Exhibit 10.1





Exhibit 10.1




PURCHASE AGREEMENT




PURCHASE AGREEMENT (the “Agreement”), dated as of October 31, 2011, by and between PREMIER
EXHIBITIONS, INC., a Florida corporation, (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC, an
Illinois limited liability company (the “Investor”).



WHEREAS:




Subject to the terms and conditions set forth in this Agreement, the Company has the right to
sell to the Investor, and the Investor has the obligation to buy from the Company, up to Ten
Million Dollars ($10,000,000) of the Company’s common stock, $.0001 value per share (the “Common
Stock”), subject in all cases to the Maximum Share Cap. The shares of Common Stock to be purchased
hereunder are referred to herein as the “Purchase Shares.”




NOW THEREFORE, the Company and the Investor hereby agree as follows:




1. CERTAIN DEFINITIONS.




For purposes of this Agreement, the following terms shall have the following meanings:



(a) “Accelerated Purchase Notice” shall mean an irrevocable written notice from the Company to
the Investor directing the Investor to buy such Purchase Amount in Purchase Shares as specified by
the Company therein on the Purchase Date.



(b) “Available Amount” means initially Ten Million Dollars ($10,000,000) in the aggregate,
which amount shall be reduced by the Purchase Amount each time the Investor purchases shares of
Common Stock pursuant to Section 2 hereof.



(c) “Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors.



(d) “Business Day” means any day on which the Principal Market is open for trading including
any day on which the Principal Market is open for trading for a period of time less than the
customary time.



(e) “Closing Sale Price” means, for any security as of any date, the last closing sale price
for such security on the Principal Market as reported by the Principal Market, or, if the Principal
Market is not the principal securities exchange or trading market for such security, the last
closing sale price of such security on the principal securities exchange or trading market where
such security is listed or traded as reported by the Principal Market.


 


 









 





(f) “Confidential Information” means any information disclosed by either party to the other
party, either directly or indirectly, in writing, orally or by inspection of tangible objects
(including, without limitation, documents, prototypes, samples, plant and equipment), which is
designated as “Confidential,” “Proprietary” or some similar designation. Information communicated
orally shall be considered Confidential Information if such information is confirmed in writing as
being Confidential Information within ten (10) Business Days after the
initial disclosure. Confidential Information may also include information disclosed to a
disclosing party by third parties. Confidential Information shall not, however, include any
information which (i) was publicly known and made generally available in the public domain prior to
the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally
available after disclosure by the disclosing party to the receiving party through no action or
inaction of the receiving party; (iii) is already in the possession of the receiving party at the
time of disclosure by the disclosing party as shown by the receiving party’s files and records
immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third
party without a breach of such third party’s obligations of confidentiality; (v) is independently
developed by the receiving party without use of or reference to the disclosing party’s Confidential
Information, as shown by documents and other competent evidence in the receiving party’s
possession; or (vi) is required by law to be disclosed by the receiving party, provided that the
receiving party gives the disclosing party prompt written notice of such requirement prior to such
disclosure and assistance in obtaining an order protecting the information from public disclosure.



(g) “Custodian” means any receiver, trustee, assignee, liquidator or similar official under
any Bankruptcy Law.




(h) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



(i) “Maturity Date” means the date that is 720 Business Days (36 Monthly Periods) from the
Commencement Date.



(j) “Monthly Period” means each successive 20 Business Day period commencing with the
Commencement Date.



(k) “Person” means an individual or entity including but not limited to any limited liability
company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and
a government or any department or agency thereof.



(l) “Principal Market” means the Nasdaq Global Market; provided however, that in the event the
Company’s Common Stock is instead ever listed or traded on the Nasdaq Capital Market, the Nasdaq
Global Select Market, the New York Stock Exchange, the NYSE Amex, or the OTC Bulletin Board (it
being understood that as used herein “OTC Bulletin Board” shall also mean any successor or
comparable market quotation system or exchange to the OTC Bulletin Board such as the OTCQB operated
by the OTC Markets Group, Inc.), then the “Principal Market” shall mean such other market or
exchange on which the Company’s Common Stock is then listed or traded.



(m) “Purchase Amount” means, with respect to any Regular Purchase or Accelerated Purchase made
hereunder, the number of Purchase Shares to be purchased by the Investor pursuant to Section 2
hereof multiplied by the Purchase Price or Accelerated Purchase Price, as applicable.



(n) “Purchase Date” means with respect to any particular purchase made hereunder, the Business
Day on which the Investor receives by 10:00 a.m. eastern time of such Business
Day a valid Purchase Notice that the Investor is to buy Purchase Shares pursuant to Section 2
hereof.


 


 









 





(o) “Purchase Price” means the lower of the (A) the lowest Sale Price of the Common Stock on
the Purchase Date and (B) the arithmetic average of the three (3) lowest Closing Sale Prices for
the Common Stock during the twelve (12) consecutive Business Days ending on the Business Day
immediately preceding such Purchase Date (to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction).



(p) “Purchase Notice” shall mean a written notice from the Company to the Investor directing
the Investor to buy such Purchase Amount in Purchase Shares as specified by the Company therein on
the Purchase Date.



(q) “Sale Price” means any sale price for the shares of Common Stock on the Principal Market
as reported by the Principal Market.




(r) “SEC” means the United States Securities and Exchange Commission.




(s) “Securities Act” means the Securities Act of 1933, as amended.



(t) “Transfer Agent” means the transfer agent of the Company as set forth in Section 11(f)
hereof or such other person who is then serving as the transfer agent for the Company in respect of
the Common Stock.




2. PURCHASE OF COMMON STOCK.



Subject to the terms and conditions set forth in this Agreement, the Company has the right to
sell to the Investor, and the Investor has the obligation to purchase from the Company, Purchase
Shares as follows:



(a) Commencement of Sales of Common Stock. Following the satisfaction of the
conditions (the “Commencement”) as set forth in Sections 7 and 8 below (the date of satisfaction of
such conditions, the “Commencement Date”), the Company shall have the right but not the obligation
to direct the Investor by its delivery to the Investor of a Purchase Notice from time to time to
buy up to One Hundred Thousand (100,000) Purchase Shares (each such purchase a “Regular Purchase”),
subject in all cases to the Maximum Share Cap, at the Purchase Price on the Purchase Date. The
Company may deliver multiple Purchase Notices to the Investor so long as at least two (2) Business
Days have passed since the most recent Regular Purchase was completed.



(b) Accelerated Purchases. At any time on or after the Commencement Date, the Company
shall also have the right to direct the Investor to buy Purchase Shares (each such purchase an
“Accelerated Purchase”) in the amounts specified in this Section 2(b), subject in all cases to the
Maximum Share Cap, per Accelerated Purchase Notice at the Accelerated Purchase Price on the
Purchase Date by delivering to the Investor Accelerated Purchase Notices as follows: the
Accelerated Purchase Amount may be up to One Hundred Thousand Purchase Shares (100,000) per
Accelerated Purchase Notice provided that the Closing Sale Price of the Common Stock


 


 









 






 must not be
below $3.00 (subject to equitable adjustment for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction) on the Purchase
Date. With respect to each such Accelerated Purchase, the Company must deliver the Purchase Shares
before 1:00 p.m. eastern time on the Business Day following the Purchase Date. As used herein, the
term “Accelerated Purchase Price” shall mean the lesser of (i) the lowest Sale Price of the Common
Stock on the Purchase Date or (ii) the lowest Purchase Price during the previous ten (10) Business
Days prior to the date that the valid Accelerated Purchase Notice was received by the Investor.
However, if on any Purchase Date the Closing Sale Price of the Common Stock is below the
Accelerated Purchase threshold price, such Accelerated Purchase shall be void and the Investor’s
obligations to buy Purchase Shares in respect of that Accelerated Purchase Notice shall be
terminated. Thereafter, the Company shall again have the right to submit an Accelerated Purchase
Notice as set forth herein by delivery of a new Accelerated Purchase Notice only if the Closing
Sale Price of the Common Stock is at or above $3.00 on the date of the delivery of the Accelerated
Purchase Notice. The Company may deliver multiple Accelerated Purchase Notices to the Investor so
long as at least two (2) Business Days have passed since the most recent Accelerated Purchase was
completed.



(c) Payment for Purchase Shares. The Investor shall pay to the Company an amount
equal to the Purchase Amount with respect to such Purchase Shares as full payment for such Purchase
Shares via wire transfer of immediately available funds on the same Business Day that the Investor
receives such Purchase Shares if they are received by the Investor before 1:00 p.m. Eastern Time or
if received by the Investor after 1:00 p.m. eastern time, the next Business Day. The Company shall
not issue any fraction of a share of Common Stock upon any purchase. If the issuance would result
in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of
a share of Common Stock up or down to the nearest whole share. All payments made under this
Agreement shall be made in lawful money of the United States of America or wire transfer of
immediately available funds to such account as the Company may from time to time designate by
written notice in accordance with the provisions of this Agreement. Whenever any amount expressed
to be due by the terms of this Agreement is due on any day that is not a Business Day, the same
shall instead be due on the next succeeding day that is a Business Day.



(d) Compliance with Registration Statement Eligibility Requirements and Rules of Principal
Market.



(i) Maximum Share Cap. The Company shall not issue or sell any shares of Common Stock
pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common
Stock pursuant to this Agreement, to the extent that after giving effect thereto the aggregate
number of all shares of Common Stock that would be issued pursuant to this Purchase Agreement would
exceed 7,817,621 shares of Common Stock (the “Maximum Share Cap”), representing the lesser
of (i) the maximum number of shares of Common Stock that the Company may issue pursuant to this
Agreement and the transactions contemplated hereby without causing the Company to exceed the
limitations set forth in General Instruction I.B.6. of Form S-3 and the interpretations of the
SEC’s staff set forth in response to questions 139.23 and 139.24 of the Compliance and Disclosure
Interpretations of Securities Act Sections of the Division of Corporation Finance of the Commission
dated March 4, 2011 (the “Registration Statement Eligibility Requirements”) and (ii) 19.99% of the
47,443,513 outstanding shares of Common Stock on the date of this Agreement (representing the
maximum number of shares of
Common Stock that the Company may issue pursuant to this Agreement and the transactions
contemplated hereby without (a) breaching the Company’s obligations under the rules and regulations
of the Nasdaq Stock Market or the Principal Market or (b) obtaining stockholder approval under the
applicable rules and regulations of the Nasdaq Stock Market or the Principal Market). Neither the
Available Amount nor the Maximum Share Cap may be waived by the parties.


 


 









 





(ii) General. The Company shall not issue any shares of Common Stock pursuant to this
Agreement if such issuance would reasonably be expected to result in (A) non-compliance with the
Registration Statement Eligibility Requirements or (B) a breach of the Company’s obligations under
the rules and regulations of the Nasdaq Stock Market or the Principal Market. The provisions of
this Section 2(d) shall be implemented in a manner otherwise than in strict conformity with
the terms hereof only if necessary to ensure compliance with (1) the Registration Eligibility
Requirements or (2) the rules and regulations of the Nasdaq Stock Market or the Principal Market.



(e) Beneficial Ownership Limitation. Notwithstanding anything to the contrary
contained in this Agreement, the Company shall not issue or sell, and the Investor shall not
purchase or acquire, any shares of Common Stock under this Agreement which, when aggregated with
all other shares of Common Stock then beneficially owned by the Investor and its affiliates (as
calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder),
would result in the beneficial ownership by the Investor and its affiliates of more than 9.99% of
the then issued and outstanding shares of Common Stock (the “Beneficial Ownership Limitation”).
Upon the written or oral request of the Investor, the Company shall confirm orally or in writing to
the Investor within two (2) Business Days of such request the number of shares of Common Stock then
outstanding. The Investor and the Company shall each cooperate in good faith in the determinations
required hereby and the application hereof.



(f) Purchase Price Floor. The Company and the Investor shall not effect any sales and
purchases under this Agreement on any Purchase Date where the Purchase Price for any purchases of
Purchase Shares would be less than the Floor Price. “Floor Price” means $1.00, which shall be
appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction.




3. INVESTOR’S REPRESENTATIONS AND WARRANTIES.



The Investor represents and warrants to the Company that as of the date hereof and as of the
Commencement Date:



(a) Investment Purpose. The Investor is acquiring the Purchase Shares and Commitment
Shares (“Securities”) as principal for its own account and not with a view to or for distributing
or reselling such Securities or any part thereof in violation of the Securities Act or any
applicable state securities law, has no present intention of distributing any of such Securities in
violation of the Securities Act or any applicable state securities law and has no direct or
indirect arrangement or understandings with any other persons to distribute or regarding the
distribution of such Securities in violation of the Securities Act or any applicable state
securities
law (this representation and warranty not limiting the Investor’s right to sell the Securities
at any time pursuant to the registration statement described herein or otherwise in compliance with
applicable federal and state securities laws and with respect to the Commitment Shares, subject to
Section 5(e) hereof). The Investor is acquiring the Securities hereunder in the ordinary course of
its business.


 


 









 





(b) Accredited Investor Status. The Investor is an “accredited investor” as that term
is defined in Rule 501(a)(3) of Regulation D.



(c) Reliance on Exemptions. The Investor understands that the Securities may be
offered and sold to it in reliance on specific exemptions from the registration requirements of
United States federal and state securities laws and that the Company is relying in part upon the
truth and accuracy of, and the Investor’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Investor set forth herein in order to
determine the availability of such exemptions and the eligibility of the Investor to acquire the
Securities.



(d) Information. The Investor understands that its investment in the Securities
involves a high degree of risk. The Investor (i) is able to bear the economic risk of an
investment in the Securities including a total loss, (ii) has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and risks of the
proposed investment in the Securities and (iii) has had an opportunity to ask questions of and
receive answers from the officers of the Company concerning the financial condition and business of
the Company and others matters related to an investment in the Securities. Neither such inquiries
nor any other due diligence investigations conducted by the Investor or its representatives shall
modify, amend or affect the Investor’s right to rely on the Company’s representations and
warranties contained in Section 4 below. The Investor has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment decision with respect to its
acquisition of the Securities.



(e) No Governmental Review. The Investor understands that no United States federal or
state agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities or the fairness or suitability of the investment in
the Securities nor have such authorities passed upon or endorsed the merits of the offering of the
Securities.



(f) Transfer or Sale. The Investor understands that (i) the Securities may not be
offered for sale, sold, assigned or transferred unless (A) registered pursuant to the Securities
Act or (B) an exemption exists permitting such Securities to be sold, assigned or transferred
without such registration; (ii) any sale of the Securities made in reliance on Rule 144 may be made
only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any
resale of the Securities under circumstances in which the seller (or the person through whom the
sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act)
may require compliance with some other exemption under the Securities Act or the rules and
regulations of the SEC thereunder.


 


 









 





(g) Validity; Enforcement. This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Investor and is a valid and binding agreement of the
Investor enforceable against the Investor in accordance with its terms, subject as to
enforceability to general principles of equity and to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally,
the enforcement of applicable creditors’ rights and remedies.




(h) Residency. The Investor is a resident of the State of Illinois.



(i) No Prior Short Selling. The Investor represents and warrants to the Company that
at no time prior to the date of this Agreement has any of the Investor, its agents, representatives
or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any (i)
“short sale” (as such term is defined in Section 242.200 of Regulation SHO of the Exchange Act) of
the Common Stock or (ii) hedging transaction, which establishes a net short position with respect
to the Common Stock.




4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.



The Company represents and warrants to the Investor that as of the date hereof and as of the
Commencement Date:



(a) Organization and Qualification. The Company and each of the Subsidiaries (which
for purposes of this Agreement means any entity in which the Company, directly or indirectly, owns
50% or more of the voting stock or capital stock or other similar equity interests) is an entity
duly incorporated or otherwise organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation or organization, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently conducted. Neither
the Company nor any Subsidiary is in violation nor default of any of the provisions of its
respective certificate or articles of incorporation, bylaws or other organizational or charter
documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is
in good standing as a foreign corporation or other entity in each jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification necessary, except where
the failure to be so qualified or in good standing, as the case may be, could not have or
reasonably be expected to result in: (i) a material adverse effect on the legality, validity or
enforceability of any Transaction Document, (ii) a material adverse effect on the results of
operations, assets, business, prospects or condition (financial or otherwise) of the Company and
the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to
perform in any material respect on a timely basis its obligations under any Transaction Document
(any of (i), (ii) or (iii), a “Material Adverse Effect”) and no proceeding has been
instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or
curtail such power and authority or qualification. The Company has no Subsidiaries except as set
forth on Schedule 4(a).


 


 









 





(b) Authorization; Enforcement; Validity. (i) The Company has the requisite corporate
power and authority to enter into and perform its obligations under this Agreement, the
Registration Rights Agreement and each of the other agreements entered into by the parties on the
Commencement Date and attached hereto as exhibits to this Agreement (collectively, the
“Transaction Documents”), and to issue the Securities in accordance with the terms hereof and
thereof, (ii) the execution and delivery of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby, including without
limitation, the issuance of the Commitment Shares and the reservation for issuance and the issuance
of the Purchase Shares issuable under this Agreement, have been duly authorized by the Company’s
Board of Directors and no further consent or authorization is required by the Company, its Board of
Directors or its shareholders, (iii) this Agreement has been, and each other Transaction Document
shall be on the Commencement Date, duly executed and delivered by the Company and (iv) this
Agreement constitutes, and each other Transaction Document upon its execution on behalf of the
Company, shall constitute, the valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and
remedies. The Board of Directors of the Company has approved the resolutions (the “Signing
Resolutions”) substantially in the form as set forth as Exhibit C attached hereto to
authorize this Agreement and the transactions contemplated hereby. The Signing Resolutions are
valid, in full force and effect and have not been modified or supplemented in any respect. No
other approvals or consents of the Company’s Board of Directors and/or shareholders is necessary
under applicable laws and the Company’s Certificate of Incorporation and/or Bylaws to authorize the
execution and delivery of this Agreement or any of the transactions contemplated hereby, including,
but not limited to, the issuance of the Commitment Shares and the issuance of the Purchase Shares.



(c) Capitalization. As of the date hereof, the authorized capital stock of the
Company is set forth on Schedule 4(c). Except as disclosed in Schedule 4(c), (i)
no shares of the Company’s capital stock are subject to preemptive rights or any other similar
rights or any liens or encumbrances suffered or permitted by the Company, (ii) there are no
outstanding debt securities, (iii) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any of its Subsidiaries, or
contracts, commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or
any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities or rights convertible into, any shares of
capital stock of the Company or any of its Subsidiaries, (iv) there are no agreements or
arrangements under which the Company or any of its Subsidiaries is obligated to register the sale
of any of their securities under the Securities Act (except the Registration Rights Agreement), (v)
there are no outstanding securities or instruments of the Company or any of its Subsidiaries which
contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries is or may become
bound to redeem a security of the Company or any of its Subsidiaries, (vi) there are no securities
or instruments containing anti-dilution or similar provisions that will be triggered by the
issuance of the Securities as described in this Agreement and (vii) the Company does not have any
stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
The Company has furnished to the Investor true and correct copies of the Company’s Certificate of
Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”),
and the Company’s By-laws, as amended and as in effect on the date hereof (the
“By-laws”), and summaries of the terms of all securities convertible into or exercisable for
Common Stock, if any, and copies of any documents containing the material rights of the holders
thereof in respect thereto.



 


 









 






(d) Issuance of Securities. Upon issuance and payment therefor in accordance with the
terms and conditions of this Agreement, the Purchase Shares shall be validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to the issue thereof, with
the holders being entitled to all rights accorded to a holder of Common Stock. The Commitment
Shares have been duly authorized and, upon issuance in accordance with the terms hereof, the
Commitment Shares shall be (i) validly issued, fully paid and non-assessable and (ii) free from all
taxes, liens and charges with respect to the issue thereof. 5,000,000 shares of Common Stock have
been duly authorized and reserved for issuance upon purchase under this Agreement as Purchase
Shares. 149,165 shares of Common Stock (subject to equitable adjustment for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction) have been duly
authorized and reserved for issuance as Commitment Shares in accordance with this Agreement.



(e) No Conflicts. Except as disclosed in Schedule 4(e), the execution,
delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the
reservation for issuance and issuance of the Purchase Shares) will not (i) result in a violation of
the Certificate of Incorporation, any Certificate of Designations, Preferences and Rights of any
outstanding series of preferred stock of the Company or the By-laws or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or any of its
Subsidiaries is a party, or result in a violation of any law, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations and the rules and regulations
of the Principal Market applicable to the Company or any of its Subsidiaries) or by which any
property or asset of the Company or any of its Subsidiaries is bound or affected, except in the
case of conflicts, defaults, terminations, amendments, accelerations, cancellations and violations
under clause (ii), which could not reasonably be expected to result in a Material Adverse Effect.
Except as disclosed in Schedule 4(e), neither the Company nor its Subsidiaries is in
violation of any term of or in default under its Certificate of Incorporation, any Certificate of
Designation, Preferences and Rights of any outstanding series of preferred stock of the Company or
By-laws or their organizational charter or by-laws, respectively. Except as disclosed in
Schedule 4(e), neither the Company nor any of its Subsidiaries is in violation of any term
of or is in default under any material contract, agreement, mortgage, indebtedness, indenture,
instrument, judgment, decree or order or any statute, rule or regulation applicable to the Company
or its Subsidiaries, except for possible conflicts, defaults, terminations or amendments which
could not reasonably be expected to have a Material Adverse Effect. The business of the Company
and its Subsidiaries is not being conducted, and shall not be conducted, in violation of any law,
ordinance, regulation of any governmental entity, except for possible violations, the sanctions for
which either individually or in the aggregate could not reasonably be expected to have a Material
Adverse Effect. Except as specifically contemplated by this Agreement and as required under the
Securities Act or applicable state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with, any court or
governmental agency or any regulatory or self-regulatory agency in order for it to execute,
deliver or perform any of its obligations under or contemplated by the Transaction Documents in
accordance with the terms hereof or thereof. Except as disclosed in Schedule 4(e), all
consents, authorizations, orders, filings and registrations which the Company is required to obtain
pursuant to the preceding sentence shall be obtained or effected on or prior to the Commencement
Date. Except as listed in Schedule 4(e), since one year prior to the date hereof, the
Company has not received nor delivered any notices or correspondence from or to the Principal
Market. The Principal Market has not commenced any delisting proceedings against the Company.


 


 









 





(f) SEC Documents; Financial Statements. Except as disclosed in Schedule 4(f)
the Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the
Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, being collectively
referred to herein as the “SEC Documents”) on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Documents prior to the expiration of any such
extension. As of their respective dates, the SEC Documents complied in all material respects with
the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC
Documents, when filed, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents comply in all material respects with
applicable accounting requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles applied on a consistent
basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial
statements or the notes thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the financial position of
the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments. Except as listed in Schedule 4(f), the
Company has received no notices or correspondence from the SEC for the one year preceding the date
hereof. Since January 1, 2010, the SEC has not commenced any enforcement proceedings against the
Company or any of its subsidiaries.



(g) Absence of Certain Changes. Except as disclosed in Schedule 4(g), since
November 30, 2010, there has been no material adverse change in the business, properties,
operations, financial condition or results of operations of the Company or its Subsidiaries. The
Company has not taken any steps, and does not currently expect to take any steps, to seek
protection pursuant to any Bankruptcy Law nor does the Company or any of its Subsidiaries have any
knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or
insolvency proceedings. The Company is financially solvent and is generally able to pay its debts
as they become due.


 


 









 





(h) Absence of Litigation. There is no action, suit, proceeding, inquiry or
investigation before or by any court, public board, government agency, self-regulatory
organization or body pending or, to the knowledge of the Company or any of its Subsidiaries,
threatened against or affecting the Company, the Common Stock or any of the Company’s Subsidiaries
or any of the Company’s or the Company’s Subsidiaries’ officers or directors in their capacities as
such, which could reasonably be expected to have a Material Adverse Effect. A description of each
action, suit, proceeding, inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body which, as of the date of this Agreement, is pending or
threatened in writing against or affecting the Company, the Common Stock or any of the Company’s
Subsidiaries or any of the Company’s or the Company’s Subsidiaries’ officers or directors in their
capacities as such, is set forth in Schedule 4(h).



(i) Acknowledgment Regarding Investor’s Status. The Company acknowledges and agrees
that the Investor is acting solely in the capacity of arm’s length purchaser with respect to the
Transaction Documents and the transactions contemplated hereby and thereby. The Company further
acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or
in any similar capacity) with respect to the Transaction Documents and the transactions
contemplated hereby and thereby and any advice given by the Investor or any of its representatives
or agents in connection with the Transaction Documents and the transactions contemplated hereby and
thereby is merely incidental to the Investor’s purchase of the Securities. The Company further
represents to the Investor that the Company’s decision to enter into the Transaction Documents has
been based solely on the independent evaluation by the Company and its representatives and
advisors.



(j) No General Solicitation. Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the Securities Act) in connection with the
offer or sale of the Securities.



(k) Intellectual Property Rights. The Company and its Subsidiaries own or possess
adequate rights or licenses to use all material trademarks, trade names, service marks, service
mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights necessary to conduct their
respective businesses as now conducted. Except as set forth on Schedule 4(k), none of the
Company’s material trademarks, trade names, service marks, service mark registrations, service
names, patents, patent rights, copyrights, inventions, licenses, approvals, government
authorizations, trade secrets or other intellectual property rights have expired or terminated, or,
by the terms and conditions thereof, could expire or terminate within two years from the date of
this Agreement. The Company and its Subsidiaries do not have any knowledge of any infringement by
the Company or its Subsidiaries of any material trademark, trade name rights, patents, patent
rights, copyrights, inventions, licenses, service names, service marks, service mark registrations,
trade secret or other similar rights of others, or of any such development of similar or identical
trade secrets or technical information by others and, except as set forth on Schedule 4(k),
there is no claim, action or proceeding being made or brought against, or to the Company’s
knowledge, being threatened against, the Company or its Subsidiaries regarding trademark, trade
name, patents, patent rights, invention, copyright, license, service names, service marks, service
mark registrations, trade secret or other infringement, which could reasonably be expected to have
a Material Adverse Effect.


 


 









 





(l) Environmental Laws. The Company and its Subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any such permit, license or
approval, except where, in each of the three foregoing clauses, the failure to so comply could not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.



(m) Title. The Company and the Subsidiaries have good and marketable title in fee
simple to all real property owned by them and good and marketable title in all personal property
owned by them that is material to the business of the Company and the Subsidiaries, in each case
free and clear of all liens, encumbrances and defects (“Liens”), except for Liens as do not
materially affect the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and the Subsidiaries, and Liens for the payment
of federal, state or other taxes, the payment of which is neither delinquent nor subject to
penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the
Subsidiaries are in compliance with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings by the Company and its
Subsidiaries.



(n) Insurance. The Company and each of its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as management
of the Company believes to be prudent and customary in the businesses in which the Company and its
Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any
insurance coverage sought or applied for and neither the Company nor any such Subsidiary has any
reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business or operations of the Company and its
Subsidiaries, taken as a whole.



(o) Regulatory Permits. The Company and its Subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and neither the Company
nor any such Subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit.



(p) Tax Status. The Company and each of its Subsidiaries has made or filed all
federal and state income and all other material tax returns, reports and declarations required by
any jurisdiction to which it is subject (unless and only to the extent that the Company and each of
its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all
unpaid and unreported taxes) and has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and has set aside on its books provision
reasonably adequate for the payment of all taxes for periods subsequent to the periods to
which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the
Company know of no basis for any such claim.


 


 









 





(q) Transactions With Affiliates. Except as set forth in the SEC Documents, none of
the officers or directors of the Company and, to the knowledge of the Company, none of the
employees of the Company is presently a party to any transaction with the Company or any Subsidiary
(other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of
real or personal property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer, director, trustee or
partner, in each case in excess of $100,000 other than for (i) payment of salary or consulting fees
for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii)
other employee benefits, including stock option agreements under any stock option plan of the
Company.



(r) Application of Takeover Protections. The Company and its board of directors have
taken or will take prior to the Commencement Date all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision under the
Certificate of Incorporation or the laws of the state of its incorporation which is or could become
applicable to the Investor as a result of the transactions contemplated by this Agreement,
including, without limitation, the Company’s issuance of the Securities and the Commitment Shares
and the Investor’s ownership of the Securities and the Commitment Shares.



(s) Disclosure. Except with respect to the material terms and conditions of the
transactions contemplated by the Transaction Documents, the Company confirms that neither it nor
any other Person acting on its behalf has provided the Investor or its agents or counsel with any
information that it believes constitutes or might constitute material, non-public information which
is not otherwise disclosed in the Registration Statement or prospectus supplements thereto or
otherwise made publicly available. The Company understands and confirms that the Investor will
rely on the foregoing representation in effecting purchases and sales of securities of the Company.
All of the disclosure furnished by or on behalf of the Company to the Investor regarding the
Company, its business and the transactions contemplated hereby, including the disclosure schedules
to this Agreement, is true and correct and does not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. The press releases disseminated by
the Company during the twelve months preceding the date of this Agreement taken as a whole do not
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made and when made, not misleading. The Company acknowledges and agrees that
the Investor neither makes nor has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in Section 3 hereof.


 


 









 





(t) Foreign Corrupt Practices. Neither the Company, nor to the knowledge of the
Company, any agent or other person acting on behalf of the Company, has (i) directly or indirectly,
used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related
to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political parties or campaigns from
corporate funds, (iii) failed to disclose fully any contribution made by the Company (or made by
any person acting on its behalf of which the Company is aware) which is in violation of law, or
(iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977,
as amended.




5. COVENANTS.



(a) Filing of Form 8-K and Registration Statement. The Company agrees that it shall,
within the time required under the Exchange Act file a Report on Form 8-K disclosing this Agreement
and the transaction contemplated hereby. The Company shall also file within ninety (90) Business
Days from the date hereof a new registration statement covering only the sale of the Purchase
Shares and the Commitment Shares, in accordance with the terms of the Registration Rights Agreement
between the Company and the Investor, dated as of the date hereof (“Registration Rights
Agreement”). Any securities issuable under this Agreement that have not been registered under the
Securities Act shall bear the following restrictive legend (the “Restrictive Legend”):




THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL, IN A CUSTOMARY FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.



(b) Blue Sky. The Company shall use its reasonable best efforts to take such action,
if any, as is reasonably necessary in order to obtain an exemption for or to qualify (i) the
initial sale of the Commitment Shares and any Purchase Shares to the Investor under this Agreement
and (ii) any subsequent resale of the Commitment Shares and any Purchase Shares by the Investor, in
each case, under applicable securities or “Blue Sky” laws of the states of the United States in
such states as is reasonably requested by the Investor from time to time, and shall provide
evidence of any such action so taken to the Investor.


 


 









 





(c) Listing. The Company shall promptly secure the listing of all of the Purchase
Shares and Commitment Shares upon each national securities exchange and automated quotation system,
if any, upon which shares of Common Stock are then listed (subject to official notice of
issuance) and shall maintain, so long as any other shares of Common Stock shall be so listed,
such listing of all such securities from time to time issuable under the terms of the Transaction
Documents. The Company shall maintain the Common Stock’s authorization for quotation on the
Principal Market. The Company shall promptly, and in no event later than the following Business
Day, provide to the Investor copies of any notices it receives from the Principal Market regarding
the continued eligibility of the Common Stock for listing on such automated quotation system or
securities exchange. The Company shall pay all fees and expenses in connection with satisfying its
obligations under this Section.



(d) Limitation on Short Sales and Hedging Transactions. The Investor agrees that
beginning on the date of this Agreement and ending on the date of termination of this Agreement as
provided in Section 11, the Investor and its agents, representatives and affiliates shall not in
any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such
term is defined in Section 242.200 of Regulation SHO of the Exchange Act) of the Common Stock or
(ii) hedging transaction, which establishes a net short position with respect to the Common Stock.



(e) Issuance of Commitment Shares. In connection with each purchase of Purchase
Shares hereunder, the Company agrees to issue to the Investor a number of shares of Common Stock
(the “Commitment Shares” ) equal to the product of (x) 149,165 and (y) the Purchase Amount
Fraction. The “Purchase Amount Fraction” shall mean a fraction, the numerator of which is the
Purchase Amount purchased by the Investor with respect to such purchase of Purchase Shares and the
denominator of which is Ten Million Dollars ($10,000,000). The Commitment Shares shall be
equitably adjusted for any reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction.



(f) Due Diligence. The Investor shall have the right, from time to time as the
Investor may reasonably deem appropriate, to perform reasonable due diligence on the Company during
normal business hours. The Company and its officers and employees shall provide information and
reasonably cooperate with the Investor in connection with any reasonable request by the Investor
related to the Investor’s due diligence of the Company. Each party hereto agrees not to disclose
any Confidential Information of the other party to any third party and shall not use the
Confidential Information for any purpose other than in connection with, or in furtherance of, the
transactions contemplated hereby. Each party hereto acknowledges that the Confidential Information
shall remain the property of the disclosing party and agrees that it shall take all reasonable
measures to protect the secrecy of any Confidential Information disclosed by the other party. The
Company confirms that neither it nor any other Person acting on its behalf shall provide the
Investor or its agents or counsel with any information that it believes constitutes or might
constitute material, non-public information which is not otherwise disclosed in the Registration
Statement or prospectus supplements thereto or otherwise publicly disclosed.



(g) Purchase Records. The Investor and the Company shall each maintain records showing
the remaining Available Amount at any given time and the dates and Purchase Amounts for each
purchase or shall use such other method, reasonably satisfactory to the Investor and the Company.


 


 









 





(h) Taxes. The Company shall pay any and all transfer, stamp or similar taxes that
may be payable with respect to the issuance and delivery of any shares of Common Stock to the
Investor made under this Agreement.



(i) No Variable Rate Transactions. From the date hereof until the Maturity Date the
Company shall be prohibited from effecting or entering into an agreement to effect any issuance by
the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents for cash
consideration (or a combination of units thereof) involving a Variable Rate Transaction other than
in connection with an Exempt Issuance. “Variable Rate Transaction” means a transaction in which
the Company (i) issues or sells any debt or equity securities that are convertible into,
exchangeable or exercisable for, or include the right to receive additional shares of Common Stock
either (A) at a conversion price, exercise price or exchange rate or other price that is based upon
and/or varies with the trading prices of or quotations for the shares of Common Stock at any time
after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or
exchange price that is subject to being reset at some future date after the initial issuance of
such debt or equity security or upon the occurrence of specified or contingent events directly or
indirectly related to the business of the Company or the market for the Common Stock or (ii) enters
into any agreement, including, but not limited to, an equity line of credit, whereby the Company
may sell securities at a future determined price. “Exempt Issuance” means the issuance of
(a) shares of Common Stock or options to employees, officers, directors or vendors of the Company
pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a
majority of the members of a committee of directors established for such purpose, (b) securities
upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other
securities exercisable or exchangeable for or convertible into shares of Common Stock issued and
outstanding on the date of this Agreement, provided that such securities have not been amended
since the date of this Agreement to increase the number of such securities or to decrease the
exercise price, exchange price or conversion price of such securities, and (c) securities issued
pursuant to acquisitions or strategic transactions approved by the directors of the Company, which
acquisitions or strategic transactions can have a Variable Rate Transaction component, provided
that any such issuance shall only be to a Person (or to the equity holders of a Person) which is,
itself or through its subsidiaries, an operating company or an asset in a business synergistic with
the business of the Company and shall provide to the Company additional benefits in addition to the
investment of funds, but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary business is investing in
securities. “Common Stock Equivalents” means any securities of the Company, which would
entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any
debt, preferred stock, rights, options, warrants or other instrument that is at any time
convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to
receive, Common Stock. From the date hereof and for 180 days after the Commencement Date, the
Company agrees that prior to entering into each and any definitive agreement for the sale directly
or indirectly of any debt, Common Stock or Common Stock Equivalents, a (“Subsequent Transaction”),
the Company shall provide notice to the Investor (“Offering Notice”) not less than three (3)
Business Days nor more than five (5) Business Days prior to entering into any such Subsequent
Transaction, including the relevant terms and conditions of such Subsequent Transaction, and the
Investor shall have the right to participate on equivalent terms and conditions in up to 25% of



 


 









 






such Subsequent Transaction by delivering notice to the Company not later than two (2) Business Days after receipt of the Offering Notice, which notice from Investor shall indicate
Investor’s intention to participate in the Subsequent Transaction and the amount of its
participation. In the event that the Investor does not provide notice within the two (2) day
period and the Company does not enter into such Subsequent Transaction within five (5) Business
Days from the Offering Notice, the Company shall again be required to provide an Offering Notice as
set forth herein. The Company shall deliver an Offering Notice for each and any Subsequent
Transaction and agrees that it shall not execute any definitive documentation for any Subsequent
Transaction whatsoever, unless it has first complied with this Section 5(i). Notwithstanding
anything to the contrary in this Section 5(i) and unless otherwise agreed to by Investor, the
Company shall either confirm in writing to Investor that the transaction with respect to the
Subsequent Transaction has been abandoned or shall publicly disclose its intention to enter into
the Subsequent Transaction, in either case in such a manner such that Investor will not be in
possession of any material, non-public information, by the fifth (5th) Business Day
following delivery of the Offering Notice. If by such fifth (5th) Business Day, no
public disclosure regarding a transaction with respect to the Subsequent Transaction has been made,
and no notice regarding the abandonment of such transaction has been received by Investor, such
transaction shall be deemed to have been abandoned and Investor shall not be in possession of any
material, non-public information with respect to the Company or any of its Subsidiaries. Should the
Company decide to pursue such transaction with respect to the Subsequent Transaction, the Company
shall provide Investor with another Offering Notice in accordance with, and subject to, the terms
of this Section 5(i) and Investor will again have the right of participation set forth in this
Section 5(i).




6. TRANSFER AGENT INSTRUCTIONS.



All of the Purchase Shares and Commitment Shares to be issued under this Agreement shall be
issued without any restrictive legend unless the Investor expressly consents otherwise. The
Company shall issue irrevocable instructions to the Transfer Agent, and any subsequent transfer
agent, to issue Purchase Shares in the name of the Investor for the Purchase Shares in the form
agreed to by the parties prior to the Commencement Date (the “Irrevocable Transfer Agent
Instructions”). The Company warrants to the Investor that no instruction other than the
Irrevocable Transfer Agent Instructions referred to in this Section 6, will be given by the Company
to the Transfer Agent with respect to the Purchase Shares and that the Commitment Shares and the
Purchase Shares shall otherwise be freely transferable on the books and records of the Company as
and to the extent provided in this Agreement.




7. CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE
SALES OF SHARES OF COMMON STOCK.



The right of the Company hereunder to commence sales of the Purchase Shares is subject to the
satisfaction of each of the following conditions:



(a) The Investor shall have executed each of the Transaction Documents and delivered the same
to the Company;



(b) A registration statement covering the sale of all of the Commitment Shares and Purchase
Shares shall have been declared effective under the Securities Act by the SEC and no
stop order with respect to the registration statement shall be pending or threatened by the
SEC; and


 


 









 





(c) An additional listing application covering the sale of all of the Commitment Shares and
Purchase Shares has been approved by the Principal Market.




8. CONDITIONS TO THE INVESTOR’S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK.



The obligation of the Investor to buy Purchase Shares under this Agreement is subject to the
satisfaction of each of the following conditions and once such conditions have been initially
satisfied, there shall not be any ongoing obligation to satisfy such conditions after the
Commencement has occurred:



(a) The Company shall have executed each of the Transaction Documents and delivered the same
to the Investor;



(b) The Common Stock shall be authorized for quotation on the Principal Market, trading in the
Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal
Market and the Purchase Shares and Commitment Shares shall be approved for listing upon the
Principal Market;



(c) The Investor shall have received the opinions of the Company’s legal counsel dated as of
the Commencement Date substantially in the form of Exhibit A attached hereto;



(d) The representations and warranties of the Company shall be true and correct in all
material respects (except to the extent that any of such representations and warranties is already
qualified as to materiality in Section 4 above, in which case, such representations and warranties
shall be true and correct without further qualification) as of the date when made and as of the
Commencement Date as though made at that time (except for representations and warranties that speak
as of a specific date) and the Company shall have performed, satisfied and complied with the
covenants, agreements and conditions required by the Transaction Documents to be performed,
satisfied or complied with by the Company at or prior to the Commencement Date. The Investor shall
have received a certificate, executed by the CEO, President or CFO of the Company, dated as of the
Commencement Date, to the foregoing effect in the form attached hereto as Exhibit B;



(e) The Board of Directors of the Company shall have adopted resolutions in the form attached
hereto as Exhibit C which shall be in full force and effect without any amendment or
supplement thereto as of the Commencement Date;



(f) As of the Commencement Date, the Company shall have reserved out of its authorized and
unissued Common Stock, (A) solely for the purpose of effecting purchases of Purchase Shares
hereunder, 5,000,000 shares of Common Stock and (B) as Commitment Shares in accordance with Section
5(e) hereof, 149,165 shares of Common Stock;


 


 









 





(g) The Irrevocable Transfer Agent Instructions, in form acceptable to the parties shall have
been delivered to and acknowledged in writing by the Company and the Company’s Transfer Agent;



(h) The Company shall have delivered to the Investor a certificate evidencing the
incorporation and good standing of the Company in the State of Florida issued by the Secretary of
State of the State of Florida as of a date within ten (10) Business Days of the Commencement Date;



(i) The Company shall have delivered to the Investor a certified copy of the Certificate of
Incorporation as certified by the Secretary of State of the State of Florida within ten (10)
Business Days of the Commencement Date;



(j) The Company shall have delivered to the Investor a secretary’s certificate executed by the
Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as
Exhibit D;



(k) A registration statement covering the sale of all of the Purchase Shares and Commitment
Shares shall have been declared effective under the Securities Act by the SEC and no stop order
with respect to the registration statement shall be pending or threatened by the SEC. The Company
shall have prepared and delivered to the Investor a final and complete form of prospectus, dated
and current as of the Commencement Date, to be used by the Investor in connection with any sales of
any Purchase Shares or Commitment Shares, and to be filed by the Company one Business Day after the
Commencement Date. The Company shall have made all filings under all applicable federal and state
securities laws necessary to consummate the issuance of the Commitment Shares and Purchase Shares
pursuant to this Agreement in compliance with such laws;



(l) No Event of Default has occurred, or any event which, after notice and/or lapse of time,
would become an Event of Default has occurred;



(m) On or prior to the Commencement Date, the Company shall take all necessary action, if any,
and such actions as reasonably requested by the Investor, in order to render inapplicable any
control share acquisition, business combination, shareholder rights plan or poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the
Certificate of Incorporation or the laws of the state of its incorporation which is or could become
applicable to the Investor as a result of the transactions contemplated by this Agreement,
including, without limitation, the Company’s issuance of the Securities and the Investor’s
ownership of the Securities; and



(n) The Company shall have provided the Investor with the information requested by the
Investor in connection with its due diligence requests made prior to, or in connection with, the
Commencement, in accordance with the terms of Section 5(f) hereof.


 


 









 






9. INDEMNIFICATION.



In consideration of the Investor’s execution and delivery of the Transaction Documents and
acquiring the Securities hereunder and in addition to all of the Company’s other obligations
under the Transaction Documents, the Company shall defend, indemnify and hold harmless the
Investor and all of its affiliates, shareholders, officers, directors, employees and direct or
indirect investors and any of the foregoing person’s agents or other representatives (including,
without limitation, those retained in connection with the transactions contemplated by this
Agreement) (collectively, the “Indemnitees”) from and against any and all actions, causes of
action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Indemnitee is a party to the action for
which indemnification hereunder is sought), and including reasonable attorneys’ fees and
disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or
arising out of, or relating to (a) any misrepresentation or breach of any representation or
warranty made by the Company in the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of
the Company contained in the Transaction Documents or any other certificate, instrument or document
contemplated hereby or thereby, or (c) any cause of action, suit or claim brought or made against
such Indemnitee and arising out of or resulting from the execution, delivery, performance or
enforcement of the Transaction Documents or any other certificate, instrument or document
contemplated hereby or thereby. Provided, however, that the Indemnitees shall not be entitled to
indemnification under this Section if the Indemnified Liabilities are a result of, or arise out of,
or relate to (a) any misrepresentation or breach of any representation or warranty made by the
Investor in the Transaction Documents or any other certificate, instrument or document contemplated
hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Investor
contained in the Transaction Documents or any other certificate, instrument or document
contemplated hereby or thereby, or (c) the gross negligence or willful misconduct of the
Indemnitee. To the extent that the foregoing undertaking by the Company may be unenforceable for
any reason, the Company shall make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law. Payment under this
indemnification shall be made within thirty (30) days from the date Investor makes written request
for it.




10. EVENTS OF DEFAULT.



An “Event of Default” shall be deemed to have occurred at any time as any of the following
events occurs:



(a) the effectiveness of a registration statement registering the Purchase Shares or
Commitment Shares lapses for any reason (including, without limitation, the issuance of a stop
order) or is unavailable to the Investor for sale of any or all of the Purchase Shares or
Commitment Shares (“Registrable Securities”), and such lapse or unavailability continues for a
period of ten (10) consecutive Business Days or for more than an aggregate of thirty (30) Business
Days in any 365-day period;



(b) the suspension from trading or failure of the Common Stock to be listed on the Principal
Market for a period of three (3) consecutive Business Days;



(c) the delisting of the Company’s Common Stock from the Principal Market, provided, however,
that the Common Stock is not immediately thereafter trading on the New
York Stock Exchange, the Nasdaq Capital Market, the Nasdaq Global Select Market, the OTC
Bulletin Board, or NYSE Amex;


 


 









 





(d) the failure for any reason by the Transfer Agent to issue Purchase Shares to the Investor
within five (5) Business Days after the applicable Purchase Date which the Investor is entitled to
receive;



(e) the Company breaches any representation, warranty, covenant or other term or condition
under any Transaction Document if such breach could have a Material Adverse Effect and except, in
the case of a breach of a covenant which is reasonably curable, only if such breach continues for a
period of at least five (5) Business Days;



(f) if any Person commences a proceeding against the Company pursuant to or within the meaning
of any Bankruptcy Law;



(g) if the Company pursuant to or within the meaning of any Bankruptcy Law; (A) commences a
voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case,
(C) consents to the appointment of a Custodian of it or for all or substantially all of its
property, (D) makes a general assignment for the benefit of its creditors or is generally unable to
pay its debts as the same become due; or



(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that
(A) is for relief against the Company in an involuntary case, (B) appoints a Custodian of the
Company or for all or substantially all of its property, or (C) orders the liquidation of the
Company or any Subsidiary.




(i) if at any time after the Commencement Date, the “Maximum Share Cap” is reached.



In addition to any other rights and remedies under applicable law and this Agreement, including the
Investor termination rights under Section 11 hereof, so long as an Event of Default has occurred
and is continuing, or if any event which, after notice and/or lapse of time, would become an Event
of Default, has occurred and is continuing, the Investor shall not be permitted or obligated to
purchase any shares of Common Stock under this Agreement. If pursuant to or within the meaning of
any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding
against the Company, a Custodian is appointed for the Company or for all or substantially all of
its property, or the Company makes a general assignment for the benefit of its creditors, (any of
which would be an Event of Default as described in Sections 10(f), 10(g) and 10(h) hereof) this
Agreement shall automatically terminate without any liability or payment to the Company without
further action or notice by any Person. No such termination of this Agreement under Section 11(a)
or 11(d) shall affect the Company’s or the Investor’s obligations under this Agreement with respect
to pending purchases and the Company and the Investor shall complete their respective obligations
with respect to any pending purchases under this Agreement.


 


 









 






11. TERMINATION



This Agreement may be terminated only as follows:



(a) If pursuant to or within the meaning of any Bankruptcy Law, the Company commences a
voluntary case or any Person commences a proceeding against the Company, a Custodian is appointed
for the Company or for all or substantially all of its property, or the Company makes a general
assignment for the benefit of its creditors, (any of which would be an Event of Default as
described in Sections 10(f), 10(g) and 10(h) hereof) this Agreement shall automatically terminate
without any liability or payment to the Company without further action or notice by any Person. No
such termination of this Agreement under this Section 11(a) shall affect the Company’s or the
Investor’s obligations under this Agreement with respect to pending purchases and the Company and
the Investor shall complete their respective obligations with respect to any pending purchases
under this Agreement.



(b) In the event that the Commencement shall not have occurred, the Company shall have the
option to terminate this Agreement for any reason or for no reason without any liability whatsoever
of any party to any other party under this Agreement.



(c) In the event that the Commencement shall not have occurred on or before 120 days after the
date of this Agreement, due to the failure to satisfy the conditions set forth in Sections 7 and 8
above with respect to the Commencement, the non-breaching party shall have the option to terminate
this Agreement at the close of business on such date or thereafter without liability of any party
to any other party.



(d) At any time after the Commencement Date, the Company shall have the option to terminate
this Agreement for any reason or for no reason by delivering notice (a “Company Termination
Notice”) to the Investor electing to terminate this Agreement without any liability whatsoever of
any party to any other party under this Agreement. The Company Termination Notice shall not be
effective until one (1) Business Day after it has been received by the Investor. No such
termination of this Agreement under this Section 11(d) shall affect the Company’s or the Investor’s
obligations under this Agreement with respect to pending purchases and the Company and the Investor
shall complete their respective obligations with respect to any pending purchases under this
Agreement.



(e) This Agreement shall automatically terminate on the date that the Company sells and the
Investor purchases the full Available Amount of Purchase Shares, subject in all cases to the
Maximum Share Cap, as provided herein, without any action or notice on the part of any party and
without any liability whatsoever of any party to any other party under this Agreement.



(f) If by the Maturity Date for any reason or for no reason the full Available Amount of
Purchase Shares, subject in all cases to the Maximum Share Cap, under this Agreement has not been
purchased as provided for in Section 2 of this Agreement, this Agreement shall automatically
terminate on the Maturity Date, without any action or notice on the part of any party and without
any liability whatsoever of any party to any other party under this Agreement.


 


 









 





Except as set forth in Sections 11(a) (in respect of an Event of Default under Sections 10(f),
10(g) and 10(h)), 11(c) and 11(f), any termination of this Agreement pursuant to this Section 11
shall be effected by written notice from the Company to the Investor, or the Investor to the
Company, as the case may be, setting forth the basis for the termination hereof. The
representations and warranties and covenants of the Company and the Investor contained in
Sections 3, 4, 5, and 6 hereof, the indemnification provisions set forth in Section 9 hereof and
the agreements and covenants set forth in Sections 10 and 11, shall survive the Commencement and
any termination of this Agreement. No termination of this Agreement shall affect the Company’s or
the Investor’s rights or obligations (i) under the Registration Rights Agreement which shall
survive any such termination or (ii) under this Agreement with respect to pending purchases and the
Company and the Investor shall complete their respective obligations with respect to any pending
purchases under this Agreement.




12. MISCELLANEOUS.



(a) Governing Law; Jurisdiction; Jury Trial. The corporate laws of the State of
Florida shall govern all issues concerning the relative rights of the Company and its shareholders.
All other questions concerning the construction, validity, enforcement and interpretation of this
Agreement and the other Transaction Documents shall be governed by the internal laws of the State
of New York, without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that would cause the application of
the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in the City of
Chicago, for the adjudication of any dispute hereunder or under the other Transaction Documents or
in connection herewith or therewith, or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.



(b) Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature or signature delivered by e-mail in a “.pdf” format data file
shall be considered due execution and shall be binding upon the signatory thereto with the same
force and effect as if the signature were an original, not a facsimile signature or a signature in
a “.pdf” format data file.



(c) Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.



(d) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the
validity or
enforceability of the remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.


 


 









 





(e) Entire Agreement. With the exception of the Mutual Nondisclosure Agreement
between the parties dated as of November 18, 2010, this Agreement supersedes all other prior oral
or written agreements between the Investor, the Company, their affiliates and persons acting on
their behalf with respect to the matters discussed herein, and this Agreement, the other
Transaction Documents and the instruments referenced herein contain the entire understanding of the
parties with respect to the matters covered herein and therein and, except as specifically set
forth herein or therein, neither the Company nor the Investor makes any representation, warranty,
covenant or undertaking with respect to such matters. The Company acknowledges and agrees that is
has not relied on, in any manner whatsoever, any representations or statements, written or oral,
other than as expressly set forth in the Transaction Documents.



(f) Notices. Any notices, consents or other communications required or permitted to
be given under the terms of this Agreement must be in writing and will be deemed to have been
delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by facsimile
(provided confirmation of transmission is mechanically or electronically generated and kept on file
by the sending party); or (iii) one Business Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:




If to the Company:




Premier Exhibitions, Inc.

3340 Peachtree Road N.E., Suite 900

Atlanta, GA 30326

Telephone: 404-842-2600

Facsimile: 404-842-2626

Attention: Tina Bingham




With a copy to:




Derek Bork

Thompson Hine LLP

3900 Key Center

127 Public Square

Cleveland, Ohio 44114-1291

Telephone:(216) 566-5800

Facsimile: (216) 566-5527




If to the Investor:




Lincoln Park Capital Fund, LLC

440 North Wells, Suite 620

Chicago, IL 60654

Telephone: 312-822-9300

Facsimile: 312-822-9301

Attention: Josh Scheinfeld/Jonathan Cope


 


 









 






With a copy to:




Greenberg Traurig, LLP

The MetLife Building

200 Park Avenue

New York, NY 10166

Telephone: 212-801-9200

Facsimile: 212-801-6400

Attention: Anthony J. Marsico




If to the Transfer Agent:




American Stock Transfer & Trust Company, LLC

6201 15th Avenue

Brooklyn, NY 11219

Telephone: 718-921-8293

Facsimile: 718-921-8334

Attention: Isaac Kagan and Cindy Armenia



or at such other address and/or facsimile number and/or to the attention of such other person as
the recipient party has specified by written notice given to each other party three (3) Business
Days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine containing the time, date, and recipient facsimile
number or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable
evidence of personal service, receipt by facsimile or receipt from a nationally recognized
overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.



(g) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns. The Company shall not assign
this Agreement or any rights or obligations hereunder without the prior written consent of the
Investor, including by merger or consolidation. The Investor may not assign its rights or
obligations under this Agreement.



(h) No Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.


 


 









 





(i) Publicity. The Investor shall have the right to approve before issuance any press
release, SEC filing or any other public disclosure made by or on behalf of the Company whatsoever
with respect to, in any manner, the Investor, its purchases hereunder or any aspect of this
Agreement or the transactions contemplated hereby; provided, however, that the Company shall be
entitled, without the prior approval of the Investor, to make any press release or other
public disclosure (including any filings with the SEC) with respect to such transactions as is
required by applicable law and regulations so long as the Company and its counsel consult with the
Investor in connection with any such press release or other public disclosure at least one (1)
Business Days prior to its release. The Investor must be provided with a copy thereof at least one
(1) Business Days prior to any release or use by the Company thereof. The Company agrees and
acknowledges that its failure to fully comply with this provision constitutes a material adverse
effect on its ability to perform its obligations under this Agreement. Nothing herein shall
require Company to consult with or obtain the approval of Investor for disclosures which may refer
to or relate to this Agreement made as part of the Company’s normal periodic reports on Form 10-Q
or Form 10-K, filed with the SEC provided that such disclosure is in a form substantially similar
to that previously reviewed and approved by Investor.



(j) Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.



(k) No Financial Advisor, Placement Agent, Broker or Finder. The Company represents
and warrants to the Investor that it has not engaged any financial advisor, placement agent, broker
or finder in connection with the transactions contemplated hereby. The Investor acknowledges that
the Company has disclosed its preexisting relationship with a financial advisor. The Company shall
be responsible for the payment of any fees or commissions, if any, of any financial advisor,
placement agent, broker or finder relating to or arising out of the transactions contemplated
hereby. The Company shall pay, and hold the Investor harmless against, any liability, loss or
expense (including, without limitation, attorneys’ fees and out of pocket expenses) arising in
connection with any such claim.



(l) No Strict Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.



(m) Remedies, Other Obligations, Breaches and Injunctive Relief. The Investor’s
remedies provided in this Agreement shall be cumulative and in addition to all other remedies
available to the Investor under this Agreement, at law or in equity (including a decree of specific
performance and/or other injunctive relief), no remedy of the Investor contained herein shall be
deemed a waiver of compliance with the provisions giving rise to such remedy and nothing herein
shall limit the Investor’s right to pursue actual damages for any failure by the Company to comply
with the terms of this Agreement. The Company acknowledges that a breach by it of its obligations
hereunder may cause irreparable harm to the Investor and that the remedy at law for any such breach
may be inadequate. The Company therefore agrees that, in the event of any such breach or
threatened breach, the Investor shall be entitled, in addition to all other available remedies, to
an injunction restraining any breach, without the necessity of showing economic loss and without
any bond or other security being required.



(n) Failure or Indulgence Not Waiver. No failure or delay in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege.



* * * * *



 


 









 







IN WITNESS WHEREOF, the Investor and the Company have caused this Purchase Agreement to be
duly executed as of the date first written above.



	 	 	 	 	 
	 	THE COMPANY:



PREMIER EXHIBITIONS, INC.

 	 
	 	By:  	/s/ Michael Little
 	 
	 	 	Name:  	Michael Little 	 
	 	 	Title:  	Senior Vice President and CFO 	 



	 	 	 	 	 
	 	BUYER:




LINCOLN PARK CAPITAL FUND, LLC

BY: LINCOLN PARK CAPITAL, LLC

BY: ROCKLEDGE CAPITAL CORPORATION

 	 
	 	By:  	/s/ Josh Scheinfeld
 	 
	 	 	Name:  	Josh Scheinfeld 	 
	 	 	Title:  	President 	 



 


 









 





SCHEDULES




	 	 	 
	Schedule 4(a)

	 	Subsidiaries
	Schedule 4(c)

	 	Capitalization
	Schedule 4(e)

	 	Conflicts
	Schedule 4(f)

	 	Exchange Act Filings
	Schedule 4(g)

	 	Material Changes
	Schedule 4(h)

	 	Litigation
	Schedule 4(k)

	 	Intellectual Property






EXHIBITS




	 	 	 
	Exhibit A

	 	Form of Company Counsel Opinion
	Exhibit B

	 	Form of Officer’s Certificate
	Exhibit C

	 	Form of Resolutions of Board of Directors of the Company
	Exhibit D

	 	Form of Secretary’s Certificate
	Exhibit E

	 	Form of Letter to Transfer Agent






 


 









 







Schedule 4(a) — Subsidiaries




Wholly-owned subsidiaries of Premier Exhibitions, Inc. as of February 28, 2011:



	 	 	 
	Name	 	Jurisdiction of Organization
	R.M.S. Titanic, Inc.

	 	Florida
	R.M.S. Titanic (UK) Ltd.

	 	United Kingdom
	Premier (United Kingdom) Ltd.

	 	United Kingdom
	Exhibitions International, LLC.

	 	Nevada
	Premier Exhibitions International, LLC

	 	Delaware
	Premier Exhibitions Mexico, S. de R.L. de C.V.

	 	Mexico
	Premier Exhibitions NYC, Inc.

	 	Nevada
	Premier Merchandising, LLC

	 	Delaware
	Premier Sports Exhibitions, LLC

	 	Delaware
	Premier Vision, LLC

	 	Delaware
	Premier Exhibitions International Operations B.V.

	 	Netherlands
	PRXI International Holdings C.V.

	 	Netherlands






 


 









 







Schedule 4(c) — Capitalization




	 	 	 	 	 
	Common Stock
	 	65,000,000 shares authorized






Premier Exhibitions, Inc. has only one class of common stock authorized, and no preferred stock
authorized.



The Company is party to a Registration Rights Agreement with Sellers Capital Master Fund, Ltd. and
SAF Capital Management, LLC, pursuant to which the Company has the obligation to register shares
issued to the parties in connection with a financing transaction in 2009. The transaction and
Registration Rights Agreement are described on a Form 8-K filed with the Securities and Exchange
Commission on May 13, 2009.


 


 









 





Schedule 4(e) — No conflicts




None




 


 









 







Schedule 4(f) — Exchange Act Filings




Premier Exhibitions, Inc. received correspondence from the Securities and Exchange Commission dated
November 30, 2010, related to a review of our recent periodic filings. This review has been
completed, and all correspondence between the SEC and the Company are available on EDGAR.



Premier Exhibitions, Inc. also received correspondence from the Securities and Exchange Commission
relate to its registration statement on Form S-3 filed on July 15, 2011. The Company has withdrawn
this registration statement.


 


 









 





Schedule 4(g) — Absence of Certain Changes




None




 


 









 







Schedule 4(h) — Litigation




All material litigation is described in the following excerpt:




Status of Salvor-in-Possession and Interim Salvage Award Proceedings



The Company has been party to a salvage case titled RMS Titanic, Inc. v. The Wrecked and
Abandoned Vessel, et al., in rem for over 15 years. The Company sought to maintain its status as
sole Salvor-in-Possession of the Titanic wreck site and also sought an interim salvage award in the
form of title to the recovered Titanic artifacts or a monetary award.



In June 1994, the U. S. District Court for the Eastern District of Virginia (the “District
Court”) awarded ownership, to our wholly-owned subsidiary RMST of all items then salvaged from the
wreck of the Titanic as well as all items to be salvaged in the future so long as RMST remained
Salvor-in-Possession. However, in two orders, dated September 26, 2001 and October 19, 2001,
respectively, the District Court restricted the sale of artifacts recovered by RMST from the
Titanic wreck site. On April 12, 2002, the U.S. Court of Appeals for the Fourth Circuit (the
“Appellate Court”) affirmed the two orders of the District Court. In its opinion, the Appellate
Court reviewed and declared ambiguous the June 1994 order of the District Court that had awarded
ownership to RMST of the salvaged items. Having found the June 1994 order ambiguous, the Appellate
Court reinterpreted the order to convey only possession of the artifacts with a lien on them, not
title, pending determination of a salvage award. On October 7, 2002, the U.S. Supreme Court denied
RMST’s petition of appeal.



On May 17, 2004, RMST appeared before the District Court for a pre-trial hearing to address
issues in preparation for an interim salvage award trial. At that hearing, RMST confirmed its
intent to retain its Salvor-in-Possession rights in order to exclusively recover and preserve
artifacts from the wreck site of the Titanic. In addition, RMST stated its intent to conduct
another expedition to the wreck site. As a result of that hearing, on July 2, 2004, the District
Court rendered an opinion and order in which it held that it would not recognize a 1993
Proces-Verbal, pursuant to which the government of France granted RMST title to all artifacts
recovered from the wreck site during the 1987 expedition (the “1987 Artifacts”). The court also
held that RMST would not be permitted to present evidence at the interim salvage award trial for
the purpose of arguing that RMST should be awarded title to the Titanic artifacts through the law
of finds.



RMST appealed the July 2, 2004 District Court order to the Appellate Court. On January 31,
2006, the Appellate Court reversed the lower court’s decision to invalidate the 1993 Proces-Verbal,
pursuant to which the government of France granted RMST title to all artifacts recovered from the
wreck site during the 1987 expedition. As a result, the Appellate Court tacitly reconfirmed that
RMST owns the approximately 2,000 artifacts recovered during the 1987 expedition. The Appellate
Court affirmed the lower court’s ruling that RMST will not be permitted to present evidence at the
interim salvage award trial for the purpose of arguing that RMST should be awarded legal title to
the remainder of the Titanic artifacts through the law of finds.



On November 30, 2007, RMST filed a motion with the District Court seeking an interim salvage
award. On March 25, 2008, the court entered an order granting permission to the U.S. to file an
amicus curiae (friend of the court) response regarding RMST’s motion for an interim salvage award.
The U.S. response states that an interim in-specie award (an award of the artifacts instead of a
monetary salvage award) with limitations, made by the court to RMST, could serve as an appropriate
mechanism to satisfy RMST’s motion for a salvage award and to help ensure that the artifacts
recovered by RMST from the wreck of the Titanic are conserved and curated together in an intact
collection that is available to the public for historical review, educational purposes, and
scientific research in perpetuity. On April 15, 2008, the District Court entered an order
requesting us to propose suggested covenants that would be included in an in specie award. The
order also outlines a process for further discussion pertaining to such
covenants should the court decide to issue an in-specie award.


 


 









 





In September 2008, RMST submitted revised covenants and conditions in connection with our
request for an in-specie award for the remaining Titanic artifacts. This submission was made
pursuant to the order issued by the District Court in April 2008. As part of developing the
revised covenants and restrictions, we engaged in consultative discussions with the U.S.
government. On October 14, 2008, the U.S. filed an amicus response to RMST’s proposed revised
covenants, and by leave of the District Court granted on October 31, 2008, RMST in turn filed a
reply brief on November 12, 2008. On November 18, 2008, we attended a status conference at the
District Court. At the conclusion of that hearing, the District Court asked for certain additional
submissions from RMST and the U.S., which were provided.



The District Court held an evidentiary hearing from October 26, 2009 through November 2, 2009
on our motion for a salvage award. On August 12, 2010, the District Court issued an opinion
granting a salvage award to RMST based upon the Company’s work in recovering and conserving over
three thousand artifacts from the wreck of Titanic during its expeditions conducted in 1993, 1994,
1996, 1998, 2000, and 2004 (the “Post 1987 Artifacts”). The Company was awarded 100 percent of the
fair market value of the artifacts, which the District Court set at approximately $110 million. The
District Court reserved the right to determine whether to pay the Company a cash award from
proceeds derived from a judicial sale, or in the alternative, to issue the Company an in-specie
award of title to the artifacts with certain covenants and conditions which would govern their
maintenance and future disposition. The District Court held a status hearing on June 30, 2011, to
receive an update on the 2010 expedition, specifically with regard to the scientific mapping of the
wreck site and coordination with experts in the underwater community.



On August 15, 2011, the District Court granted an in-specie award of title to the artifacts to
RMST for the Post 1987 Artifacts. Title to the Post 1987 Artifacts comes with certain covenants
and conditions drafted and negotiated by the Company and the United States government. These
covenants and conditions govern the maintenance and future disposition of the artifacts. These
covenants and conditions include the following:




	 	•	 	The approximately 2,000 “1987 Artifacts” and the approximately 3,500 “Post 1987
Artifacts” must be maintained as a single collection;

	 
	 	•	 	The combined collections can only be sold together, in their entirety, and any buyer
would be subject to the same conditions applicable to RMST; and

	 
	 	•	 	RMST must comply with provisions that guarantee the long-term protection of all of the
artifacts. These provisions include the creation by RMST of a trust and reserve fund (the
“Trust Account”). The Trust Account will be irrevocably pledged to and held for the
exclusive purpose of providing a performance guarantee for the maintenance and preservation
of the Titanic collection for the public interest. The Company will pay into the Trust
Account a minimum of twenty five thousand dollars ($25 thousand) for each future fiscal
quarter until the corpus of such Trust Account equals five million dollars ($5 million).
Though not required under the covenants and conditions, Company will make additional
payments into the Trust Account as it deems appropriate consistent with its prior
representations to the Court and sound fiscal operations.







Status of International Treaty Concerning the Titanic Wreck



The U.S. Department of State (the “State Department”) and the National Oceanic and Atmospheric
Administration of the U.S. Department of Commerce (“NOAA”) are working together to implement an
international treaty (the “Treaty”) with the governments of the United Kingdom, France and Canada
concerning the Titanic wreck site. If implemented in this country, this treaty could affect the way
the District Court monitors our Salvor-in-Possession rights to the Titanic. These rights include
the exclusive right to recover artifacts from the wreck site, claim possession of and perhaps title
to artifacts recovered
from the site, and display recovered artifacts. Years ago we raised objections to the State
Department regarding the participation of the U.S. in efforts to reach an agreement governing
salvage activities with respect to the Titanic. The proposed Treaty, as drafted, did not recognize
our existing Salvor-in-Possession rights to the Titanic. The United Kingdom signed the Treaty in
November 2003, and the U.S. signed the Treaty in June 2004. For the Treaty to take effect, the U.S.
must enact implementing legislation. As no implementing legislation has been passed, the Treaty
currently has no binding legal effect.


 


 









 





The Company has worked with the U.S. government regarding several draft revisions to the
government’s proposed legislation which would implement the Treaty. For years, the State
Department and NOAA have been working together to implement the Treaty. For nearly as long the
Company has opposed the passage of the implementing legislation out of concerns that it failed to
protect the Company’s interests in the wreck site and failed to insure continued scientific and
historic exploration.



In August, 2011, the State Department and NOAA resubmitted the draft legislation to Congress.
RMST has worked with the U.S. government to develop a number of textual modifications to this
proposed implementing legislation to address the Company’s concerns. RMST intends to propose its
own legislation incorporating these textual modifications. RMST plans to support the passage of
this revised implementing legislation into law. The Company believes that the passage of this
legislation, as modified by RMST, will recognize the Company’s past and future role with regard to
the wreck site.




Other Litigation



The Company is also from time to time party to collection actions to recover amounts owed by
promoters and other parties, particularly international promoters and partners. In RMS Titanic,
Inc. v. Citywest Productions and H.S.S. Trading as the Mansfield Group, we sued in Dublin, Ireland
to collect approximately $1.3 million owed by a promoter who licensed and presented a Titanic
exhibition in Dublin. We were successful in obtaining judgment against the parties for the full
amount of the claim. During the proceedings, the defendants went into receivership, which is an
insolvency process under the laws of Ireland. We have reserved 100% of the receivable on our
balance sheet for the fiscal year ended February 28, 2011, and are currently seeking to enforce the
judgment in Ireland. Recovery in this case is unlikely.



In April 2011, the Company filed suit in the U.S. District Court for the Northern District of
Georgia against Serge Grimaux and his companies, including Serge Grimaux Presents, Inc. and
9104-5773 Quebec, Inc. The suit alleges that Grimeaux failed to pay over $800 thousand due and
owing the Company under a series of license agreements pursuant to which Grimaux and his entities
presented the Company’s Titanic and human anatomy exhibitions in venues throughout Canada. This
case is in its very early stages. The Company has estimated a bad debt allowance for this
receivable and has adjusted the receivable accordingly. Recovery in this case is uncertain. The
net receivable balances are not material and are reflected in Accounts receivable, net of allowance
for doubtful accounts in the Condensed Consolidated Balance Sheets.



On August 5, 2011, the Company filed suit in the U.S. District Court for the Southern District
of New York against Gunther Von Hagens, and his company, Plastination Company, Inc. The suit
alleges that Von Hagens and Plastination breached a settlement agreement with the Company,
tortiously interfered with the Company’s business, conspired against the Company and engaged in
unfair competition practices. These claims relate to information Von Hagens and Plastination
provided to ABC News and other third-parties about the origin of the human anatomy specimens
licensed by the Company and used in its human anatomy exhibitions. The Company has sued for
unspecified damages. The case is in its very early stages and recovery is uncertain.



From time to time the Company is or may become involved in other legal proceedings that result
from the operation of its exhibitions and business.


 


 









 






Settled Litigation



On July 30, 2009, Sports Immortals, Inc. and its principals, Joel Platt and Jim Platt
(together, “Sports Immortals”), filed an action against the Company in the Circuit Court of the
Fifteenth Judicial District in Palm Beach County, Florida for claims arising from their license
agreement with the Company under which the Company obtained rights to present sports memorabilia
exhibitions utilizing the Sports Immortals, Inc. collection. The plaintiffs allege that the
Company breached the contract when the Company purported to terminate it in April of 2009, and they
seek fees and stock warrant agreements required under the agreement. The Company filed its answer
and counterclaims on September 7, 2009. Answering the complaint, the Company denied plaintiffs’
allegations and maintained that the Sports Immortals, Inc. license agreement was properly
terminated. The Company counterclaimed against the plaintiffs for breach of contract, fraudulent
inducement and misrepresentation, breach of the covenant of good faith and fair dealing, and
violation of Florida’s deceptive and unfair practices act. On August 16, 2011, the Company and
Sports Immortals entered into a Settlement and Release Agreement (the “Agreement”). In exchange
for full settlement and release of all claims of Sports Immortals, pursuant to the Agreement the
Company agreed to pay $475 thousand currently, $475 thousand on the first anniversary of
settlement, and to exchange certain warrants previously issued to Jim Platt and Joel Platt for
warrants with an exercise price set at the market price on the date of settlement of $1.82. An
expense of $6 thousand for the exchange of these warrants is included in General and administrative
expenses on the Condensed Consolidated Statements of Operations. In fiscal 2010, the Company
accrued $167 thousand as an estimate of the cost to settle this litigation. An additional expense
of $783 thousand is included in Litigation Settlement on the Condensed Consolidated Statements of
Operations for the three and six months ended August 31, 2011. The $950 thousand settlement
payable is reflected in Accounts payable and accrued liabilities on the Condensed Consolidated
Balance Sheets. The first installment of the settlement agreement of $475 thousand was paid on
September 7, 2011.




Proposed Legislation and Government Inquiries



On May 23, 2008, the Company entered into an Assurance of Discontinuance (the “Assurance”)
with the Attorney General of the State of New York. The Assurance resolves the inquiry initiated
by the Attorney General’s Office regarding our New York City exhibition, “Bodies...The Exhibition.”
Subject to the provisions of the Assurance, the Company has continued to operate the exhibition in
New York City. Although most of its requirements under the Assurance have now been concluded, the
Company will continue to post certain disclosures regarding the sourcing of the specimens in the
exhibition as long as that exhibition operates in New York City. The Company has voluntarily agreed
to similar disclosures with the states of Washington, Missouri, and Oklahoma.



Legislatures in a few states have considered legislation or passed bills that would restrict
our ability to present human anatomy exhibitions in their states, such as by banning human anatomy
exhibitions, requiring a permit to present such an exhibition, or imposing restrictions on how or
where such exhibitions could be presented. The Company cannot predict whether any such legislation
will be adopted or, if adopted, how such legislation might affect its ability to conduct human
anatomy exhibitions. Additional states could introduce similar legislation in the future. Any such
legislation could prevent or impose restrictions on the Company’s ability to present our human
anatomy exhibitions in the applicable states.



From time to time, the Company has or may receive requests and inquiries from governmental
entities which result from the operation of our exhibitions and business. As a matter of policy,
the Company will cooperate with any such inquiries.


 


 









 






Revenue Examinations



The Internal Revenue Service (“IRS”) is currently conducting an examination of the Company’s
federal
tax return for the fiscal year ended February 28, 2010. In addition to the review currently
in process by the IRS, the Company is, at times, under review by various state revenue authorities.



The Company believes that adequate provisions for resolution of all contingencies, claims and
pending litigation have been made for probable losses and that the ultimate outcome of these
actions will not have a material adverse effect on the Company’s financial condition.


 


 









 





Schedule 4(k) — Intellectual Property Rights




None




 


 









 







EXHIBIT A




FORM OF COMPANY COUNSEL OPINIONS




SECURITIES COUNSEL OPINIONS




1. The Transaction Documents to which the Company is a party are enforceable against the
Company in accordance with their terms except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or similar laws relating to, or affecting creditor’s rights and remedies or other reasonable
exceptions to be set forth in such opinion.



2. The execution, delivery and performance by the Company of the Transaction Documents, the
consummation by the Company of the transactions contemplated thereby, including the offering, sale
and issuance of the Commitment Shares and the Purchase Shares in accordance with the terms and
conditions of the Purchase Agreement, and fulfillment and compliance with terms of the Transaction
Documents, does not and shall not: (i) conflict with, constitute a breach of or default (or an
event which, with the giving of notice or lapse of time or both, constitutes or could constitute a
breach or a default), under any material agreement, note, lease, mortgage, deed or other material
instrument to which to our knowledge the Company is a party or by which the Company or any of its
assets are bound, (ii) result in any violation of any statute, law, rule or regulation applicable
to the Company, or (iii) to our knowledge, violate any order, writ, injunction or decree applicable
to the Company or any of its subsidiaries.



3. To our knowledge, the execution and delivery of the Registration Rights Agreement do not,
and the performance by the Company of its obligations thereunder shall not, give rise to any rights
of any other person for the registration under the Securities Act of any shares of Common Stock or
other securities of the Company which have not been waived.



4. Except as set forth on Schedule 4(c) of the Purchase Agreement, to our knowledge, there are
no outstanding shares of capital stock or other securities convertible into or exchangeable or
exercisable for shares of the capital stock of the Company.



5. Other than that which has been obtained and completed prior to the date hereof, no
authorization, approval, consent, filing or other order of any federal or state governmental body,
regulatory agency, or stock exchange or market, or any court, or, to our knowledge, any third party
is required to be obtained by the Company to enter into and perform its obligations under the
Transaction Documents or for the Company to issue and sell the Purchase Shares as contemplated by
the Transaction Documents.



6. The Common Stock is registered pursuant to Section 12(g) of the Exchange
Act. To our knowledge, since one year preceding the date of the Purchase Agreement, the
Company has been in compliance with the reporting requirements of the Exchange Act applicable to
it. To our knowledge, and except as stated in Schedule 4(f), since one year preceding the date of
the Purchase Agreement, the Company has not received any written notice from the Principal Market
stating that the Company has not been in compliance with any of the rules and regulations
(including the requirements for continued listing) of the Principal Market.


 


 









 





7. We further advise you that to our knowledge, except as disclosed on Schedule 4(h) in the
Purchase Agreement, there is no action, suit, proceeding, inquiry or investigation before or by any
court, public board or body, any governmental agency, any stock exchange or market, or
self-regulatory organization, which has been threatened in writing or which is currently pending
against the Company, any of its subsidiaries, any officers or directors of the Company (in their
capacities as such) or any of its subsidiaries or any of the properties of the Company or any of
its subsidiaries.



8. We have participated in the preparation of the Registration Statement (SEC File #                    )
covering the sale of the Purchase Shares and the Commitment Shares including the prospectus dated
                    , contained therein and in conferences with officers and other representatives of the
Company (including the Company’s independent auditors) during which the contents of the
Registration Statement and related matters were discussed and reviewed and, although we are not
passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, on the basis of the information that was
developed in the course of the performance of the services referred to above, considered in the
light of our understanding of the applicable law, nothing came to our attention that caused us to
believe that the Registration Statement (other than the financial statements and schedules and the
other financial and statistical data included therein, as to which we express no belief), as of
their dates, contained any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.



FLORIDA COUNSEL OPINIONS




1. The Company is a corporation existing and in good standing under the laws of the State of
Florida.



2. The Company has the corporate power to execute and deliver, and perform its obligations
under, each Transaction Document to which it is a party. The Company has the corporate power to
conduct its business as, to the best of our knowledge, it is now conducted, and to own and use the
properties owned and used by it.



3. The execution, delivery and performance by the Company of the Transaction Documents to
which it is a party have been duly authorized by all necessary corporate action on the part of the
Company. The execution and delivery of the Transaction Documents by the Company, the performance
of the obligations of the Company thereunder and the consummation by it of the transactions
contemplated therein have been duly authorized and approved by the Company’s Board of Directors and
no further consent, approval or authorization of the Company, its Board of Directors or its
stockholders is required. The Transaction Documents to which the Company is a party have been duly
executed and delivered by the Company and are the valid and binding obligations of the Company.



4. The execution, delivery and performance by the Company of the Transaction Documents, the
consummation by the Company of the transactions contemplated thereby, including the offering, sale
and issuance of the Commitment Shares and the Purchase Shares in accordance with the terms and
conditions of the Purchase Agreement, and fulfillment and
compliance with terms of the Transaction Documents, does not and shall not: (i) conflict with,
constitute a breach of or default (or an event which, with the giving of notice or lapse of time or
both, constitutes or could constitute a breach or a default) under the Certificate of Incorporation
or the Bylaws of the Company or (ii) result in any violation of any statute, law, rule or
regulation applicable to the Company under Florida law.


 


 









 





5. The issuance of the Purchase Shares and Commitment Shares pursuant to the terms and
conditions of the Transaction Documents has been duly authorized. [                    ] shares of Common
Stock have been properly reserved for issuance under the Purchase Agreement. When issued and paid
for in accordance with the Purchase Agreement, the Purchase Shares shall be validly issued, fully
paid and non-assessable, to our knowledge, free of all taxes, liens, charges, restrictions, rights
of first refusal and preemptive rights that may arise under Florida law. [                    ] shares of
Common Stock have been properly reserved for issuance as Commitment Shares under the Purchase
Agreement. When issued in accordance with the Purchase Agreement, the Commitment Shares shall be
validly issued, fully paid and non-assessable, to our knowledge, free of all taxes, liens, charges,
restrictions, rights of first refusal and preemptive rights that may arise under Florida law.



6. As of the date hereof, the authorized capital stock of the Company consists of [                    ]
shares of common stock, $.0001 value, of which to our knowledge [                    ] shares are issued and
outstanding.



7. Other than that which has been obtained and completed prior to the date hereof, no
authorization, approval, consent, filing or other order of any governmental body, regulatory agency
or any court is required to be obtained by the Company under Florida law to enter into and perform
its obligations under the Transaction Documents or for the Company to issue and sell the Purchase
Shares as contemplated by the Transaction Documents.



 


 









 







EXHIBIT B




FORM OF OFFICER’S CERTIFICATE




This Officer’s Certificate (“Certificate”) is being delivered pursuant to Section 8(e) of that
certain Purchase Agreement dated as of                     , (“Purchase Agreement”), by and between PREMIER
EXHIBITIONS, INC., a Florida corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC (the
“Investor”). Terms used herein and not otherwise defined shall have the meanings ascribed to them
in the Purchase Agreement.



The undersigned,                     ,                      of the Company, hereby certifies, on behalf of
the Company and not in his individual capacity, as follows:




1. I am the                      of the Company and make the statements contained in this
Certificate;




2. The representations and warranties of the Company are true and correct in all
material respects (except to the extent that any of such representations and warranties is
already qualified as to materiality in Section 4 of the Purchase Agreement, in which case,
such representations and warranties are true and correct without further qualification) as
of the date when made and as of the Commencement Date as though made at that time (except
for representations and warranties that speak as of a specific date);




3. The Company has performed, satisfied and complied in all material respects with
covenants, agreements and conditions required by the Transaction Documents to be performed,
satisfied or complied with by the Company at or prior to the Commencement Date.




4. The Company has not taken any steps, and does not currently expect to take any
steps, to seek protection pursuant to any Bankruptcy Law nor does the Company or any of its
Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is
generally able to pay its debts as they become due.




IN WITNESS WHEREOF, I have hereunder signed my name on this
 _____ 
day of                     .



	 	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






The undersigned as Secretary of PREMIER EXHIBITIONS, INC., a Florida corporation, hereby
certifies, on behalf of the Company and not in his individual capacity, that                      is the
duly elected, appointed, qualified and acting                      of                      and that the signature
appearing above is his genuine signature.



	 	 	 	 	 
	 

	 	 

Secretary
	 	 





 


 









 





EXHIBIT C




FORM OF COMPANY RESOLUTIONS

FOR SIGNING PURCHASE AGREEMENT




WHEREAS, there has been presented to the Board of Directors of the Corporation a draft of the
Purchase Agreement (the “Purchase Agreement”) by and between the Corporation and Lincoln Park
Capital Fund, LLC (“Lincoln Park”), providing for the purchase by Lincoln Park of up to Ten Million
Dollars ($10,000,000) of the Corporation’s common stock, $.0001 par value per share (the “Common
Stock”); and



WHEREAS, after consideration and review of the Purchase Agreement, the documents attached
thereto and other factors deemed relevant by the Board of Directors, the Board of Directors has
determined that it is advisable and in the best interests of the Corporation to engage in the
transactions contemplated by the Purchase Agreement, including, but not limited to, the sale of up
to 5,000,000 shares of Common Stock to Lincoln Park (the “Purchase Shares”).



Transaction Documents




NOW, THEREFORE, BE IT RESOLVED, that the transactions described in the Purchase Agreement are
hereby approved and each of Christopher Davino and Robert Brandon (the “Authorized Officers”) are
severally authorized to execute and deliver the Purchase Agreement on behalf of the Company, and
any other agreements or documents contemplated thereby including, without limitation, a
registration rights agreement (the “Registration Rights Agreement”) providing for the registration
of the shares of the Company’s Common Stock issuable in respect of the Purchase Agreement on behalf
of the Corporation, with such amendments, changes, additions and deletions as the Authorized
Officers may deem to be appropriate and approve on behalf of, the Corporation, such approval to be
conclusively evidenced by the signature of an Authorized Officer thereon; and



FURTHER RESOLVED, that the terms and provisions of the Registration Rights Agreement by and
among the Corporation and Lincoln Park, a draft of which has been provided to the Board, are hereby
approved and the Authorized Officers are authorized to execute and deliver the Registration Rights
Agreement on behalf of the Company, with such amendments, changes, additions and deletions as the
Authorized Officer may deem appropriate and approve on behalf of, the Corporation, such approval to
be conclusively evidenced by the signature of an Authorized Officer thereon; and



FURTHER RESOLVED, that the terms and provisions of the Form of Irrevocable Transfer Agent
Instructions (the “Instructions”), a draft of which has been provided to the Board, are hereby
approved and the Authorized Officers are authorized to execute and deliver the Instructions on
behalf of the Company, with such amendments, changes, additions and deletions as the Authorized
Officers may deem appropriate and approve on behalf of, the Corporation, such approval to be
conclusively evidenced by the signature of an Authorized Officer thereon; and


 


 









 





Issuance of Common Stock




FURTHER RESOLVED, that the Corporation is hereby authorized to issue to Lincoln Park up to
5,000,000 shares of Common Stock as the Purchase Shares and that, upon issuance of the Purchase
Shares pursuant to the Purchase Agreement, the Purchase Shares will be duly authorized, validly
issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof;
and



FURTHER RESOLVED, that the Corporation shall initially reserve 5,000,000 shares of Common
Stock for issuance as Purchase Shares under the Purchase Agreement; and



Approval of Actions




FURTHER RESOLVED, that, without limiting the foregoing, the Authorized Officers are, and each
of them hereby is, authorized and directed to proceed on behalf of the Corporation and to take all
such steps as deemed necessary or appropriate, with the advice and assistance of counsel, to cause
the Corporation to consummate the agreements referred to herein and to perform its obligations
under such agreements; and



FURTHER RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized,
empowered and directed on behalf of and in the name of the Corporation, to take or cause to be
taken all such further actions and to execute and deliver or cause to be executed and delivered all
such further agreements, amendments, documents, certificates, reports, schedules, applications,
notices, letters and undertakings and to incur and pay all such fees and expenses as in their
judgment shall be necessary, proper or desirable to carry into effect the purpose and intent of any
and all of the foregoing resolutions, and that all actions heretofore taken by any officer or
director of the Corporation in connection with the transactions contemplated by the agreements
described herein are hereby approved, ratified and confirmed in all respects.



 


 









 







EXHIBIT D




FORM OF SECRETARY’S CERTIFICATE




This Secretary’s Certificate (“Certificate”) is being delivered pursuant to Section 7(k) of
that certain Purchase Agreement dated as of                     , (“Purchase Agreement”), by and between
PREMIER EXHIBITIONS, INC., a Florida corporation (the “Company”) and LINCOLN PARK CAPITAL FUND, LLC
(the “Investor”), pursuant to which the Company may sell to the Investor up to Ten Million Dollars
($10,000,000) of the Company’s Common Stock, $.0001 par value per share (the “Common Stock”).
Terms used herein and not otherwise defined shall have the meanings ascribed to them in the
Purchase Agreement.



The undersigned,                     , Secretary of the Company, hereby certifies, on behalf of the
Company and not in his individual capacity, as follows:




1. I am the Secretary of the Company and make the statements contained in this
Secretary’s Certificate.




2. Attached hereto as Exhibit A and Exhibit B are true, correct and
complete copies of the Company’s bylaws (“Bylaws”) and Certificate of Incorporation
(“Articles”), in each case, as amended through the date hereof, and no action has been taken
by the Company, its directors, officers or shareholders, in contemplation of the filing of
any further amendment relating to or affecting the Bylaws or Articles.




3. Attached hereto as Exhibit C are true, correct and complete copies of the
resolutions duly adopted by the Board of Directors of the Company on                     , at which
a quorum was present and acting throughout. Such resolutions have not been amended,
modified or rescinded and remain in full force and effect and such resolutions are the only
resolutions adopted by the Company’s Board of Directors, or any committee thereof, or the
shareholders of the Company relating to or affecting (i) the entering into and performance
of the Purchase Agreement, or the issuance, offering and sale of the Purchase Shares and the
Commitment Shares and (ii) and the performance of the Company of its obligation under the
Transaction Documents as contemplated therein.




4. As of the date hereof, the authorized, issued and reserved capital stock of the
Company is as set forth on Exhibit D hereto.




IN WITNESS WHEREOF, I have hereunder signed my name on this
 _____ 
day of                     .



	 	 	 	 	 
	 

	 	 

Secretary
	 	 






The undersigned as
 _____ 
of PREMIER EXHIBITIONS, INC., a Florida corporation, hereby
certifies, on behalf of the Company and not in his individual capacity, that
 _____ 
is the
duly elected, appointed, qualified and acting Secretary of
 _____, and that the signature
appearing above is his genuine signature.