[Letterhead of Sellers Capital LLC and Sellers Capital Master Fund, Ltd.]
January 9, 2009
By EDGAR and Fax
United States Securities and Exchange Commission
Division of Corporation Finance
Office of Mergers and Acquisitions
Mail Stop 3628
100 F Street, N.E.
Washington, D.C. 20549-3628
Division of Corporation Finance
Office of Mergers and Acquisitions
Mail Stop 3628
100 F Street, N.E.
Washington, D.C. 20549-3628
| Attention: | Song Brandon, Esq. Attorney Advisor |
| RE: | Premier Exhibitions, Inc. (the “Company”) Soliciting Materials Filed Pursuant to Rule 14a-12 Filed on December [31], 2008 by Sellers Capital LLC and Sellers Capital Master Fund, Ltd. File No. 0-24452 |
Dear Ladies and Gentlemen,
We are writing on behalf of Sellers Capital LLC and Sellers Capital Master Fund, Ltd. (together, “Sellers Capital”) in response to your letter dated as of January 8, 2009. This letter includes your comments in bold and italics with Sellers Capital’s responses below, and Sellers Capital’s responses correspond with the headings and comment numbers in your letter. For convenience of review, we are also filing with this letter relevant excerpts from the Company’s public documents.
Soliciting Material
| 1. | You must avoid statements that directly or indirectly impugn the character, integrity, or personal reputation, or make charges of illegal or immoral conduct, without factual foundation. In future filings, please disclose the factual foundation for such statements or refrain from issuing such statements. In this regard, note that the factual foundation for such assertions must be reasonable. Refer to Rule 14a-9. For example, we note the following statements: |
| • | “It is our understanding that the Company did not obtain shareholder approval for this provision [Mr. Arnie Geller’s right to elect to receive his compensation in the form of the company’s common stock at a price equal to 50% of the company’s stock price on the date of election], as is required by NASDAQ rules.” (Comment No. 17). |
We made the statement above based on the NASDAQ Marketplace Rule 4350(i)(1), which requires NASDAQ listed companies to obtain shareholder approval for arrangements pursuant to which stock may be acquired by officers or directors. The Company’s public filings did not show that the Company sought such approval. Although the Company contended in its soliciting materials that such approval was not required, the Company
confirmed our contention that such approval was not obtained. (See the Company’s response to Comment 17 on p. 9 of the Company’s soliciting materials filed with the Securities and Exchange Commission (the “Commission”) on January 6, 2009).
| • | The belief that the engagement of JC Jones & Associates, LLC was not approved by the board, but “effected by Mr. Geller without Board approval.” (Comment No. 21). |
From having two designees on the Company’s Board — Mark Hugh Sam and Mark Sellers, we know that the engagement of JC Jones & Associates, LLC was neither presented to nor approved by the full Board. In its soliciting materials, the Company admitted that the full Board did not authorize this engagement. Instead, Mr. Geller apparently relied on “the Board directive to managementto prepare a business plan” (emphasis added) and the Audit Committee’s “suggestion” to engage a consultant, none of which amounted to the Board’s approval to hire JC Jones & Associates, LLC. (See the Company’s response to Comments 20 and 21 on p. 10 of the Company’s soliciting materials filed with the Commission on January 6, 2009).
| • | The belief that Mr. Geller was untimely in at least one Section 16 filing. (Comment No. 26). |
The Company’s 2007 Proxy Statement states that “Mr. Geller filed one late report disclosing one transaction during fiscal year 2006.” (See p. 27 of the Company’s Proxy Statement filed with the Commission on June 27, 2008). Please also refer to Mr. Geller’s Form 4 filed with the Commission on February 9, 2006, which indicated “September 13, 2005” as the transaction date, thus evidencing that the filing was significantly late.
In addition, we believe that Mr. Geller’s Form 4 filed with the Commission on August 22, 2006 incorrectly indicated “August 18, 2006” as the transaction date and was instead significantly late. From a memorandum that our designees on the Company’s Board — Mark Hugh Sam and Mark Sellers — received from the Company, we know that the Company’s outside counsel determined that Mr. Geller received stock options to purchase 75,000 shares of the Company’s stock with a grant date of January 27, 2006 but that Mr. Geller did not report these options on a Form 4 until August 22, 2006.
In its soliciting materials, we believe the Company admits that Mr. Geller was untimely in at least one Section 16 filing by stating that “Mr. Geller should be judged on the basis of accomplishment, and not on an inadvertent late filing under Section 16 of the Exchange Act.” (See the Company’s response to Comment 26 on p. 12 of the Company’s soliciting materials filed with the Commission on January 6, 2009).
| • | The notion that Mr. Geller’s deferral of $345,000 and reporting of such deferral on aForm 8-K “were effected by Mr. Geller without the involvement of the Company’s Board.” (Comment No. 29). |
From having two designees on the Company’s Board — Mark Hugh Sam and Mark Sellers, we know that our designees were not advised of Mr. Geller’s deferral of $345,000 and reporting of such deferral on a Form 8-K, and we also know that such deferral and reporting were neither presented to nor approved by the full Board. In addition, in its soliciting materials, the Company acknowledged that only the “Special Committee had conversations with Mr. Geller regarding his compensation,” resulting in the deferral of $345,000, thereby admitting not only that the deferral was not approved by the Board but also that it was not
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approved by the Special Committee (but only discussed in a conversation with the Special Committee). The Company further admitted that the Board did not approve the filing of the related Form 8-K by stating that “Board approval is not required for the filing of a Form 8-K report.” (See the Company’s response to Comment 29 on p. 13 of the Company’s soliciting materials filed with the Commission on January 6, 2009).
| 2. | Please also provide us the basis for your belief that Ms. Judith Geller receives compensation in excess of $120,000 per year, or refrain from making such statements in future filings. |
Our belief regarding Ms. Judith Geller’s compensation is based on the Company’s public filings. In its Revised Consent Revocation Statement, the Company acknowledges that Ms. Geller’s compensation exceeds $120,000 per year:
“Mrs. Geller currently receives $125,000 per annum for her consulting services, including consulting on the Company’s exhibition design, development and installation, and on Premier’s catalog design and development. On June 27, 2008 Mrs. Geller entered into an agreement with the Company pursuant to which, in exchange for terminating a royalty agreement dated March 15, 2001, she received $275,000 representing a full and final settlement of all amounts due to her, including all amounts due under the royalty agreement with RMS Titanic, Inc.”
(See p. 7 of the Company’s Revised Consent Revocation Statement filed with the Commission on January 8, 2009). In addition, in the “Related Party Transactions” section of the Company’s Revised Proxy Statement, the Company has previously included the following disclosure:
“Judy Geller, the wife of our chairman, president and chief executive officer, was a consultant to us and received payments for services of approximately $100,000 during fiscal year 2008. Mrs. Geller provided consulting on our exhibition design, development and installation and catalog design and development. In addition, royalty payments to Mrs. Geller on the sale of our exhibition catalogs of approximately $197,000 were paid during fiscal year 2008. Such payments were made by us and our co-presentation partner pursuant to a royalty arrangement.”
(See p. 36 of the Company’s Revised Proxy Statement filed with the Commission on September 29, 2008 and included with this letter).
In connection with this response to your letter, Sellers Capital acknowledges that:
| (1) | Sellers Capital is responsible for the adequacy and accuracy of the disclosure in the filing; | |
| (2) | Staff comments or changes to disclosure in response to staff comments do not foreclose the Commission from taking any action with respect to the filing; and | |
| (3) | Sellers Capital may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. |
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If you have any questions regarding these responses, please contact our counsel, Derek D. Bork of Thompson Hine LLP, at 216-566-5500.
Respectfully,
| Sellers Capital Master Fund, Ltd. | Sellers Capital LLC | |||||||||||
| By: | /s/ Samuel S. Weiser | By: | /s/ Samuel S. Weiser | |||||||||
| Name: | Samuel S. Weiser | Name: | Samuel S. Weiser | |||||||||
| Title: | Chief Operating Officer, Sellers Capital LLC, Investment Manager | Title: | Chief Operating Officer | |||||||||
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