPC
under the Purchase Agreement. The following table sets forth the amount of proceeds we would
receive from LPC from the sale of shares that are registered in this offering at varying purchase
prices:
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Number of |
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Percentage of |
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Proceeds from the |
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Registered Shares |
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Outstanding Shares |
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Sale of Shares |
Assumed Average |
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to be Issued if |
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After Giving Effect |
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to LPC Under the |
Purchase Price |
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Full Purchase (1) (2) |
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to the Issuance to LPC (3) |
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LPC Purchase Agreement |
$1.00 (4)
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5,074,583
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9.49%
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$5,000,000 |
$1.72 (5)
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5,128,282
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9.58%
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$8,600,000 |
$2.00
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5,149,165
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9.62%
|
|
$10,000,000 |
$3.00
|
|
3,482,498
|
|
6.71%
|
|
$10,000,000 |
$5.00
|
|
2,149,165
|
|
4.25%
|
|
$10,000,000 |
|
|
|
(1) |
|
Although the Purchase Agreement provides that we may sell up to $10,000,000 of
our common stock to LPC, we are only registering 5,298,330 shares to be acquired
thereunder, which may or may not cover all such shares purchased by LPC under the
Purchase Agreement, depending on the purchase price per share. As a result, we have
included in this column only those shares which are registered in this offering. |
|
(2) |
|
The number of registered shares includes a number of shares to be purchased at
the applicable price plus the applicable additional commitment shares issuable to LPC
(but not the initial commitment shares), and no proceeds will be attributable to such
commitment shares. |
|
(3) |
|
The denominator is a sum of (a) 48,423,513 shares outstanding as of July 8, 2011,
which includes the 149,165 initial commitment shares already issued to LPC, which are
part of this offering, and (b) the number of shares set forth in the adjacent column
which includes the additional commitment shares issued pro rata as up to $10,000,000 of
our stock is purchased by LPC. The numerator is based on the number of shares issuable
under the Purchase Agreement at the corresponding assumed purchase price set forth in
the adjacent column. The number of shares in such column does not include shares that
may be issued to LPC which are not registered in this offering or the shares underlying
a warrant that may be issued if we, in our sole discretion, receive the initial purchase
of $1,250,000. |
|
(4) |
|
Under the Purchase Agreement, we may not sell and LPC may not purchase any shares
in the event the purchase price of such shares is below $1.00. |
|
(5) |
|
The closing sale price of our shares on July 8, 2011. |
Page 13
SELLING STOCKHOLDER
The following table presents information regarding the selling stockholder. Neither the
selling stockholder nor any of its affiliates has held a position or office, or had any other
material relationship, with us.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares to be Sold |
|
|
|
|
|
|
|
|
in the Offering |
|
|
|
|
|
|
|
|
Assuming the |
|
|
|
|
|
|
Percentage of |
|
Company Issues the |
|
Percentage of |
|
|
Shares Beneficially |
|
Outstanding Shares |
|
Maximum Number of |
|
Outstanding Shares |
|
|
Owned Before |
|
Beneficially Owned |
|
Shares Under the |
|
Beneficially Owned |
Selling Stockholder |
|
Offering |
|
Before Offering |
|
Purchase Agreement |
|
After Offering |
Lincoln Park
Capital Fund, LLC (1)
|
|
149,165(2)
|
|
0.31%(2)(3)
|
|
5,298,330
|
|
* |
|
|
|
* |
|
less than 1% |
|
(1) |
|
Josh Scheinfeld and Jonathan Cope, the principals of LPC, are deemed to be beneficial owners
of all of the shares of common stock owned by LPC. Messrs. Scheinfeld and Cope have shared
voting and disposition power over the shares being offered under this prospectus. |
|
(2) |
|
149,165 shares of our common stock have been previously issued to LPC under the Purchase
Agreement as a commitment fee. We may at our discretion elect to issue to LPC up to an
additional 5,149,165 shares of our common stock in this offering under the Purchase Agreement.
Such shares are not included in determining the percentage of shares beneficially owned
before the offering. |
|
(3) |
|
Based on the 48,423,513 shares of our common stock outstanding as of July 8, 2011. |
PLAN OF DISTRIBUTION
The common stock offered by this prospectus is being offered by Lincoln Park Capital Fund,
LLC, the selling stockholder. The common stock may be sold or distributed from time to time by the
selling stockholder directly to one or more purchasers or through brokers, dealers, or underwriters
who may act solely as agents at market prices prevailing at the time of sale, at prices related to
the prevailing market prices, at negotiated prices, or at fixed prices, which may be changed. The
sale of the common stock offered by this Prospectus may be effected in one or more of the following
methods:
|
|
|
ordinary brokers transactions; |
|
|
|
|
transactions involving cross or block trades; |
|
|
|
|
through brokers, dealers, or underwriters who may act solely as agents; |
|
|
|
|
at the market into an existing market for the common stock; |
|
|
|
|
in other ways not involving market makers or established business markets,
including direct sales to purchasers or sales effected through agents; |
|
|
|
|
in privately negotiated transactions; or |
|
|
|
|
any combination of the foregoing. |
In order to comply with the securities laws of certain states, if applicable, the shares may
be sold only through registered or licensed brokers or dealers. In addition, in certain states,
the shares may not be sold unless they have been registered or qualified for sale in the state or
an exemption from the registration or qualification requirement is available and complied with.
Brokers, dealers, underwriters, or agents participating in the distribution of the shares as
agents may receive compensation in the form of commissions, discounts, or concessions from the
selling stockholder and/or purchasers of the common stock for whom the broker-dealers may act as
agent. The compensation paid to a particular broker-dealer may be less than or in excess of
customary commissions.
LPC is an underwriter within the meaning of the Securities Act.
Neither we nor LPC can presently estimate the amount of compensation that any agent will
receive. We know of no existing arrangements between LPC, any other stockholder, broker, dealer,
underwriter, or agent relating to the sale or distribution of the
Page 14
shares offered by this prospectus. At the time a particular offer of shares is made, a prospectus
supplement, if required, will be distributed that will set forth the names of any agents,
underwriters, or dealers and any compensation from the selling stockholder, and any other required
information.
We will pay all of the expenses incident to the registration, offering, and sale of the shares
to the public other than commissions or discounts of underwriters, broker-dealers, or agents. We
have also agreed to indemnify LPC and related persons against specified liabilities, including
liabilities under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to our directors, officers, and controlling persons, we have been advised that in the opinion of
the SEC this indemnification is against public policy as expressed in the Securities Act and is,
therefore, unenforceable.
LPC and its affiliates have agreed not to engage in any direct or indirect short selling or
hedging of our common stock during the term of the Purchase Agreement.
We have advised LPC that while it is engaged in a distribution of the shares included in this
prospectus it is required to comply with Regulation M promulgated under the Exchange Act. With
certain exceptions, Regulation M precludes the selling stockholder, any affiliated purchasers, and
any broker-dealer or other person who participates in the distribution from bidding for or
purchasing, or attempting to induce any person to bid for or purchase any security, which is the
subject of the distribution until the entire distribution is complete. Regulation M also prohibits
any bids or purchases made in order to stabilize the price of a security in connection with the
distribution of that security. All of the foregoing may affect the marketability of the shares
offered pursuant to this prospectus.
This offering will terminate on the date that all shares offered by this Prospectus have been
sold by LPC.
LEGAL OPINION
In-House Legal Services, PLLC, has passed upon the validity of the shares of common stock
being offered pursuant to this prospectus.
EXPERTS
The consolidated financial statements of Premier Exhibitions, Inc. as of February 28, 2011 and
2010 and for the years then ended appearing in Premiers Annual Report on Form 10-K for the year
ended February 28, 2011 have been audited by Cherry, Bekaert & Holland, L.L.P., independent
registered public accounting firm, as set forth in their report thereon, included therein, and
incorporated herein by reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such reports given on the authority of such firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a public company, and we file annual, quarterly and current reports, proxy statements
and other information with the Securities and Exchange Commission. Copies of the reports, proxy
statements and other information may be read and copied at the Securities and Exchange Commissions
Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You can request copies of such
documents by writing to the Securities and Exchange Commission and paying a fee for the copying
cost. You may obtain information on the operation of the Public Reference Room by calling the
Securities and Exchange Commission at 1-800-SEC-0330. All reports and other information that we
file with the Securities and Exchange Commission are also available to the public from the
Securities and Exchange Commissions web site at www.sec.gov, under our company name or our CIK
number: 0000796764.
We make available through our website located at www.prxi.com our annual reports on Form 10-K,
quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed
or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably
practicable after we electronically submit such material to the Securities and Exchange Commission.
This prospectus is part of a registration statement on Form S-3 that we have filed with the
Securities and Exchange Commission. Certain information in the registration statement has been
omitted from this prospectus in accordance with the rules and
Page 15
regulations of the Securities and Exchange Commission. We have also filed exhibits and schedules
with the registration statement that are excluded from this prospectus. For further information
about us, and the common stock offered pursuant to this prospectus, we refer you to the
registration statement and its exhibits, which may be obtained as described above.
Page 16
INCORPORATION BY REFERENCE
The Securities and Exchange Commission allows us to incorporate by reference into this
prospectus the information that we file with it. This means that we can disclose important
information to you in this document by referring you to other filings we have made with the
Securities and Exchange Commission. The information incorporated by reference is considered to be
part of this prospectus, and later information we file with the Securities and Exchange Commission
that is incorporated or deemed to be incorporated by reference into this prospectus will update and
supersede this information. We incorporate by reference the documents listed below and any future
documents we file with the Securities and Exchange Commission under Section 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the termination of the offering covered by this prospectus:
|
|
|
our annual report on Form 10-K for our fiscal year ended
February 28, 2011, filed with the Securities and Exchange
Commission on May 24, 2011, and our quarterly report on
Form 10-Q for our fiscal quarter ended May 31, 2011, filed
with the Securities and Exchange Commission on July 13,
2011; |
|
|
|
|
our definitive proxy statement for our 2011 annual meeting
of stockholders, filed with the Securities and Exchange
Commission on June 28, 2011; |
|
|
|
|
our current reports on Form 8-K filed with the Securities
and Exchange Commission on March 1, 2011, March 31, 2011,
May 23, 2011, May 24, 2011 and June 23, 2011; and |
|
|
|
|
the description of our common stock, par value $0.0001 per
share, contained in our registration statement on Form 8-A
(Reg. No. 0-22926), filed with the Securities and Exchange
Commission on November 22, 1993. |
This prospectus may contain information that updates, modifies or is contrary to information
in one or more of the documents incorporated by reference in this prospectus. You should rely only
on the information incorporated by reference or provided in this prospectus. We have not authorized
anyone else to provide you with different information. You should not assume that the information
in this prospectus is accurate as of any date other than the date of this prospectus or the date of
the documents incorporated by reference in this prospectus.
Upon your written or oral request, we will provide at no cost to you a copy of any and all of
the information that is incorporated by reference in this prospectus.
Requests for such documents should be directed to:
Corporate Secretary
Premier Exhibitions, Inc.
3340 Peachtree Road, NE, Suite 900
Atlanta, Georgia 30326
Tel: (404) 842-2600
You may also access the documents incorporated by reference in this prospectus through our
website located at www.prxi.com. Except for the specific incorporated documents listed above, no
information available on or through our website shall be deemed to be incorporated in this
prospectus or the registration statement of which it forms a part.
Page 17
[Outside Back Cover of Prospectus]
PREMIER EXHIBITIONS, INC.
Prospectus dated July 15, 2011
5,298,330 shares of common stock
Page 18
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below are the expenses expected to be incurred by the registrant in connection with
the issuance and distribution of the securities registered hereby. None of the expenses will be
borne by the selling stockholder identified in this registration statement. With the exception of
the Securities and Exchange Commission registration fee, the amounts set forth below are estimates.
|
|
|
|
|
Nature of Expense |
|
Amount |
|
Registration fee |
|
$ |
1,064 |
|
Accounting fees and expenses |
|
$ |
5,500 |
|
Legal fees and expenses |
|
$ |
12,500 |
|
Transfer agent fees |
|
$ |
500 |
|
Printing and related fees |
|
$ |
1,200 |
|
Miscellaneous |
|
$ |
250 |
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
21,014 |
|
|
|
|
|
Item 15. Indemnification of Directors and Officers.
Section 607.0850 of the Florida Business Corporation Act permits the indemnification of
directors and officers of Florida corporations. Our charter provides that we shall indemnify our
directors and officers to the fullest extent permitted by Florida law.
Under Florida law, we have the power to indemnify our directors and officers against claims
arising in connection with their service to us except when a directors or officers conduct
involves: (a) violations of criminal laws, unless the director had reasonable cause to believe his
conduct was lawful or had no reasonable cause to believe his conduct was unlawful; (b) deriving an
improper personal benefit from a transaction; (c) voting for or assenting to an unlawful
distribution; or (d) willful misconduct or conscious disregard for our best interests in a
proceeding by or in the right of a stockholder.
In addition, we have entered into agreements with certain of our directors and officers that
contain provisions requiring us to indemnify them to the fullest extent permitted by Florida law.
The agreements require us to indemnify our directors and officers to the extent permitted by our
charter and to advance their expenses incurred in connection with a proceeding with respect to
which they are entitled to indemnification.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to our directors, officers or persons in control pursuant to the foregoing provisions or otherwise,
we have been informed that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and is therefore
unenforceable.
Our charter limits the liability of current and former directors for monetary damages if they
have acted in good faith and conformed to a standard of reasonable care. Furthermore, and
notwithstanding anything to the contrary in our charter or bylaws, Section 607.0831 of the Florida
Business Corporation Act limits the liability of directors for monetary damages for any statement,
vote, decision or failure to act relating to management or policy of the corporation unless he or
she breached or failed to perform her duties as a director, and the breach or failure constitutes:
(a) a violation of criminal law, unless the director had reasonable cause to believe the conduct
was lawful or had no reasonable cause to believe it was unlawful; (b) a transaction from which the
director derived an improper personal benefit; (c) an unlawful distribution; (d) in a proceeding by
or in the right of the corporation or one or more of our stockholders, conscious disregard for our
best interests or willful misconduct; or (e) in a proceeding brought by someone other than the
corporation or one or more of our stockholders, recklessness or an act or omission committed in bad
faith, with malicious purpose, or in a manner exhibiting willful disregard of human rights, safety
or property.
We have purchased insurance with respect to, among other things, the liabilities that may
arise under the statutory provisions referred to above. Our directors and officers are also insured
against certain liabilities, including certain liabilities arising under the Securities Act, which
might be incurred by them in such capacities and against which they are not indemnified by us.
Page 19
Item 16. Exhibits
A list of exhibits filed with this registration statement is contained in the Exhibit Index to
this registration statement and is incorporated herein by reference.
Page 20
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
|
(1) |
|
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: |
|
(i) |
|
To include any prospectus required by section 10(a)(3) of the Securities Act; |
|
|
(ii) |
|
To reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement; |
|
|
(iii) |
|
To include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material change to such
information in the registration statement; provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration
statement is on Form S-3 and the information required to be included in a post
effective amendment by those paragraphs is contained in reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
the registration statement. |
|
(2) |
|
That, for the purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. |
|
|
(3) |
|
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering. |
|
|
(4) |
|
That, for the purpose of determining liability under the Securities Act to any
purchaser: |
|
(i) |
|
If the registrant is relying on Rule 430B: |
|
(A) |
|
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and |
|
|
(B) |
|
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by section 10(a) of the Securities
Act shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that no statement made
in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date; or |
|
(ii) |
|
If the registrant is subject to Rule 430C, each prospectus filed pursuant
to Rule 424(b) as part of a registration statement relating to an offering, other
than registration statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date |
Page 21
|
|
|
it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part
of the registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or
made in any such document immediately prior to such date of first use. |
|
(5) |
|
That, for the purpose of determining liability of the registrant under the
Securities Act to any purchaser in the initial distribution of the securities: |
|
(a) |
|
The undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such purchaser: |
|
(i) |
|
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule 424; |
|
|
(ii) |
|
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by the undersigned
registrant; |
|
|
(iii) |
|
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and |
|
|
(iv) |
|
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser. |
(b) |
|
The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the registrants annual report pursuant to Section
13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) |
|
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of such issue. |
Page 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on July 14,
2011.
|
|
|
|
|
|
Premier Exhibitions, Inc.
|
|
|
/s/ Christopher Davino
|
|
|
Christopher Davino |
|
|
President and Chief Executive Officer |
|
Page 23
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes
and appoints Michael Little and Robert Brandon, and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and re-substitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same, with all exhibits
and schedules thereto, and all other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing, which they, or either of them, may
deem necessary or advisable to be done in connection with this registration statement, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their substitute or substitutes or any of
them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities and as of the dates indicated.
|
|
|
|
|
Date |
|
Signature |
|
Title |
|
|
|
|
|
July 13, 2011
|
|
/s/ Christopher Davino
Christopher Davino
|
|
President and Chief Executive Officer and Director (Principal
Executive Officer) |
|
|
|
|
|
July 13, 2011
|
|
/s/ Michael Little
Michael Little
|
|
Senior Vice President and Chief Financial Officer (Principal
Financial Officer and Principal Accounting Officer) |
|
|
|
|
|
July 14, 2011
|
|
/s/ Mark Sellers
|
|
Chairman of the Board of Directors |
|
|
|
|
|
|
|
Mark Sellers |
|
|
|
|
|
|
|
July 13, 2011
|
|
/s/ William Adams
|
|
Director |
|
|
|
|
|
|
|
William Adams |
|
|
|
|
|
|
|
July 13, 2011
|
|
/s/ Douglas Banker
|
|
Director |
|
|
|
|
|
|
|
Douglas Banker |
|
|
|
|
|
|
|
July 13, 2011
|
|
/s/ Ronald Bernard
|
|
Director |
|
|
|
|
|
|
|
Ronald Bernard |
|
|
|
|
|
|
|
July 13, 2011
|
|
/s/ Stephen Palley
|
|
Director |
|
|
|
|
|
|
|
Stephen Palley |
|
|
|
|
|
|
|
July 14, 2011
|
|
/s/ Bruce Steinberg
|
|
Director |
|
|
|
|
|
|
|
Bruce Steinberg |
|
|
|
|
|
|
|
July 13, 2011
|
|
/s/ Samuel Weiser
|
|
Director |
|
|
|
|
|
|
|
Samuel Weiser |
|
|
Page 24
EXHIBIT INDEX
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incorporated by Reference |
Exhibit |
|
Exhibit |
|
Filed |
|
|
|
|
|
|
No. |
|
Description |
|
Herewith |
|
Form |
|
Exhibit |
|
Filing Date |
3.1
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Articles of Incorporation
(Commission File Number 000-24452)
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8-K
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3.1 |
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10-20-04 |
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3.2
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Amendment to Articles of Incorporation
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SB-2
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3.2 |
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01-05-06 |
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3.3
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Second Amendment to Articles of Incorporation
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S-8
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4.3 |
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08-17-09 |
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3.4
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Amended and Restated Bylaws, dated
February 25, 2011
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8-K
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3.1 |
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03-01-11 |
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4.1
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Form of Common Stock Certificate
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8-K/A
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4.1 |
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11-01-04 |
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4.2
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Purchase Agreement,
dated May 20, 2011, by
and
between Premier
Exhibitions, Inc. and
Lincoln Park Capital
Fund, LLC
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8-K
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10.1 |
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5-24-11 |
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4.3
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Registration Rights
Agreement, dated May
20, 2011, by and
between Premier
Exhibitions, Inc. and
Lincoln Park Capital
Fund, LLC
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8-K
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10.2 |
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5-24-11 |
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4.4
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Form of Common Stock
Purchase Warrant, by
and between Premier
Exhibitions, Inc. and
Lincoln Park Capital
Fund, LLC
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8-K
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10.3 |
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5-24-11 |
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5.1
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Opinion of In-House
Legal Services, PLLC,
regarding the legality
of the shares of
common stock being
registered
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X |
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23.1
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Consent of In-House
Legal Services, PLLC
(included in Exhibit
5.1)
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X |
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23.2
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Consent of Cherry,
Bekaert & Holland,
L.L.P., independent
registered accountants
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X |
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24.1
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Power of Attorney
(included on signature
page of S-3)
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X |
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