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SECURITIES AND EXCHANGE COMMISSION
UNDER
THE SECURITIES ACT OF 1933
Florida | 20-1424922 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
Atlanta, Georgia 30326
(404) 842-2600
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
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)
Robert A. Brandon, Esq. | Derek D. Bork, Esq. | |
General Counsel | Thompson Hine LLP | |
Premier Exhibitions, Inc. | 3900 Key Center | |
3340 Peachtree Road, NE, Suite 900 | 127 Public Square | |
Atlanta, Georgia 30326 | Cleveland, Ohio 44114 | |
Tel: (404) 842-2600 | Tel: (216) 566-5500 | |
Fax: (404) 842-2626 | Fax: (216) 566-5800 |
Large accelerated filero | Accelerated filero | Non-accelerated filero | Smaller reporting companyþ | |||
(Do not check if a smaller reporting company) |
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Title of each class | Proposed maximum | Proposed maximum | ||||||||||||||||||||
of securities to be | Amount to be | offering price per | aggregate offering | Amount of | ||||||||||||||||||
registered | registered | share (2) | price (2) | registration fee | ||||||||||||||||||
Common Stock, par value $.0001 per share | 5,298,330 | (1) | $ | 1.73 | $ | 9,166,111 | $ | 1,064.19 | ||||||||||||||
(1) | 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. | |
(2) | 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. |
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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.
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5,298,330 Shares of Common Stock
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Common stock to be offered by the selling stockholder | 5,298,330 shares consisting of: | |
• 149,165 initial commitment shares issued to LPC; | ||
• 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; | ||
• 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. | ||
Common stock outstanding prior to this offering | 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 | |
Common stock to be outstanding after giving effect to the issuance of 5,298,330 shares under the Purchase Agreement | 53,572,678 shares | |
Use of proceeds | 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.” | |
Risk factors | This investment involves certain risks. See “Risk Factors” for a discussion of factors you should consider carefully before making an investment decision. | |
Symbol on NASDAQ Global Market | PRXI |
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• | changes in foreign regulatory requirements; | ||
• | difficulties in staffing, training and managing foreign operations; | ||
• | changing and irregular enforcement of legal regulations; | ||
• | difficulties in collecting amounts due from foreign partners; and | ||
• | political and economic instability. |
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• | licensing and permitting; | ||
• | health, safety, environmental and sanitation requirements; | ||
• | working conditions, labor, minimum wage and hour, citizenship and employment laws; and | ||
• | sales, use and other taxes and withholding. |
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• | the lowest sale price of our common stock on the purchase date; or |
• | 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. |
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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; | ||
• | suspension by our principal market of our common stock from trading for a period of three consecutive business days; | ||
• | 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; | ||
• | the transfer agent’s failure for five business days to issue to LPC shares of our common stock which LPC is entitled to under the Purchase Agreement; | ||
• | 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 | ||
• | any participation or threatened participation in insolvency or bankruptcy proceedings by or against us. |
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Number of | Percentage of | Proceeds from the | ||||
Registered Shares | Outstanding Shares | Sale of Shares | ||||
Assumed Average | to be Issued if | After Giving Effect | to LPC Under the | |||
Purchase Price | Full Purchase (1) (2) | to the Issuance to LPC (3) | LPC Purchase Agreement | |||
$1.00(4) | 5,074,583 | 9.49% | $5,000,000 | |||
$1.72 (5) | 5,128,282 | 9.58% | $8,600,000 | |||
$2.00 | 5,149,165 | 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. |
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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. |
• | 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. |
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• | 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. |
Premier Exhibitions, Inc.
3340 Peachtree Road, NE, Suite 900
Atlanta, Georgia 30326
Tel: (404) 842-2600
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Prospectus dated July 15, 2011
5,298,330 shares of common stock
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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 | ||
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(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 initialbona fideoffering 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 initialbona fideoffering 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 |
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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 registrant’s annual report pursuant to Section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s 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 initialbona fideoffering 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. |
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Premier Exhibitions, Inc. | ||||
/s/ Christopher Davino | ||||
Christopher Davino | ||||
President and Chief Executive Officer |
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Date | Signature | Title | ||
July 13, 2011 | /s/ Christopher Davino | President and Chief Executive Officer and Director (Principal Executive Officer) | ||
July 13, 2011 | /s/ 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 |
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Incorporated by Reference | ||||||||||||
Exhibit | Exhibit | Filed | ||||||||||
No. | Description | Herewith | Form | Exhibit | Filing Date | |||||||
3.1 | Articles of Incorporation (Commission File Number 000-24452) | 8-K | 3.1 | 10-20-04 | ||||||||
3.2 | Amendment to Articles of Incorporation | SB-2 | 3.2 | 01-05-06 | ||||||||
3.3 | Second Amendment to Articles of Incorporation | S-8 | 4.3 | 08-17-09 | ||||||||
3.4 | Amended and Restated Bylaws, dated February 25, 2011 | 8-K | 3.1 | 03-01-11 | ||||||||
4.1 | Form of Common Stock Certificate | 8-K/A | 4.1 | 11-01-04 | ||||||||
4.2 | Purchase Agreement, dated May 20, 2011, by and between Premier Exhibitions, Inc. and Lincoln Park Capital Fund, LLC | 8-K | 10.1 | 5-24-11 | ||||||||
4.3 | Registration Rights Agreement, dated May 20, 2011, by and between Premier Exhibitions, Inc. and Lincoln Park Capital Fund, LLC | 8-K | 10.2 | 5-24-11 | ||||||||
4.4 | Form of Common Stock Purchase Warrant, by and between Premier Exhibitions, Inc. and Lincoln Park Capital Fund, LLC | 8-K | 10.3 | 5-24-11 | ||||||||
5.1 | Opinion of In-House Legal Services, PLLC, regarding the legality of the shares of common stock being registered | X | ||||||||||
23.1 | Consent of In-House Legal Services, PLLC (included in Exhibit 5.1) | X | ||||||||||
23.2 | Consent of Cherry, Bekaert & Holland, L.L.P., independent registered accountants | X | ||||||||||
24.1 | Power of Attorney (included on signature page of S-3) | X |
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