Creative Realities, Inc S-3, filed May 15, 2020

Creative Realities, Inc. (CREX)

S-3 2020-05-15

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Minnesota		41-1967918
(State or jurisdiction of		(I.R.S. Employer
incorporation or organization)		Identification No.)

Large accelerated filer ☐		Accelerated filer ☐
Non-accelerated filer ☐		Smaller reporting company ☒
		Emerging growth company ☐

Title of each class of Securities to be registered	Amount to be registered (1)		Proposed maximum offering price per security (2)(3)		Proposed maximum aggregate offering price (2)(3)		Amount of registration fee (4)
Common stock, par value $0.01 per share		—		—		—		—
Preferred stock		—		—		—		—
Warrants		—		—		—		—
Debt Securities		—		—		—		—
Total	$	50,000,000			$	50,000,000	$	6,490.00

	Page
About this Prospectus	ii
The Company	1
Risk Factors	6
Note Regarding Forward Looking Statements	7
Use of Proceeds	8
Dilution	9
Description of Capital Stock	10
Description of Debt Securities	12
Description of Warrants	19
Plan of Distribution	24
Legal Matters	25
Experts	25
Where You Can Find More Information	25
Important Information Incorporated by Reference	26

Securities and Exchange Commission registration fee	$	6,940.00
Legal fees and expenses	$	*
Accounting fees and expenses	$	*
Printing and engraving expenses	$	*
Miscellaneous expenses	$	*
Blue sky fees and expenses	$	*
Total	$	*

Exhibit Number		Description
1.1*		Form of Underwriting Agreement
3.1		Articles of Incorporation, as amended (incorporated by reference to registrant’s Amendment No. 1 to Form SB-2 filed on October 12, 2006).
3.2		Articles of Incorporation, as amended (incorporated by reference to Exhibit 3.1 to the registrant’s Form 8-K filed with the SEC on September 17, 2014)
3.3		Articles of Amendment Filed on October 17, 2018 (incorporate by reference to Exhibit 3.3 to the registrant’s registration statement on Form S-1 filed October 17, 2018)
3.4		Series A-1 Convertible Preferred Stock Certificate of Designation of Preferences, Rights and Limitations filed October 30, 3015 (incorporated by reference to Exhibit 4.2 of the registrant’s Registration Statement on Form S-1 filed with the SEC on February 11, 2016)
3.5		Amendment to Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the registrant’s Form 8-K filed with the SEC on September 17, 2014)
3.6		Articles of Amendment (incorporated by reference to Exhibit 3.1 to the registrant’s Form 8-K filed with the SEC on October 16, 2014)
3.7		Articles of Amendment Filed on October 17, 2018 (incorporated by reference to Exhibit 3.3 to the registrant’s registration statement on Form S-1 filed October 17, 2018)
3.8		Statement of Cancellation of Certificate of Designation of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the registrant’s Form 8-K filed with the SEC on March 18, 2019)
3.9		Statement of Cancellation of Certificate of Designation of Series A-1 Convertible Preferred Stock (incorporated by reference to Exhibit 3.2 to the registrant’s Form 8-K filed with the SEC on March 18, 2019)
3.10		Amended and Restated Bylaws (incorporated by reference to the registrant’s Current Report on Form 8-K filed on November 2, 2011)
4.1		Specimen certificate evidencing shares of Common Stock (incorporated by reference to Exhibit 4.2 of the Registrant’s Registration Statement on Form SB-2 (File No. 333-136972), filed with the SEC on August 29, 2006).
4.2*		Specimen certificate evidencing shares of Preferred Stock
4.3*		Form of Debt Security
4.4		Form of Indenture between the registrant and one or more trustees to be named
4.5*		Form of Warrant
4.6*		Form of Warrant Agreement
4.7		Description of Registrant’s Securities (incorporated by reference to the registrant’s Annual Report on Form 10-K filed with the SEC on March 13, 2020)
5.1		Opinion of Maslon LLP
23.1		Consent of EisnerAmper LLP
23.2		Consent of Maslon LLP (included as part of Exhibit 5.1)
24.1		Power of Attorney (included on signature page)
25.1**		Statement of Eligibility of Trustee on Form T-1

	(i)	Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

	(ii)	Each prospectus required to be filed pursuant to Rule 424(b)(2), 424(b)(5), or 424(b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), 415(a)(1)(vii), or 415(a)(1)(x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.


	(i)	Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

	(ii)	Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

	(iii)	The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

	(iv)	Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

	(b)	The undersigned registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

	(h)	Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

	CREATIVE REALITIES, INC.

	/s/ Richard Mills
	Richard Mills
	Chief Executive Officer

Signature	Title	Date

/s/ Richard Mills	Director, Chief Executive Officer	May 14, 2020
Richard Mills	(principal executive officer)

/s/ Dennis McGill	Chairman of the Board	May 14, 2020
Dennis McGill

/s/ Will Logan	Chief Financial Officer	May 14, 2020
Will Logan	(principal accounting and financial officer)

/s/ Donald A. Harris	Director	May 14, 2020
Donald A. Harris

/s/ Stephen Nesbit	Director	May 14, 2020
Stephen Nesbit

/s/ David Bell	Director	May 14, 2020
David Bell

Section 310(a) (1)	7.10
(a) (2)	7.10
(a) (3)	Not Applicable
(a) (4)	Not Applicable
(a) (5)	7.10
(b)	7.10
Section 311(a)	7.11
(b)	7.11
(c)	Not Applicable
Section 312(a)	2.6
(b)	10.3
(c)	10.3
Section 313(a)	7.6
(b) (1)	7.6
(b) (2)	7.6
(c) (1)	7.6
(d)	7.6
Section 314(a)	4.2, 10.5
(b)	Not Applicable
(c) (1)	10.4
(c) (2)	10.4
(c) (3)	Not Applicable
(d)	Not Applicable
(e)	10.5
(f)	Not Applicable
Section 315(a)	7.1
(b)	7.5
(c)	7.1
(d)	7.1
(e)	6.14
Section 316(a)	2.10
(a) (1)(a)	6.12
(a) (1)(b)	6.13
(b)	6.8
Section 317(a)(1)	6.3
(a)(2)	6.4
(b)	2.5
Section 318(a)	10.1

		DEFINED IN
TERM		SECTION
“Bankruptcy Law”		6.1
“Custodian”		6.1
“Event of Default”		6.1
“Journal”		10.15
“Judgment Currency”		10.16
“Legal Holiday”		10.7
“mandatory sinking fund payment”		11.1
“Market Exchange Rate”		10.15
“New York Banking Day”		10.16
“optional sinking fund payment”		11.1
“Paying Agent”		2.4
[INCLUDE THIS LANGUAGE FOR SUBORDINATED SECURITIES:
“Payment Blockage Notice”		12.2]
“Registrar”		2.4
“Required Currency”		10.16
“Service Agent”		2.4
“successor person”		5.1

	(a)	a term has the meaning assigned to it;

	(b)	an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;

	(c)	references to “generally accepted accounting principles” shall mean generally accepted accounting principles in the United States in effect as of the time when and for the period as to which such accounting principles are to be applied;

	(d)	“or” is not exclusive;

	(e)	words in the singular include the plural, and in the plural include the singular; and

	(f)	provisions apply to successive events and transactions.

	(a)	the Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series,

	(b)	an Officers’ Certificate complying with Section 10.4, and

	(c)	an Opinion of Counsel complying with Section 10.4.

	(a)	the redemption date;

	(b)	the redemption price;

	(c)	the name and address of the Paying Agent;

	(d)	that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;

	(e)	that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date; and

	(f)	any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.

	(a)	the successor person (if any) is a corporation, partnership, trust or other entity organized and validly existing under the laws of any U.S. domestic jurisdiction and in a subsequent indenture expressly assumes the Company’s obligations on the Securities and under this Indenture and

	(b)	immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.

	(a)	default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); or

	(b)	default in the payment of the principal of any Security of that Series at its Maturity; or

	(c)	default in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; or

	(d)	default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Securities other than that Series), which default continues uncured for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

	(a)	With reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c) ) with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay principal and interest, if any, on and any mandatory sinking fund in respect of the Securities of such Series on the dates such installments of interest or principal are due;

	(b)	Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;

	CREATIVE REALITIES, INC.

	By:
	Name:
	Its:

	[Name of Trustee]

	By:
	Name:
	Its: