formsc13da.htm

0001140361-09-016070.txt : 20090708 0001140361-09-016070.hdr.sgml : 20090708 20090707205040 ACCESSION NUMBER: 0001140361-09-016070 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20090708 DATE AS OF CHANGE: 20090707 GROUP MEMBERS: MARK A. SELLERS GROUP MEMBERS: SELLERS CAPITAL MASTER FUND, LTD. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PREMIER EXHIBITIONS, INC. CENTRAL INDEX KEY: 0000796764 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-AMUSEMENT & RECREATION SERVICES [7900] IRS NUMBER: 201424922 STATE OF INCORPORATION: FL FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-51499 FILM NUMBER: 09934116 BUSINESS ADDRESS: STREET 1: 3340 PEACHTREE ROAD NE STREET 2: SUITE 2250 CITY: ATLANTA STATE: GA ZIP: 30326 BUSINESS PHONE: 404-842-2600 MAIL ADDRESS: STREET 1: 3340 PEACHTREE ROAD NE STREET 2: SUITE 2250 CITY: ATLANTA STATE: GA ZIP: 30326 FORMER COMPANY: FORMER CONFORMED NAME: RMS TITANIC INC DATE OF NAME CHANGE: 20010404 FORMER COMPANY: FORMER CONFORMED NAME: FIRST RESPONSE MEDICAL INC /FL/ DATE OF NAME CHANGE: 20010404 FORMER COMPANY: FORMER CONFORMED NAME: CIP HOLDINGS INC DATE OF NAME CHANGE: 19930302 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Sellers Capital LLC CENTRAL INDEX KEY: 0001412234 IRS NUMBER: 203036090 STATE OF INCORPORATION: IL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 311 S WACKER DR STREET 2: STE 925 CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 312-775-1300 MAIL ADDRESS: STREET 1: 311 S WACKER DR STREET 2: STE 925 CITY: CHICAGO STATE: IL ZIP: 60606 SC 13D/A 1 formsc13da.htm PREMIER EXHIBITIONS INC SC 13D A 6-15-2009 formsc13da.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934

(Amendment No. 13)*

Premier Exhibitions, Inc.

(Name of Issuer)

Common Stock

(Title of Class of Securities)

74051E102

(CUSIP Number)

Samuel S. Weiser

Sellers Capital LLC

311 S Wacker Dr., Ste 925

Chicago, IL 60606

(312) 775-1300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

June 15, 2009

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 74051E102

Page 2 of 10

1.	Names of Reporting Persons Sellers Capital LLC

2.	Check the Appropriate Box if a Member of a Group (See Instructions) See footnote below.*
	(a)	x
	(b)	o

3.	SEC Use Only

4.	Source of Funds (See Instructions) AF

5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

6.	Citizenship or Place of Organization Illinois

Number of	7.	Sole Voting Power 0
Shares
Beneficially	8.	Shared Voting Power 4,928,399
Owned
By Each	9.	Sole Dispositive Power 0
Reporting
Person With	10.	Shared Dispositive Power 4,928,399

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 4,928,399

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 16.3% as of July 7, 2009 (based on 30,198,966 shares of Common Stock outstanding, per Form 10K/A dated June 29, 2009).

	14.	Type of Reporting Person (See Instructions) IA/OO

* Mark A. Sellers is the managing member of Sellers Capital LLC, which is the investment manager to and general partner of Sellers Capital Master Fund, Ltd. and thus the Reporting Persons may be considered a group within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended. Each of the Reporting Persons disclaims beneficial ownership of the securities reported herein except to the extent of its pecuniary interest therein.

CUSIP No. 74051E102

Page 3 of 10

1.	Names of Reporting Persons Sellers Capital Master Fund, Ltd.

2.	Check the Appropriate Box if a Member of a Group (See Instructions) See footnote below.*
	(a)	x
	(b)	o

3.	SEC Use Only

4.	Source of Funds (See Instructions) WC

5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

6.	Citizenship or Place of Organization Cayman Islands

Number of	7.	Sole Voting Power 0
Shares
Beneficially	8.	Shared Voting Power 4,928,399
Owned
By Each	9.	Sole Dispositive Power 0
Reporting
Person With	10.	Shared Dispositive Power 4,928,399

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 4,928,399

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 16.3% as of July 7, 2009 (based on 30,198,966 shares of Common Stock outstanding, per Form 10K/A dated June 29, 2009).

	14.	Type of Reporting Person (See Instructions) IV

CUSIP No. 74051E102

Page 4 of 10

1.	Names of Reporting Persons Mark A. Sellers

2.	Check the Appropriate Box if a Member of a Group (See Instructions) See footnote below.*
	(a)	x
	(b)	o

3.	SEC Use Only

4.	Source of Funds (See Instructions) AF

5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

6.	Citizenship or Place of Organization U.S. Citizen

Number of	7.	Sole Voting Power 0
Shares
Beneficially	8.	Shared Voting Power 4,928,399
Owned
By Each	9.	Sole Dispositive Power 0
Reporting
Person With	10.	Shared Dispositive Power 4,928,399

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 4,928,399

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 16.3% as of July 7, 2009 (based on 30,198,966 shares of Common Stock outstanding, per Form 10K/A dated June 29, 2009).

	14.	Type of Reporting Person (See Instructions) IN/HC

CUSIP No. 74051E102

Page 5 of 10

This Amended Statement of Beneficial Ownership on Schedule 13D (“Amendment 13”) amends the Amended Statement of Beneficial Ownership on Schedule 13D filed on May 12, 2009 (“Amendment 12”), and all previous Statements of Beneficial Ownership on Schedule 13D filed in connection with the parties and matters referenced herein, with respect to the common stock (the “Common Stock”) of Premier Exhibitions, Inc., a Florida corporation (the “Issuer”). Any capitalized terms used and not defined in this Amendment 13 shall have the meanings set forth in Amendment 12. Only those items that are hereby reported are amended; all other items remain unchanged.

Item 3.

Source and Amount of Funds or Other Consideration

The aggregate consideration paid to the Issuer pursuant to the transactions described in Item 4 of this Schedule 13D was approximately $11,550,000, which came from the working capital of SCMF. The aggregate consideration paid for the shares of Common Stock described in this Schedule 13D came from the working capital of SCMF.

Item 4.

Purpose of Transaction

As described in greater detail in Amendment 12, on May 6, 2009, SCMF and the Issuer entered into a Convertible Note Purchase Agreement (the “Note Purchase Agreement”) pursuant to which SCMF agreed to purchase and the Issuer agreed to sell convertible notes with a total principal amount of $12 million. The Note Purchase Agreement called for SCMF to purchase a Convertible Note (the “Note”), in the principal amount of $6 million, for an aggregate purchase price (the “Purchase Price”) equal to the Note’s principal amount. The closing date (the “Closing Date”) for the purchase of the Note was May 6, 2009. The Note Purchase Agreement also called for SCMF to purchase, on or prior to June 15, 2009, a convertible note or convertible notes, on terms substantially identical to the terms of the Note (each an “Other Note” and, collectively, the “Other Notes”), in the principal amount of $6 million, for an aggregate purchase price equal to the principal amount; however, to the extent investors (other than SCMF) mutually satisfactory to the Issuer and SCMF (each an “Other Investor” and, collectively, “Other Investors”) were to purchase Other Notes, SCMF’s obligation to purchase Other Notes would be reduced by the principal amount purchased by such Other Investors. A copy of the Note Purchase Agreement was included in Exhibit 99.2 of Amendment 12 and is incorporated by reference herein.

On June 15, 2009, SCMF purchased an Other Note with a total principal amount of $5,550,000 and an Other Investor purchased an Other Note with a total principal amount of $450,000.

SCMF entered into the Note Purchase Agreement in order to provide financing to the Issuer. If the stockholders of the Issuer approve the issuance of shares upon conversion of the Note or the Other Notes, as described in greater detail in Amendment 12, the filing persons also will increase their beneficial ownership of the shares of the Issuer’s Common Stock.

As described in greater detail in Amendment 12, the Note and the Other Notes are convertible, subject to certain conditions, including certain Shareholder Approval, at a conversion price (the “Conversion Price”) of $0.75 per share, into the number of fully paid and non-assessable shares of Common Stock equal to the quotient of (x) the principal amount of the Note or the Other Note being converted plus all accrued and unpaid interest with respect to such principal, divided by (y) the Conversion Price. A copy of the Note was included in Exhibit 99.2 of Amendment 12 and is incorporated by reference herein. A copy of the Other Note purchased by SCMF is included as Exhibit 99.3 of this Amended Schedule 13D and incorporated by reference herein.

CUSIP No. 74051E102

Page 6 of 10

As described in greater detail in Amendment 12, on May 6, 2009, the Issuer also agreed that in the event that the Issuer elects to prepay any portion of the Note or the Other Notes within a stated “Pre-Annual Meeting Prepayment Period” (i.e., any time up to and including the fifth business day preceding the Issuer’s Annual Meeting), then such election would trigger the effectiveness of a warrant (the “Warrant”), forms of which were delivered to SCMF on the dates of the Note and the Other Note for the purchase of that number of shares of Common Stock (“Warrant Shares”) equal to seven percent (7.0%) of the total number of shares of Common Stock into which the Note and the Other Note, as of the date of such prepayment, are convertible. A copy of the Warrant relating to the Note was included in Exhibit 99.2 of Amendment 12 and is incorporated by reference herein. A copy of the Warrant relating to the Other Note purchased by SCMF is included as Exhibit 99.4 of this Amended Schedule 13D and incorporated by reference herein.

As described in greater detail in Amendment 12, on May 6, 2009, SCMF and the Issuer also agreed to enter into a registration rights agreement (the “Registration Rights Agreement”), no later than the Closing Date, pursuant to which the Issuer agrees to register with the Securities and Exchange Commission, in accordance with the applicable provisions of the Securities Act of 1933, as amended, and the rules thereunder, the shares of Common Stock into which the Note and the Other Notes may be convertible and the shares of Common Stock into which the Warrants, if issued, will be exercisable, and any additional shares of Common Stock acquired by SCMF by way of a dividend, stock split, recapitalization dividend, stock split, plan of recapitalization, reorganization, merger, sale of assets or otherwise (“Registrable Securities”). A copy of the Registration Rights Agreement was included in Exhibit 99.2 of Amendment 12 and is incorporated by reference herein.

On June 15, 2009, in connection with the purchases of the Other Notes, the Issuer, SCMF and the Other Investor entered into a Joinder Agreement pursuant to which the Other Investor became a party to, and agreed to be bound by and subject to all of the covenants, terms and conditions of, the Note Purchase Agreement and the Registration Rights Agreement. A copy of the Joinder Agreement is included as Exhibit 99.5 of this Amended Schedule 13D and incorporated by reference herein.

The foregoing descriptions are not intended to be complete and are qualified in their entirety by reference to the copies of the Convertible Note Purchase Agreement dated May 6, 2009, and exhibits thereto, filed as Exhibit 99.2 to Amendment 12 and incorporated by reference herein, and to the Other Note purchased by SCMF, the Warrant relating to the Other Note purchased by SCMF and the Joinder Agreement dated June 15, 2009, filed herewith as Exhibits 99.3, 99.4 and 99.5 and incorporated by reference herein.

Although the Reporting Persons have no present intention of acquiring any additional securities of the Issuer, other than as reported herein, the Reporting Persons intend to regularly review their investment in the Issuer and, based on such review and such other factors including, but not limited to, their evaluation of the Issuer’s business, prospects and financial condition, the market price for the Issuer’s securities, other opportunities available to them and general market, industry and economic conditions, the Reporting Persons, and/or other persons affiliated with them, may, and reserve the right to, change their intentions, acquire additional securities of the Issuer, or sell some or all of their shares of Common Stock, on the open market, in privately negotiated transactions or otherwise, or engage in other transactions with respect to the Issuer and/or the securities of the Issuer. The Reporting Persons may formulate plans or proposals for, and may from time to time explore, or make proposals relating to, transactions or actions which relate to or would result in any of the matters specified in clauses (a) through (j) of Item 4 of Schedule 13D.

CUSIP No. 74051E102

Page 7 of 10

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

The matters set forth in Items 3 and 4 are incorporated in this Item 6 by reference as if fully set forth herein. Except for the matters discussed herein, there are no contracts, arrangements, understandings or relationships with respect to securities of the Issuer.

Copies of the agreements and related documents described in Item 4 are filed as Exhibit 99.2 to Amendment 12 filed May 12, 2009, except for the Other Note purchased by SCMF, which is attached hereto as Exhibit 99.3, the Warrant relating to the Other Note purchased by SCMF, which is attached hereto as Exhibit 99.4 and the Joinder Agreement dated June 15, 2009, which is attached hereto as Exhibit 99.5.

Item 7.

Material to be Filed as Exhibits

Exhibit 99.1: Amended Joint Filing Agreement, dated as of July 7, 2009, among Sellers Capital LLC, Sellers Capital Master Fund, Ltd. and Mark A. Sellers.

Exhibit 99.2: Convertible Note Purchase Agreement dated May 6, 2009, between Premier Exhibitions, Inc. and Sellers Capital Master Fund, Ltd., and exhibits thereto (including Convertible Note, Warrant to Purchase Common Stock and Registration Rights Agreement) (incorporated herein by reference to Exhibit 99.2 to the Schedule 13D (Amendment 12) filed with the SEC on May 12, 2009).

Exhibit 99.3: Convertible Note dated June 15, 2009.

Exhibit 99.4: Warrant Relating to Convertible Note dated June 15, 2009.

Exhibit 99.5: Joinder Agreement dated June 15, 2009.

CUSIP No. 74051E102

Page 8 of 10

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated this 7th day of July, 2009.

Sellers Capital LLC

By: /s/ Samuel S. Weiser

Name: Samuel S. Weiser

Title: Chief Operating Officer

Sellers Capital Master Fund, Ltd.

By: /s/ Samuel S. Weiser

Name: Samuel S. Weiser

Title: Chief Operating Officer, Sellers Capital LLC, Investment Manager

/s/ Mark A. Sellers

Mark A. Sellers

CUSIP No. 74051E102

EXHIBIT 99.1 TO SCHEDULE 13D/A

July 7, 2009

In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, SELLERS CAPITAL LLC, SELLERS CAPITAL MASTER FUND, LTD. and MARK A. SELLERS each hereby agree to the joint filing of this statement on Schedule 13D (including any and all amendments hereto). In addition, each party to this Agreement expressly authorizes each other party to this Agreement to file on its behalf any and all amendments to such Statement on Schedule 13D. A copy of this Agreement shall be attached as an exhibit to the Statement on Schedule 13D filed on behalf of each of the parties hereto, to which this Agreement relates.

This Agreement may be executed in multiple counterparts, each of which shall constitute an original, one and the same instrument.

SELLERS CAPITAL LLC

By: /s/ Samuel S. Weiser

Name: Samuel S. Weiser

Title: Chief Operating Officer

SELLERS CAPITAL MASTER FUND, LTD.

By: /s/ Samuel S. Weiser

Name: Samuel S. Weiser

Title: Chief Operating Officer, Sellers Capital LLC, Investment Manager

/s/ Mark A. Sellers

Mark A. Sellers

EX-99.3 2 ex99_3.htm EXHIBIT 99.3 ex99_3.htm

Exhibit 99.3

EXECUTION COPY

NEITHER THIS NOTE NOR THE COMMON STOCK INTO WHICH IT MAY BE CONVERTED HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND NEITHER MAY BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SO REGISTERED OR UNLESS SOLD PURSUANT TO AN EXEMPTION THEREFROM.

CONVERTIBLE NOTE

$5,550,000

June 15, 2009

FOR VALUE RECEIVED, the undersigned, Premier Exhibitions, Inc. (the "Company"), a corporation organized and existing under the laws of the State of Florida, hereby promises to pay to Sellers Capital Master Fund, Ltd., an exempted company organized under the laws of the Cayman Islands, or its permitted assigns (the "Holder"), the principal sum of Five Million Five Hundred Fifty Thousand Dollars ($5,550,000), in accordance with the terms and conditions hereinafter set forth. Capitalized terms appearing herein but not defined herein have the meanings ascribed to such terms in the Note Purchase Agreement (defined below).

By its acceptance hereof, the Holder covenants and agrees that this Note is subject to the following terms and conditions:

1. Definitions. As used in this Agreement, the following terms have the meanings set forth below:

"Annual Meeting" shall mean the Company's annual meeting of shareholders required to be called and held by it pursuant to the Note Purchase Agreement.

"Applicable Market" shall mean the NASDAQ Global Market or, if the Company's Common Stock is not listed for trading on the NASDAQ Global Market at the applicable time, the Over-The-Counter Bulletin Board, if the trading of the Company's Common Stock is qualified for quotation thereon at the applicable time.

"Approval" shall mean the approval of the Company's shareholders (a) by the affirmative vote of the holders of more than 50% of the Company's outstanding shares of Common Stock present and cast on the applicable proposal at the Annual Meeting or other meeting of the Company's shareholders, in any such case at which a quorum is present, or such higher percentage as may be required by applicable law or the listing rules of the NASDAQ Global Market as of the date of such meeting, or (b) by the affirmative vote of the holders of more than 50% of the Company's outstanding shares of Common Stock pursuant to written consents obtained in accordance with applicable law, or such higher percentage as may be required by applicable law or the listing rules of the NASDAQ Global Market as of the date of such consents.

"Business Day" shall mean any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law or executive order to close.

"Company" shall have the meaning set forth in the preamble.

"Conversion Date" shall have the meaning set forth in Section 5(e).

"Conversion Price" shall have the meaning set forth in Section 5(d).

“Event of Default” shall have the meaning set forth in Section 8.

"Holder" shall have the meaning set forth in the preamble.

"Interest Payment Date" shall have the meaning set forth in Section 2(b).

"Interest Rate" shall have the meaning set forth in Section 2(a).

"Maturity Date" shall have the meaning set forth in Section 3.

"Note Purchase Agreement" shall mean the Note Purchase Agreement, dated May 6, 2009, by and between the Company and the Holder, to which SAF Capital Fund LLC joined as a party pursuant to that certain Joinder Agreement, dated as of an even date herewith. The Company has issued this Note to the Holder pursuant to Section 5.06 of the Note Purchase Agreement.

"Notice of Conversion" shall have the meaning set forth in Section 5(e).

"Penalty Rate" shall have the meaning set forth in Section 2(a).

"Person" shall mean any individual, corporation, partnership, firm, limited liability company, joint venture, trust, association, unincorporated organization, group, joint-stock company or other entity.

"Post-Annual Meeting Prepayment Period" shall have the meaning set forth in Section 4(a).

"Pre-Annual Meeting Prepayment Period" shall have the meaning set forth in Section 4(a).

"Prepayment Date" shall have the meaning set forth in Section 4(a).

"Prepayment Notice" shall have the meaning set forth in Section 4(a).

"Proposals" shall mean the following proposals: (i) the issuance to the Holder of the shares of Common Stock of the Company issuable upon conversion of this Note, pursuant to all applicable rules under the NASDAQ Global Market's listing rules, and (ii) an amendment to the Company's certificate of incorporation increasing the number of the Company's authorized shares of Common Stock to an amount not less than necessary to enable the full issuance of the number of the Company's shares of Common Stock that may be issuable upon conversion of this Note.

"Reorganization" shall have the meaning set forth in Section 6(b).

"Security Interest" shall have the meaning set forth in Section 7.

"Shareholder Approval" shall mean the Approval by the Company's shareholders of the Proposals.

"Transaction Documents" shall mean this Note, the Note Purchase Agreement and the schedules and exhibits thereto, the Warrant, the Registration Rights Agreement and any certificate or other document delivered by or on behalf of the Company or the Holder in connection with the Closing, and, commencing at the effectiveness of any agreement or other document that is executed by the Company and the Holder in accordance with Section 7, shall, for the limited purposes of Sections 8(a), 9, 14 and 15, include any such agreement or other document.

"Warrant" shall have the meaning set forth in Section 4(b).

2. Payments of Principal and Interest.

(a) Interest Rate. Interest shall accrue on the outstanding principal amount of this Note (computed on the basis of a 365-day year and actual days elapsed) at the rate of 6.0% per annum (the "Interest Rate"). If the Shareholder Approval is not obtained at the Annual Meeting and either (i) the Holder shall have voted, or caused to be voted, not less than that number of shares of the Company’s Common Stock over which the Holder had, immediately prior to the execution of the Note Purchase Agreement, direct or indirect voting power, in favor of the Proposals or (ii) the Shareholder Approval would not have been obtained at the Annual Meeting regardless of whether Holder had taken the actions set forth in clause (i) above, the Interest Rate shall be increased to 18.0% (the "Penalty Rate"), retroactive to the date of issuance of this Note, with any interest corresponding to prior periods becoming due and payable on the date that is five (5) Business Days after the date of the Annual Meeting. In the event that the Shareholder Approval is obtained at any time within 180 days after the Annual Meeting, the Penalty Rate shall revert to the Interest Rate beginning on the date immediately following the date that such Shareholder Approval is obtained.

(b) Payments. Payments of principal of and interest on this Note shall be made in lawful money of the United States of America by wire transfer of immediately available funds to the bank account specified by the Holder or such other place as the Holder shall have designated by written notice to the Company. Interest shall be payable monthly in arrears on the first Business Day immediately following the end of each calendar month after the issuance of this Note (each such date, an "Interest Payment Date"). In the event of a conversion of this Note prior to the Maturity Date (as hereinafter defined) pursuant to the terms set forth below, all accrued and unpaid interest shall be added to the principal amount being converted as of the date of conversion to determine the amount of securities into which this Note shall be converted.

3. Maturity Date. The full amount of principal then-outstanding and all accrued but unpaid interest hereunder shall be due and payable on May 6, 2012 (the "Maturity Date"). If the Shareholder Approval is not obtained at the Annual Meeting, or within 180 days after the Annual Meeting, and either (i) the Holder shall have voted, or caused to be voted, not less than that number of shares of the Company’s Common Stock over which the Holder had, immediately prior to the execution of the Note Purchase Agreement, direct or indirect voting power, in favor of the Proposals or (ii) the Shareholder Approval would not have been obtained during such period regardless of whether Holder had taken the actions set forth in clause (i) above, then the Maturity Date shall be the 180th day after the date of the Annual Meeting.

4. Prepayment.

(a) Prepayment Periods. The Company may only elect to prepay all or any part of the principal amount of this Note then outstanding and any accrued but unpaid interest at any time or from time to time either (i) on or prior to the fifth (5th) Business Day prior to the date of the Annual Meeting (the "Pre-Annual Meeting Prepayment Period"), subject to Section 4(b), or (ii) on or after the first Business Day after the Annual Meeting (the "Post-Annual Meeting Prepayment Period"), subject to Section 5(b). If the Company elects to prepay all or any part of this Note, it shall provide written notice of such election (a "Prepayment Notice") to the Holder fixing a date for prepayment of such amounts (the "Prepayment Date"), which date shall not be earlier than the fifth (5th) Business Day after the date of the Prepayment Notice (provided that the Company shall have confirmed the Holder’s receipt of the Prepayment Notice on or prior to such date).

(b) Prepayment Fee. Any prepayment by the Company of all or any portion of this Note within the Pre-Annual Meeting Prepayment Period shall trigger the effectiveness of the warrant, in the form attached hereto as Exhibit A (the "Warrant"), delivered to the Holder as of the date hereof, for the purchase of that number of shares of Common Stock of the Company equal to seven percent (7%) of the total number of shares of Common Stock of the Company into which this Note is, on the Prepayment Date, convertible. The Warrant shall have a per share exercise price equal to the closing bid price of the Company’s Common Stock on the Applicable Market immediately preceding the execution of the Note Purchase Agreement and shall expire five (5) years from the date on which the Warrant is effective.

5. Conversion.

(a) Optional Conversions. The Holder may elect to convert all or any portion of the principal amount of this Note then outstanding (plus accrued but unpaid interest thereon) into shares of Common Stock of the Company at any time on or prior to the Maturity Date and on or after the fifth (5th) Business Day after the Annual Meeting, but only if the Shareholder Approval shall have been obtained at the Annual Meeting or thereafter.

(b) Conversion Upon Prepayment. If the Company elects to prepay all or any part of this Note at any time during the Post-Annual Meeting Prepayment Period and at the time of such election the Shareholder Approval has been obtained, the Holder may convert the principal amount of this Note then outstanding (plus accrued but unpaid interest thereon) at any time before the close of business on the last Business Day prior to the Prepayment Date.

(c) Mandatory Conversion. At any time after the Annual Meeting and on or prior to the Maturity Date, the Company may elect to cause the Holder to convert the principal amount then outstanding under this Note (plus accrued but unpaid interest thereon) if (i) the Shareholder Approval has been obtained and (ii) the closing per share sale price of the Company's Common Stock has exceeded $1.00 for a period of five (5) successive trading days, as reported on the Applicable Market.

(d) Conversion Price. In the event of any conversion under this Section 5, the price at which the principal amount of this Note shall be converted into shares of Common Stock of the Company is $0.75 per share, subject to adjustment as set forth herein (the "Conversion Price"). This Note shall be convertible into the number of fully paid and non-assessable shares of Common Stock equal to the quotient of (x) the principal amount of this Note being converted plus all accrued and unpaid interest with respect to such principal, divided by (y) the Conversion Price. No fractional shares of Common Stock shall be issued upon conversion of the Convertible Note. If the conversion would result in the issuance of any fractional share, the Company shall, in lieu of issuing any fractional share, either, at its option, pay the Holder cash equal to the product of such fraction multiplied by the closing price of the Company’s Common Stock on the Applicable Market on the Business Day immediately prior to the Conversion Date or round such fraction of a share up to the nearest whole share.

(e) Conversion Mechanics. In connection with any conversion by the Holder under Section 5(a) or 5(b), the Holder shall (i) complete and sign the notice of conversion in the form attached hereto as Exhibit B setting forth the portion of the outstanding principal amount of this Note being converted ("Notice of Conversion"), (ii) surrender this Note to the Company, and (iii) pay any transfer or similar tax if required. The Company shall, promptly after receipt of the Notice of Conversion and surrender of this Note, issue to the Holder, or its designees, a certificate or certificates evidencing the number of shares of Common Stock of the Company to which it shall be entitled and, in the event that only a portion of this Note is being converted, a new Note in the remaining principal amount. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of receipt of the Notice of Conversion and surrender of this Note to be converted (the "Conversion Date"), and the Person or Persons entitled to receive the shares of Common Stock of the Company issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock as of such time and shall, with respect to such shares, have only those rights of a holder of shares of Common Stock of the Company.

6. Adjustments; Reorganizations.

(a) Adjustment for Stock Splits and Combinations. If the outstanding shares of Common Stock of the Company shall be subdivided into a greater number of shares, or a dividend in Common Stock or other securities of the Company convertible into or exchangeable for Common Stock (in which latter event the number of shares of Common Stock issuable upon the conversion or exchange of such securities shall be deemed to have been distributed) shall be paid in respect to the Common Stock of the Company, the Conversion Price in effect immediately prior to such subdivision or at the record date of such dividend shall, simultaneously with the effectiveness of such subdivision or immediately after the record date of such dividend, be proportionately reduced, and conversely, if outstanding shares of the Common Stock of the Company shall be combined into a smaller number of shares, the Conversion Price in effect immediately prior to such combination shall simultaneously with the effectiveness of such combination, be proportionately increased. Any adjustment to the Conversion Price under this Section 6(a) shall become effective at the close of business on the date the subdivision or combination referred to herein becomes effective.

(b) Reorganizations, Mergers, Consolidations or Reclassifications. In the event of any capital reorganization, any reclassification of the Common Stock of the Company (other than a change in par value), or the consolidation or merger of the Company with or into another Person (each a "Reorganization"), the Holder shall thereafter be entitled to receive, and provision shall be made therefor in any agreement relating to a Reorganization, upon conversion of this Note (or deemed conversion of this Note in the event that the Reorganization is consummated at such time as this Note is not otherwise convertible under the terms hereof), the kind and number of shares of Common Stock or other securities or property (including cash) of the Company, or other corporation resulting from or surviving such Reorganization, to which a holder of the number of shares of the Common Stock of the Company which this Note entitled the holder thereof to convert into immediately prior to such Reorganization would have been entitled to receive with respect to such Reorganization; and in any such case appropriate adjustment shall be made in the application of the provisions herein set forth with respect to the rights and interests thereafter of the Holder of this Note, to the end that the provisions set forth herein (including the specified changes and other adjustments to the Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any shares, other securities or property thereafter receivable upon conversion of this Note. In the event of a Reorganization in which the equity securities of the Company into which this Note is then convertible are exchangeable for or convertible into securities of another issuer, the shares of common stock of which are securities registered under or subject to Section 12 or 15(d) of the Securities Exchange Act of 1934, as amended, any agreement relating to such Reorganization shall provide for the assumption of this Note by such issuer, to the extent not previously converted or redeemed, which Note shall thereafter be convertible into the shares of common stock of such issuer on the basis set forth in this Section 6(b). The provisions of this Section 6(b) shall similarly apply to successive Reorganizations.

(c) Reservation of Stock Issuable Upon Conversion. The Company shall, at all times after the Shareholder Approval has been obtained, reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of this Note, such number of shares of Common Stock as shall from time to time be sufficient to effect a full conversion of this Note, and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding Note, the Company shall promptly take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.

(d) No Impairment. The Company shall not participate in any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action for the purpose of avoiding or seeking to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but shall at all times in good faith use its best efforts in carrying out all such action as may be reasonably necessary or appropriate in order to protect the conversion rights of the Holder against dilution or other impairment.

7. Security Interest. If the Shareholder Approval is not obtained at the Annual Meeting and either (i) the Holder shall have voted, or caused to be voted, not less than that number of shares of the Company’s Common Stock over which the Holder had, immediately prior to the execution of the Note Purchase Agreement, direct or indirect voting power, in favor of the Proposals or (ii) the Shareholder Approval would not have been obtained at the Annual Meeting regardless of whether Holder had taken the actions set forth in clause (i) above:

The principal amount of this Note then outstanding, all accrued but unpaid interest and all other obligations owing by the Company pursuant to this Note and the other Transaction Documents, shall immediately be secured by a first priority security interest in all assets of the Company and the stock of all of its subsidiaries, in all cases, to the extent permitted by any applicable court order, contract, mortgage, credit agreement or other agreement binding upon or applicable to the Company, its subsidiaries or their respective assets (a "Security Interest"). In the event that the Shareholder Approval is obtained at any time within 180 days after the Annual Meeting, any such Security Interest shall terminate on the date immediately following the date that such Shareholder Approval is obtained, and the Holder shall take all actions necessary to cause the termination of any such Security Interest. The Company and the Holder shall promptly enter into customary collateral agreements, including a customary inter-creditor agreement to provide that the Security Interest of the Holder is pari passu with the Security Interest of any other holder of a convertible note sold by the Company pursuant to the Note Purchase Agreement, which are consistent with the term sheet attached hereto as Exhibit C and otherwise reasonably acceptable to the Company and the Holder, granting such Security Interest and providing for the perfection thereof, within 45 days after the date hereof; provided, however, that such agreements shall not become effective unless and until the Company fails to obtain the Shareholder Approval at the Annual Meeting. Subject only to the Security Interests described above, the Company will not grant any security interest or otherwise encumber any assets of the Company or its subsidiaries, including the stock of any such subsidiaries, without the Holder’s prior written consent, which consent may not be unreasonably withheld. If this Note is secured by the Security Interest (whether or not on a pari passu basis), the Company may incur additional unsecured debt without any consent of the Holder.

8. (a) Events of Default. The occurrence of any of the following shall constitute an "Event of Default" under this Note:

(i) Failure to Pay. The Company shall fail to make when due any principal or interest payment or any other payment obligation hereunder and such amount shall remain unpaid for ten (10) Business Days after such date; or

(ii) Voluntary Bankruptcy or Insolvency Proceedings. The Company shall (A) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian for itself or all or substantially all of its property, (B) be unable, or admit in writing its inability, to pay its debts generally as they mature, (C) make a general assignment for the benefit of its creditors, (D) be dissolved or liquidated, (E) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or (F) take any action for the purpose of effecting any of the foregoing; or

(iii) Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian for the Company or all or substantially all of its property, or an involuntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect, shall be commenced and an order for relief entered or such proceeding shall not have been dismissed or discharged within thirty (30) days of commencement; or

(iv) Security Documents. Any material provision of any agreement or document that is executed in accordance with Section 7 shall for any reason cease to be valid and binding on or enforceable against the Company, or the Company shall so state in writing or bring an action to limit its obligations or liabilities thereunder; or such agreement or document shall for any reason (other than pursuant to the terms thereof) cease to create a valid security interest in the collateral (as defined in such agreement or document) purported to be covered thereby or such security interest shall for any reason (other than pursuant to the terms thereof or the failure of the Holder to take any action within its control) cease to be a perfected security interest; or

(v) Breach of Transaction Documents. The Company breaches in any material respect any material representation, warranty, covenant or other term or condition of the Note Purchase Agreement, this Note or any other Transaction Document, except, in the case of a breach which is curable, only if such breach continues for a period of at least thirty (30) consecutive calendar days after notice thereof; or

(vi) Cross Default. An Event of Default occurs under either (A) that certain Convertible Note, dated May 6, 2009, issued by the Company to the Holder or (B) that certain Convertible Note, dated as of an even date herewith, issued by the Company to SAF Capital Fund LLC, and, in each case after giving effect to any applicable notice and cure periods, the holder thereof declares all outstanding indebtedness and other obligations under such Convertible Note immediately due and payable.

(b) Rights of the Holder upon an Event of Default. Upon the occurrence or existence of an Event of Default set forth in Section 8(a), unless such Event of Default is waived by the Holder, immediately and without notice (except such notice as set forth in Section 8(a)(v)), all outstanding obligations owing from the Company hereunder, including, without limitation, all principal and accrued interest hereunder, shall automatically become immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived. In addition to the foregoing remedies, upon the occurrence or existence of any Event of Default, the Holder may exercise any other right, power or remedy granted to it by this Note or otherwise permitted to it under applicable law, either by suit in equity or by action at law, or both.

9. Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note, the Note Purchase Agreement and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder's right to pursue damages for any failure by the Company to comply with the terms of this Note. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder 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 Holder 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.

10. Failure or Indulgence Not Waiver. No failure or delay on the part of the Holder 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.

11. Waivers; Amendments; Assignments. None of the provisions of this Note may be waived, amended, supplemented or otherwise modified without the written consent of the Company and the Holder. An assignment of this Note by the Holder may be effectuated only upon surrender of the original Note to the Company followed by either reissuance of this Note to the new Holder or the issuance of a new instrument to such new Holder by the Company. The Company shall not be obligated to recognize any Person other than the registered Holder as having an interest in this Note, despite any notice to the contrary, unless the provisions of this Section 11 have been complied with.

12. Fees and Expenses. Except as otherwise expressly provided herein or in any other Transaction Document, the Company and the Holder shall bear their own fees and expenses (including without limitation reasonable attorneys', consultants' and accountants' fees and expenses) incurred in connection with this Note. Notwithstanding the foregoing, in the event that (a) the Company elects to prepay all or any portion of this Note within the Pre-Annual Meeting Prepayment Period or (b) the Shareholder Approval is not obtained at the Annual Meeting, the Company shall reimburse the Holder for all reasonable and documented out of pocket expenses incurred by the Holder related to the transactions contemplated by the Note Purchase Agreement and this Note. In addition, if the Holder brings an action to enforce any part of this Note or to declare a breach of this Note and in either case is substantially the prevailing party, then the Holder shall be entitled to recover from the Company, in addition to any amounts awarded, its reasonable attorneys’ fees and other reasonable costs actually incurred in connection with any such action.

13. Notices. All notices, demands and other communications provided for or permitted hereunder shall be provided, and shall be deemed to have been duly given, as provided for in Section 8.02 of the Note Purchase Agreement.

14. Governing Law; Submission to Jurisdiction. This Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of New York, notwithstanding any conflict of law provision to the contrary. THE COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, CITY OF NEW YORK, NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE COMPANY AND THE HOLDER PERTAINING TO THIS NOTE OR ANY OF THE OTHER TRANSACTION DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS NOTE OR ANY OF THE OTHER TRANSACTION DOCUMENTS, PROVIDED, THAT THE HOLDER AND THE COMPANY ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK COUNTY, AND, PROVIDED, FURTHER, NOTHING IN THIS NOTE SHALL BE DEEMED OR OPERATE TO PRECLUDE THE HOLDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS HEREUNDER, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE HOLDER. THE COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE COMPANY HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. THE COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE COMPANY AT THE ADDRESS SET FORTH IN SECTION 8.02 OF THE NOTE PURCHASE AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.

15. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT DISPUTES ARISING HEREUNDER OR RELATING HERETO BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN THE HOLDER AND THE COMPANY ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED IN CONNECTION WITH, THIS NOTE OR ANY OF THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO.

[Signatures follow on the next page]

IN WITNESS WHEREOF, the Company has caused this Note to be executed by its duly authorized officer as of the date set forth above.

PREMIER EXHIBITIONS, INC.

By:	/s/ John A. Stone
Name:	John A. Stone
Title:	Chief Financial Officer

EXHIBIT A

FORM OF WARRANT

EXHIBIT B

CONVERSION NOTICE

To convert this Note into shares of Common Stock, par value $0.0001 per share, of the Company, check the box: o

To convert only part of this Note, state the principal amount you want to be converted (which must be a minimum of $100,000 or any multiple thereof): $ _______________

If you want the certificate made out in another person's name fill in the form below:

(Print or type other person's name, address and zip code)

Please insert Social Security or tax identification number of other person: ______________

Dated:

Signed:

EX-99.4 3 ex99_4.htm EXHIBIT 99.4 ex99_4.htm

Exhibit 99.4

EXECUTION COPY

NEITHER THIS WARRANT NOR THE UNDERLYING SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.

WARRANT TO PURCHASE COMMON STOCK

PREMIER EXHIBITIONS, INC.

Warrant No. W-

June 15, 2009

THIS CERTIFIES THAT, for value received, Sellers Capital Master Fund, Ltd., an exempted company organized under the laws of the Cayman Islands, having an address at 311 S. Wacker Drive, Suite 925, Chicago, Illinois (the “Investor”), is entitled to subscribe for and purchase from Premier Exhibitions, Inc., a Florida corporation, or any successor (the “Company”), in whole or in part, at the Warrant Purchase Price (as herein defined), at any time during the period commencing on the Initial Exercise Date (as herein defined) and ending at 5:00 p.m., Eastern time, on the date that is five (5) years after the Effectiveness Date (as herein defined) (the “Expiration Date”), up to that number of shares of the fully paid and non-assessable Common Stock (as herein defined) determined by multiplying (i) seven percent (7%) by (ii) the total number of shares of Common Stock into which the outstanding principal amount of the Convertible Note (as herein defined) is, on the Effectiveness Date, convertible, in accordance with the terms thereof (as such number may be adjusted as provided herein, the “Warrant Shares”), subject to the provisions and upon the terms and conditions hereinafter set forth in this Warrant and all Warrants issued in exchange, transfer or replacement thereof (“Warrant”).

1. Definitions. As used in this Warrant, the following terms have the meanings set forth below:

“Aggregate Number” shall mean, at any time to be determined, the number of Warrant Shares for which this Warrant may be exercised at such time.

“Annual Meeting” shall mean the annual meeting of shareholders required to be called pursuant to the Note Purchase Agreement.

“Business Day” shall mean any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law or executive order to close.

“Cashless Exercise” shall have the meaning set forth in Section 2(b).

“Common Stock” shall mean the common stock, par value $0.0001 per share, of the Company (and any other securities into which or for which the Common Stock may be converted or exchanged pursuant to a dividend, stock split, plan of recapitalization, reorganization, merger, sale of assets or otherwise) into which this Warrant will be exercisable.

“Company” shall have the meaning set forth in the introductory paragraph hereto.

“Convertible Note” shall mean that certain convertible note issued by the Company to Investor on the date hereof pursuant to Section 5.06 of the Note Purchase Agreement.

“Effectiveness Date” shall have the meaning set forth in Section 10.

“Expiration Date” shall have the meaning set forth in the introductory paragraph hereto.

“Fair Market Value” shall mean, with respect to a share of Common Stock on any date: (i) the fair market value of the outstanding Common Stock over the ten (10) trading days immediately prior to the date of calculation based upon the closing price per share of Common Stock on each such day, as officially reported on the principal national securities exchange on which the Common Stock is then listed or admitted to trading; or (ii) if subsection (i) is not applicable, a market price per share determined in good faith by the Board of Directors of the Company, which shall be deemed to be “Fair Market Value.”

“Holder” shall mean any holder of an interest in the Warrant or the outstanding Warrant Shares who becomes a holder in compliance with Section 3 hereof.

“Initial Exercise Date” shall mean the first Business Day following the Annual Meeting.

“Investor” shall have the meaning set forth in the introductory paragraph hereto.

“Note Purchase Agreement” shall mean that certain Convertible Note Purchase Agreement, dated May 6, 2009, by and between the Company and Investor and to which SAF Capital Fund LLC joined as a party pursuant to that certain Joinder Agreement, dated as of an even date herewith, pursuant to which Investor will purchase the Convertible Note.

“Person” shall mean any individual, corporation, partnership, firm, limited liability company, joint venture, trust, association, unincorporated organization, university, group, joint-stock company or other entity.

“Securities Act” shall mean the Securities Act of 1933, as amended, or any similar federal statute, and the rules and regulations promulgated thereunder as the same shall be in effect at the time.

“Stock Combination” shall have the meaning set forth in Section 5(a)(i).

“Stock Dividend” shall have the meaning set forth in Section 5(a)(i).

“Stock Subdivision” shall have the meaning set forth in Section 5(a)(i).

“Transaction” shall have the meaning set forth in Section 5(b).

“Warrant Purchase Price” shall mean $0.70 per share, as adjusted as provided herein.

“Warrant Register” shall have the meaning set forth in Section 7.

“Warrant Shares” shall have the meaning set forth in the preamble.

2. Exercise of Warrant.

(a) If (and only if) the Effectiveness Date has occurred, beginning on the Initial Exercise Date, the rights represented by this Warrant may be exercised by the Holder hereof, in whole or in part (but not as to a fractional share of Common Stock), by (A) the delivery of this Warrant, together with a properly completed Notice of Exercise in the form attached hereto, to the principal office of the Company at 3340 Peachtree Road, N. E., Suite 2250, Atlanta, Georgia 30326 (or to such other address as the Company may designate by notice in writing to the Holder) and (B) payment to the Company of the Warrant Purchase Price for the Warrant Shares being purchased (i) by cash or by certified check or bank draft, (ii) as provided in Section 2(b), or (iii) any combination thereof. In the case of payment of all or a portion of the Warrant Purchase Price pursuant to Section 2(b), the direction of the Holder to make a Cashless Exercise shall serve as accompanying payment for that portion of the Warrant Purchase Price. The Company agrees that the shares so purchased shall be deemed to be issued to the Holder as the record owner of such shares as of the close of business on the date on which this Warrant shall have been delivered to the Company and payment made for such shares as aforesaid. Certificates for the shares so purchased shall be delivered to the Holder within ten (10) Business Days after the rights represented by this Warrant shall have been so exercised, and, unless this Warrant has expired, a new Warrant representing, and with an Aggregate Number equal to, the number of Warrant Shares, if any, with respect to which this Warrant shall not then have been exercised, in all other respects identical with this Warrant, shall also be issued and delivered to the Holder within such time, or, at the request of such Holder, appropriate notation may be made on this Warrant and signed by the Company and the same returned to such Holder. The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares. The Company shall, upon request of the Holder, use its reasonable best efforts to deliver Warrant Shares hereunder electronically through The Depository Trust Company or another established clearing corporation performing similar functions.

(b) Cashless Exercise. If the resale of the Warrant Shares is not covered by an effective registration statement under the Securities Act, the Holder shall have the right to pay all or a portion of the Warrant Purchase Price by making a “Cashless Exercise” pursuant to this Section 2(b), in which case (i) shares of the Company’s Common Stock other than the Warrant Shares or (ii) the Warrant Shares to be acquired upon the exercise of this Warrant may be applied to pay the Warrant Purchase Price in connection with the exercise of this Warrant in whole or in part. Any shares of Common Stock or Warrant Shares transferred to the Company as payment of the Warrant Purchase Price under this Warrant shall be valued at the Fair Market Value of such shares of Common Stock or Warrant Shares. For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.

(c) Transfer Restriction Legend. Each certificate for Warrant Shares issued upon exercise of this Warrant, unless at the time of exercise the offer and sale of such Warrant Shares are registered under the Securities Act, shall bear the following legend (and any additional legend required by applicable law or rule) on the face thereof:

THE OFFER AND SALE OF THE SHARES OF STOCK REPRESENTED HEREBY HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. NEITHER THESE SHARES, NOR ANY PORTION THEREOF OR INTEREST THEREIN, MAY BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE SAME ARE REGISTERED AND QUALIFIED IN ACCORDANCE WITH SAID ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR, IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.

The provisions of Section 3 shall be binding upon all holders of certificates for Warrant Shares bearing the above legend and shall also be applicable to all holders of this Warrant. The legend endorsed on the certificates for Warrant Shares shall be removed and the Company shall issue a certificate without such legend to the holder thereof at such time as the securities evidenced thereby cease to be restricted securities upon the earliest to occur of (i) a registration statement with respect to the resale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, or (ii) the securities shall have been resold to the public pursuant to Rule 144 (or any successor provision) under the Securities Act.

(d) Expenses and Taxes on Exercise. The Company shall pay all expenses, taxes and other charges payable in connection with the preparation, execution and delivery of any stock certificates and substitute Warrants pursuant to this Section 2, except that, in case such stock certificates or Warrants shall be registered in a name or names other than the name of the Holder of this Warrant, funds sufficient to pay all stock transfer taxes which shall be payable upon the execution and delivery of such stock certificates or Warrants shall be paid by the Holder to the Company at the time the Company delivers such stock certificates or Warrants to the Company for exercise. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof.

(e) Company Obligations. The Company’s obligations to issue and deliver Warrant Shares in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of Warrant Shares. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to deliver certificates representing shares of Common Stock upon exercise of this Warrant as required pursuant to the terms hereof.

(f) Automatic Exercise. If (and only if) the Effectiveness Date has occurred, if the Fair Market Value of the Common Stock immediately prior to (but not including) the Expiration Date exceeds the Warrant Purchase Price on the Expiration Date, then this Warrant shall be deemed to have been exercised in full (to the extent previously unexercised) on a “cashless exercise” basis pursuant to Section 2(b) at 5:00 p.m. on the Expiration Date.

3. Warrants and Warrant Shares Not Registered; Transferee Restrictions.

(a) Each Holder, by acceptance thereof, represents and acknowledges that the offer and sale of this Warrant and the Warrant Shares which may be purchased upon exercise of this Warrant are not being registered under the Securities Act, that the issuance of this Warrant and the offering and sale of such Warrant Shares are being made in reliance on the exemption from registration under Section 4(2) of the Securities Act as not involving any public offering and that the Company’s reliance on such exemption is predicated in part on the representations made by the initial Holder of this Warrant to the Company that such Holder (i) is acquiring this Warrant for investment purposes for its own account, with no present intention of reselling or otherwise distributing the same in violation of the Securities Act, subject, nevertheless, to any requirement of law that the disposition of its property shall at all times be within its control, (ii) is an “accredited investor” as defined in Regulation D under the Securities Act, and (iii) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the investments made or to be made in connection with the acquisition and exercise of this Warrant. Neither this Warrant nor the related Warrant Shares may be transferred except pursuant to an effective registration statement under the Securities Act or upon the conditions specified in Section 3(b).

(b) Notice of Transfer, Opinion of Counsel. Each Holder, by acceptance hereof, agrees that prior to the disposition of this Warrant or of any Warrant Shares, other than pursuant to an effective registration under the Securities Act, such Holder will give written notice to the Company expressing such Holder’s intention to effect such disposition and describing briefly such Holder’s intention as to the manner in which this Warrant or the Warrant Shares theretofore issued or thereafter issuable upon exercise hereof, are to be disposed together with an opinion of counsel as may be designated by such Holder and reasonably satisfactory to the Company as to the necessity or non-necessity of registration under the Securities Act. If in the opinion of such counsel, the proposed disposition does not require registration under the Securities Act of the disposition of this Warrant and/or the Warrant Shares issuable or issued upon the exercise of this Warrant, such Holder shall be entitled to dispose of this Warrant and/or the Warrant Shares theretofore issued upon the exercise hereof, all in accordance with the terms of the notice delivered by such Holder to the Company. The Company is entitled to rely on the most recent written notice from the Holder with respect to the ownership of the Warrant.

4. Representations, Warranties and Covenants of the Company.

(a) The Company hereby represents and warrants that (i) it has full corporate power and authority to execute and deliver this Warrant, (ii) the execution and delivery of this Warrant and the consummation by the Company of the transactions contemplated hereby have been duly and validly approved by all necessary corporate action on the part of the Company and (iii) this Warrant has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms.

(b) The Company covenants and agrees that (i) during the period within which the rights represented by this Warrant may be exercised, the Company will have at all times authorized, and reserved for the purpose of issue or transfer upon exercise of the rights evidenced by this Warrant, a sufficient number of shares of Common Stock to provide therefore, (ii) the Warrant Shares issued pursuant to the exercise of this Warrant will, upon issuance, be duly and validly issued, fully paid and non-assessable and (iii) the Company shall use its commercially reasonable efforts to procure at its sole expense the listing of all Warrant Shares then registered for public sale (subject to issuance or notice of issuance) on all stock exchanges on which the shares of Common Stock are then listed.

5. Adjustments of Aggregate Number.

(a) Adjustments. The Aggregate Number, after taking into consideration any prior adjustments pursuant to this Section 5, shall be subject to adjustment from time to time as follows and, thereafter, as adjusted, shall be deemed to be the Aggregate Number hereunder. No adjustments shall be made under this Section 5 as a result of the issuance by the Company of the Warrant Shares upon exercise of this Warrant.

(i) Stock Dividends; Subdivisions and Combinations. In case at any time or from time to time the Company shall:

(A) issue to the holders of the Common Stock a dividend payable in, or other distribution of, Common Stock (a “Stock Dividend”),

(B) subdivide its outstanding shares of Common Stock into a larger number of shares of Common Stock, including, without limitation, by means of a stock split (a “Stock Subdivision”), or

(C) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock (a “Stock Combination”),

then the Aggregate Number in effect immediately prior thereto shall be (1) proportionately increased in the case of a Stock Dividend or a Stock Subdivision and (2) proportionately decreased in the case of a Stock Combination. In the event the Company shall declare or pay, without consideration, any dividend on the Common Stock payable in any right to acquire Common Stock for no consideration, then the Company shall be deemed to have made a Stock Dividend in an amount of shares equal to the maximum number of shares issuable upon exercise of such rights to acquire Common Stock.

(ii) Miscellaneous. The following provisions shall be applicable to the making of adjustments of the Aggregate Number provided above in this Section 5(a):

(A) Whenever the Aggregate Number is adjusted pursuant to this Section 5(a), the Warrant Purchase Price per Warrant Share payable upon exercise of this Warrant shall be adjusted by multiplying the Warrant Purchase Price immediately prior to such adjustment by a fraction, the numerator of which shall be the Aggregate Number prior to such adjustment, and the denominator of which shall be the Aggregate Number following such adjustment.

(B) If the Company shall take a record of the holders of the Common Stock for the purpose of entitling them to receive a dividend or distribution or subscription or purchase rights and shall, thereafter and before the distribution to shareholders thereof, legally abandon its plan to pay or deliver such dividend, distribution, subscription or purchase rights, then no adjustment shall be required by reason of the taking of such record and any such adjustment previously made in respect thereof shall be rescinded and annulled.

(b) Changes in Common Stock. In case at any time the Company shall initiate any transaction or be a party to any transaction (including, without limitation, a merger, consolidation, share exchange, sale, lease or other disposition of all or substantially all of the Company’s assets, liquidation, recapitalization or reclassification of the Common Stock or other transaction) in connection with which the previous outstanding Common Stock shall be changed into or exchanged for different securities of the Company or securities of another corporation or interests in a non-corporate entity or other property (including cash) or any combination of the foregoing (each such transaction being herein called a “Transaction”), then, as a condition of the consummation of the Transaction and without duplication of any adjustment made pursuant to Section 5(a)(i), lawful, enforceable and adequate provision shall be made so that the Holder shall be entitled to receive upon exercise of this Warrant at any time on or after the consummation of the Transaction, in lieu of the Warrant Shares issuable upon such exercise prior to such consummation, the securities or other property (including cash) to which such Holder would have been entitled upon consummation of the Transaction if such Holder had exercised this Warrant immediately prior thereto (subject to adjustments from and after the consummation date as nearly equivalent as possible to the adjustments provided for in this Section 5). The foregoing provisions of this Section 5(b) shall similarly apply to successive Transactions. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Transaction, then the Holder shall be given the same choice as to the consideration it receives upon any exercise of this Warrant following such Transaction. At the Holder’s request, any successor to the Company or surviving entity in such Transaction shall issue to the Holder a new warrant consistent with the foregoing provisions.

(i) Notice of Proposed Actions. In case the Company shall propose (A) to pay any dividend payable in stock of any class to the holders of the Common Stock or to make any other distribution to the holders of the Common Stock, (B) to effect any reclassification of the Common Stock, (C) to effect any recapitalization, stock subdivision, stock combination or other capital reorganization, (D) to effect any consolidation or merger, share exchange, or sale, lease or other disposition of all or substantially all of its property, assets or business, (E) to effect the liquidation, dissolution or winding up of the Company, or (F) to effect any other action which would require an adjustment under this Section 5, then in each such case the Company shall give to the Holder written notice of such proposed action, which shall specify the date on which a record is to be taken for the purposes of such stock dividend, stock subdivision, stock combination, or distribution, or the date on which such reclassification, recapitalization, reorganization, consolidation, merger, share exchange, sale, lease, transfer, disposition, liquidation, dissolution, winding up or other transaction is to take place and the date of participation therein by the holders of Common Stock, if any such date is to be fixed, or the date on which the transfer of Common Stock is to occur, and shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action on the Common Stock and on the Aggregate Number after giving effect to any adjustment which will be required as a result of such action. Such notice shall be so given in the case of any action covered by clause (A) or (B) above at least ten (10) days prior to the record date for determining holders of the Common Stock for purposes of such action and, in the case of any other such action, at least ten (10) days prior to the earlier of the date of the taking of such proposed action or the date of participation therein by the holders of Common Stock.

(ii) Adjustment Notice. Whenever the Aggregate Number is to be adjusted pursuant to this Section 5, unless otherwise agreed by the Holder, the Company shall promptly (and in any event within twenty (20) Business Days after the event requiring the adjustment) prepare a certificate signed by the principal executive officer or the principal financial officer of the Company, setting forth, in reasonable detail, the event requiring the adjustment and the method by which such adjustment is to be calculated. The Company shall keep at its principal office copies of all such certificates and cause the same to be available for inspection at said office during normal business hours by the Holder or any prospective purchaser of the Warrant (in whole or in part) if so designated by the Holder.

6. Exchange, Replacement and Assignability. This Warrant is exchangeable, upon the surrender hereof by the Holder at the office or agency of the Company described in Section 2, for new Warrants of like tenor and date representing in the aggregate the right to purchase the number of Warrant Shares which may be purchased hereunder, each of such new Warrants to represent the right to purchase such number of Warrant Shares as shall be designated by such Holder at the time of such surrender. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of Warrants and, in the case of any such loss, theft or destruction, of an indemnity letter (reasonably satisfactory to the Company) of an institutional holder of such Warrants, or in other cases, of a bond of indemnity or other security satisfactory to the Company, or, in the case of any such mutilation, upon surrender or cancellation of Warrants, the Company will issue to the Holder a new Warrant of like tenor and date, in lieu of this Warrant or such new Warrants, representing the right to purchase the number of Warrant Shares which may be purchased hereunder. Subject to compliance with Section 3, this Warrant and all rights hereunder are transferable in whole or in part upon the books of the Company by the registered Holder hereof in person or by duly authorized attorney, and new Warrants shall be made and delivered by the Company, of the same tenor and date as this Warrant but registered in the name of the transferees, upon surrender of this Warrant, duly endorsed, to the appropriate office or agency of the Company. All expenses, taxes (other than stock transfer taxes) and other charges payable in connection with the preparation, execution and delivery of Warrants pursuant to this Section 6 shall be paid by the Company.

7. Registration of Warrant. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of record of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.

8. Warrant Agent. The Company shall serve as warrant agent under this Warrant. Upon 30 days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Company or any new warrant agent shall be a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or stockholder services business shall be a successor warrant agent under this Warrant without any further act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register.

9. Transfer Books, No Rights as Shareholder, Survival of Rights. The Company will at no time close its transfer books against the transfer of this Warrant or any Warrant Shares in any manner which interferes with the timely exercise of this Warrant. This Warrant shall not entitle the Holder to any voting rights or any rights as a shareholder of the Company. The rights and obligations of the Company, of the Holder of this Warrant and of any Holder of Warrant Shares issued upon exercise of this Warrant pursuant to the terms of this Warrant shall survive the exercise of this Warrant.

10. Effectiveness of this Warrant. This Warrant shall become effective, and shall be deemed to be delivered to the Holder on the date hereof, if, and only if, the Company prepays all or any portion of the Convertible Note within the Pre-Annual Meeting Prepayment Period (the date of any such prepayment being the “Effectiveness Date”).

11. No Inconsistent Agreements. The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the Holders in this Warrant.

12. Amendment and Waiver.

(a) It is agreed that any waiver, permit, consent or approval of any kind or character on the Holder’s part of any breach or default under this Warrant, or any waiver on the Holder’s part of any provisions or conditions of this Warrant must be in writing.

(b) Any amendment, supplement or modification of or to any provision of this Warrant, any waiver of any provision of this Warrant and any consent to any departure by any party from the terms of any provision of this Warrant shall be effective only if it is made or given in writing and signed by the Company and the Holder.

(c) Any amendment or waiver consented to as provided in this Section 12 is binding upon each future Holder of this Warrant and upon the Company without regard to whether this Warrant has been marked to indicate such amendment or waiver.

13. Rights of Transferees. Subject to compliance with Section 3, the rights granted to the Holder hereunder of this Warrant shall pass to and inure to the benefit of all subsequent transferees of all or any portion of the Warrant (provided that the Holder and any transferee shall hold such rights in proportion to their respective ownership of the Warrant and Warrant Shares) until extinguished pursuant to the terms hereof.

14. Headings. The headings in this Warrant are for convenience of reference only and shall not constitute a part of this Warrant, nor shall they affect their meaning, construction or effect.

15. Notices. All notices, demands and other communications provided for or permitted hereunder shall be provided, and shall be deemed to have been duly given, as provided for in Section 8.02 of the Note Purchase Agreement.

16. Successors and Assigns. This Warrant shall be binding upon and inure to the benefit of the parties hereto and their respective successors or heirs and personal representatives and permitted assigns; provided, that the Company shall have no right to assign its rights, or to delegate its obligations, hereunder without the prior written consent of the Holder.

17. Governing Law. This Agreement and (unless otherwise provided) all amendments hereof and waivers and consents hereunder shall be governed by the laws of the State of New York, notwithstanding any conflict of law provision to the contrary. THE COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, CITY OF NEW YORK, NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE COMPANY AND THE HOLDER PERTAINING TO THIS WARRANT OR ANY OF THE OTHER TRANSACTION DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS WARRANT OR ANY OF THE OTHER TRANSACTION DOCUMENTS, PROVIDED, THAT THE HOLDER AND THE COMPANY ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK COUNTY, AND, PROVIDED, FURTHER, NOTHING IN THIS WARRANT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE HOLDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE HOLDER. THE COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE COMPANY HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. THE COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PERSON AT THE ADDRESS SET FORTH IN SECTION 8.02 OF THE NOTE PURCHASE AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.

18. Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof. The parties hereto further agree to replace such invalid, illegal or unenforceable provision of this Warrant with a valid, legal and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid, illegal or unenforceable provision.

19. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT DISPUTES ARISING HEREUNDER OR RELATING HERETO BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG THE COMPANY AND HOLDER ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED IN CONNECTION WITH, THIS WARRANT OR ANY OF THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO.

20. Entire Agreement. This Warrant contains the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or understandings with respect thereto.

[signature page follows]

IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized officer, duly attested by its authorized officer, as of the date first set forth above.

		PREMIER EXHIBITIONS, INC.


		By:	/s/ John A. Stone
			Name:	John A. Stone
			Title:	Chief Financial Officer

ATTEST:.


By:
	Name:
	Title:

[Signature Page]

NOTICE OF EXERCISE

To:	Premier Exhibitions, Inc.

3340 Peachtree Road, N. E., Suite 2250

Atlanta, Georgia 30326

Attention: Chief Executive Officer

Facsimile: 404.842.2626

1. The undersigned, pursuant to the provisions of the attached Warrant, hereby elects to exercise this Warrant with respect to ________ shares of Common Stock (the “Exercise Amount”). Capitalized terms used but not otherwise defined herein have the meanings ascribed thereto in the attached Warrant.

2. The undersigned herewith tenders payment for such shares in the following manner (please check type, or types, of payment and indicate the portion of the Exercise Price to be paid by each type of payment):

______ Exercise for Cash

______ Cashless Exercise

3. Please issue a certificate or certificates representing the shares issuable in respect hereof under the terms of the attached Warrant, as follows:

(Name of Record Holder/Transferee)

and deliver such certificate or certificates to the following address:

(Address of Record Holder/Transferee)

4. If the Exercise Amount is less than all of the shares of Common Stock purchasable hereunder, please issue a new warrant representing the remaining balance of such shares, as follows:

(Name of Record Holder/Transferee)

and deliver such warrant to the following address:

(Address of Record Holder/Transferee)

Date:	Name of Record Holder



	By:
		Name:
		Title:

	[Notice of Exercise]

EX-99.5 4 ex99_5.htm EXHIBIT 99.5 ex99_5.htm

Exhibit 99.5

EXECUTION COPY

JOINDER AGREEMENT AND AMENDMENT

THIS JOINDER AGREEMENT AND AMENDMENT (this “Agreement”), dated June 15, 2009, is entered into by and among Premier Exhibitions, Inc., a Florida corporation (the “Company”), Sellers Capital Master Fund, Ltd., an exempted company organized under the laws of the Cayman Islands (the “Original Investor”), and SAF Capital Fund LLC, a Delaware limited liability company (the “Other Investor”). The Original Investor and the Other Investor are sometimes collectively referred to herein as the “Investors.”

Background

A. The Company and the Original Investor are parties to that certain (i) Convertible Note Purchase Agreement, dated May 6, 2009 (the “Purchase Agreement”) and (ii) Registration Rights Agreement, dated as of May 11, 2009 (the “Registration Rights Agreement”).

B. Simultaneous with the execution and delivery of this Agreement, the Company has sold to each of the Investors, and each of the Investors has purchased from the Company, a Convertible Note in the principal amount set forth opposite the name of such Investor on Schedule A for an aggregate purchase price equal to $6,000,000, in each case pursuant to Section 5.06 of the Purchase Agreement (collectively, the “Convertible Notes”).

C. In connection with the purchase and sale of the Convertible Notes, the Company and each of the Investors desire for the Other Investor to become a party to, and be bound by and subject to all of the covenants, terms and conditions of, the Purchase Agreement and the Registration Rights Agreement.

In consideration of the mutual covenants contained in this Agreement and in the Purchase Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties to this Agreement agree as follows:

1. General. The Company and the Investors agree that, simultaneous with the execution and delivery of this Agreement, each of the Investors has purchased from the Company, and the Company has sold to each of the Investors, the Convertible Notes pursuant to Section 5.06 of the Purchase Agreement. In connection with such purchase and sale, the Other Investor hereby adopts and becomes a party to the Purchase Agreement and the Registration Rights Agreement and is bound by, and is subject to, all of the covenants, provisions, terms and conditions of the Purchase Agreement and the Registration Rights Agreement as fully and the same as though the Other Investor was an original party thereto.

2. Joinder to Purchase Agreement. Without limiting the foregoing, for all purposes under the Purchase Agreement, (a) the Other Investor will be deemed to be an “Investor” and will have identical rights and benefits, on a pro rata basis, as the Original Investor under the Purchase Agreement with respect to the purchase and sale of the Convertible Notes, (b) the Convertible Notes will be deemed to be the “Other Notes” contemplated by Section 5.06 of the Purchase Agreement, and (c) the Convertible Note (as defined in the Purchase Agreement) and each of the Convertible Notes will each be deemed to be a “Convertible Note” under the Purchase Agreement and the Common Stock (as defined in the Purchase Agreement) issuable upon conversion of each such Convertible Note will be deemed to be “Conversion Shares.”

3. Joinder to Registration Rights Agreement. Without limiting the foregoing, for all purposes under the Registration Rights Agreement, (a) the Convertible Note (as defined in the Registration Rights Agreement) and each of the Convertible Notes will each be deemed to be “Convertible Note” under the Registration Rights Agreement, (b) the Warrant (as defined in the Registration Rights Agreement) and each of the Warrants issued pursuant to each of the Convertible Notes will each be deemed to be a “Warrant ” under the Registration Rights Agreement, (c) the shares of Common Stock (as defined in the Registration Rights Agreement) into which the Convertible Notes may be converted and the shares of Common Stock into which the Warrants, if issued in accordance with the terms of the Convertible Notes, will be exercisable will be deemed “Registrable Securities” under the Registration Rights Agreement, and (d) the Other Investor will be deemed to be a “Holder” under the Registration Rights Agreement upon becoming the record owner of any Registrable Securities.

4. Certain Amendments and Consents. Notwithstanding anything in this Agreement to the contrary, any amendment to, or consent or approval required under, the Purchase Agreement on behalf of the Investors will be effected by holders of a majority of the aggregate principal amount of the Notes (as defined in the Purchase Agreement).

5. Representations and Warranties of the Company. The Company certifies that the representations and warranties set forth in Article III of the Purchase Agreement that are qualified by materiality, Material Adverse Effect or other similar qualifier are true and correct in all respects, and all other representations and warranties set forth in Article III of the Purchase Agreement are true and correct in all material respects, in each case as of the date of the Purchase Agreement and on and as of the date hereof, as though made on and as of the date hereof (except to the extent such representations and warranties speak as of an earlier date, which are true and correct in all materials respects as of such earlier date).

6. Representations and Warranties of the Investors.

(a) The Original Investor certifies that the representations and warranties set forth in Article IV of the Purchase Agreement are true and correct in all material respects, in each case as of the date of the Purchase Agreement and on and as of the date hereof, as though made on and as of the date hereof (except to the extent such representations and warranties speak as of an earlier date, which are true and correct in all materials respects as of such earlier date).

(b) In connection with the purchase and sale of the Convertible Note to the Other Investor pursuant to Section 5.06 of the Purchase Agreement and as a result of the joinder contemplated by this Agreement, (i) the representations and warranties set forth in Sections 4.01 through 4.06 of the Purchase Agreement are hereby made, ratified and confirmed by the Other Investor in all respects as of the date hereof as fully and the same as though the Other Investor was an original party thereto and (ii) the Other Investor certifies that such representations and warranties are true and correct in all material respects with respect to the Other Investor, in each case as of the date hereof (except to the extent such representations and warranties speak as of an earlier date, which are true and correct in all materials respects as of such earlier date).

7. Amendment to Original Warrant. Section 12(c) of that certain Warrant, dated May 11, 2009 (the “Original Warrant”), issued by the Company to the Original Investor is hereby deleted and replaced in its entirety with the following and, except for the amendment contemplated by this Section 7, the Original Warrant will remain in full force and effect:

8. Headings and Counterparts. The descriptive headings of this Agreement are for convenience of reference only and do not constitute a part of this Agreement. This Agreement may be executed in two (2) or more counterparts, each of which will be deemed an original and all of which taken together will constitute one and the same instrument.

9. Governing Law. The validity, performance, construction and effect of this Agreement will be governed by and construed in accordance with the internal laws of the State of New York, notwithstanding any conflict of law provision to the contrary.

[signature page follows]

IN WITNESS WHEREOF, each of the parties hereto has executed this Joinder Agreement and Amendment on the day and year first above written.

COMPANY

PREMIER EXHIBITIONS, INC.


By:	/s/ John A. Stone
Name:	John A. Stone
Title:	Chief Financial Officer

ORIGINAL INVESTOR

SELLERS CAPITAL MASTER FUND, LTD.


By:	/s/ Samuel S. Weiser
Name:	Samuel S. Weiser
Title:	Chief Operating Officer

OTHER INVESTOR

SAF CAPITAL FUND LLC


By:	/s/ Mark McGowan
Name:	Mark McGowan
Title:	Managing Partner

Schedule A

Other Notes

Investor		Principal Amount of Other Notes

Sellers Capital Master Fund, Ltd.		$5,550,000

SAF Capital Fund LLC		$450,000

		$6,000,000