Prairie Operating Co S-1/A, filed Sep 30, 2021
Prairie Operating Co. (PROP)
As filed with the Securities and Exchange Commission on September 30, 2021
Registration No. 333-259729
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CREEK ROAD MINERS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 7900 | 98-0357690 | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
2700 Homestead Road, Park City, UT 84098
Tel: 650-525-0231
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
VCORP SERVICES, LLC
1013 Centre Road, Suite 403-B, Wilmington, DE 19805
Tel: (212) 828-8436
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Steven D. Pidgeon, Esq.
DLA Piper LLP (US)
2525 East Camelback Road
Esplanade II, Suite 1000
Phoenix, AZ 85016-4232
Tel: +1 480 606 5124
Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement is declared effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ |
| Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
CALCULATION OF REGISTRATION FEE
Title of Each Class of Security Being Registered |
Amount Being Registered(1) |
Proposed Maximum Offering Price per Security(2) | Proposed Maximum Aggregate Offering |
Amount
of Registration Fee(4) |
||||||||||||
| Common Stock, $0.0001 par value per share (3) | 19,733,346 | $ | 2.00 | $ | 39,466,692.00 | $ | 4,305.82 | |||||||||
| Total | 19,733,346 | $ | 2.00 | $ | 39,466,692.00 | $ | 4,305.82 | |||||||||
(1) This registration statement also includes an indeterminate number of securities that may become offered, issuable or sold to prevent dilution resulting from stock splits, stock dividends and similar transactions, which are included pursuant to Rule 416 under the Securities Act of 1933, as amended.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) promulgated under the Securities Act of 1933, as amended, based upon the average of the bid and asked prices of the common stock as reported on the OTC Markets on September 20, 2021.
(3) Consists of (i) 10,800,000 shares of common stock issuable upon the automatic conversion of the Series B Preferred Stock issuable upon the exercise of warrants issued in a private placement in March 2021 (the “March 2021 Private Placement”), (ii) up to 4,400,000 shares of common stock issuable upon the conversion of the Series B Preferred Stock issued in the March 2021 Private Placement, (iii) 2,266,673 shares of common stock issued in a private placement in August 2021 (the “August 2021 Private Placement”), and (iv) 2,266,673 shares of common stock issuable upon the exercise of warrants issued in the August 2021 Private Placement.
(4) Previously paid.
EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement on Form S-1 is being filed solely for the purpose of filing exhibits as indicated in Part II of this Amendment No. 1. Accordingly, this Amendment No. 1 consists only of the facing page, this explanatory note, Item 16(a) of Part II of the Registration Statement, the signature pages to the Registration Statement and the filed exhibits. No change is made to Part I or Part II of the Registration Statement, other than Item 16(a) of Part II, and those items have therefore been omitted.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibit Index
| II-3 |
+ Indicates management contract or compensatory plan or arrangement.
* Filed herewith.
# Previously filed.
| II-4 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Park City, Utah on this September 30, 2021.
| CREEK ROAD MINERS, INC. | ||
| By: | /s/ Scott D. Kaufman | |
| Name: | Scott D. Kaufman | |
| Title: | Chief Executive Officer | |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
Name |
Position |
Date | ||
| /s/ Scott D. Kaufman | Chief Executive Officer, President and Chairman of the Board | September 30, 2021 | ||
| Scott D. Kaufman | (Principal Executive Officer) | |||
| * | Chief Financial Officer | September 30, 2021 | ||
| Heidi C. Bowman | (Principal Financial and Accounting Officer) | |||
| * | Director | September 30, 2021 | ||
| Paul L. Kessler | ||||
| * | Director | September 30, 2021 | ||
| Greg Suess | ||||
| * | Director | September 30, 2021 | ||
| Michael Breen | ||||
| * | Director | September 30, 2021 | ||
| John D. Maatta |
| By: | /s/ Scott D. Kaufman | |
| Scott D. Kaufman | ||
| As Attorney-in-Fact |
| II-5 |
Exhibit 5.1
 |
DLA Piper LLP (US) 2525 East Camelback Road Suite
1000 www.dlapiper.com |
September 30, 2021
Creek Road Miners, Inc.
2700 Homestead Road
Park City, UT 84098
| Re: | Registration Statement on Form S-1 |
Ladies and Gentlemen:
This opinion letter is furnished to you in connection with the Registration Statement on Form S-1, including a related prospectus filed therewith (the “Prospectus”), filed on September 22, 2021 and amended September 30, 2021(the “Registration Statement”) by Creek Road Miners (f/k/a Wizard Brands, Inc.), a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), with respect to the resale from time to time by the selling stockholders of the Company, as detailed in the Registration Statement (the “Selling Stockholders”), of up to 19,733,346 shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”), which consists of (i) 10,800,000 shares of Common Stock (the “March Warrant Conversion Shares”) issuable upon the automatic conversion of the Series B Preferred Stock, par value $0.0001 per share (“Series B Preferred Stock”), issuable upon the exercise of warrants (the “March Warrant Shares”) issued in a private placement in March 2021 (the “March 2021 Private Placement”), (ii) up to 4,400,000 shares of Common Stock (the “March Conversion Shares”) issuable upon conversion of the Series B Preferred Stock issued in the March 2021 Private Placement (the “March 2021 Private Placement Shares”), (iii) 2,266,673 shares of Common Stock issued in a private placement in August 2021 (the “August 2021 Private Placement Shares”), and (iv) 2,266,673 shares of Common Stock issuable upon the exercise of warrants issued in the August 2021 Private Placement (the “August Warrant Shares”).
For purposes of our opinions set forth below, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such documents, resolutions, certificates and other instruments of the Company and corporate records furnished to us by the Company, and have reviewed certificates of public officials, statutes, records and such other instruments and documents as we have deemed necessary or appropriate as a basis for the opinions set forth below, including, without limitation:
| (i) | the Amended and Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware on June 5, 2020, and as amended by the Certificate of Amendment of Amended and Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on July 29, 2020 and the Certificate of Amendment to the Amended and Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on July 9, 2021 (the “Charter”); |
| (ii) | the Certificate of Designation and Restatement of Rights, Preferences and Restrictions of Series A Preferred Stock, dated August 3, 2020 (the “Series A Certificate of Designation”); |
| (iii) | the Amended and Restated Certificate of Designation of Preferences, Rights and Limitations of Series B Preferred Stock, dated July 16, 2021 (the “Series B Certificate of Designation”); |
Creek Road Miners, Inc.
September 30, 2021
Page Two
| (iv) | the Bylaws of the Company, as amended by the First Amendment to the Bylaws of Wizard World, Inc., as presently in effect, as certified by the Secretary of the Company as of the date hereof; |
| (v) | the Securities Purchase Agreement dated March 26, 2021, by and between Wizard Brands, Inc. and Leviston Resources LLC (the “March Securities Purchase Agreement”); |
| (vi) | Amendment No.1 to Securities Purchase Agreement, dated July 16, 2021, by and between Creek Road Miners, Inc. and Leviston Resources, LLC (the “March Amendment”); |
| (vii) | the Series B Preferred Stock Purchase Warrant (Series 1) issued to Leviston Resources LLC (the “March Series 1 Warrant”); |
| (viii) | Amendment No. 1 to Series B Preferred Stock Purchase Warrant (Series 1) issued to Leviston Resources LLC, dated July 16, 2021; |
| (ix) | the Series B Preferred Stock Purchase Warrant (Series 2) issued to Leviston Resources LLC (the “March Series 2 Warrant” and together with the March Series 1 Warrant, the “March Warrants”); |
| (x) | Amendment No. 1 to Series B Preferred Stock Purchase Warrant (Series 2) issued to Leviston Resources LLC, dated July 16, 2021; |
| (xi) | the Securities Purchase Agreement dated August 30, 2021, (the “August Securities Purchase Agreement”) by and among Creek Road Miners, Inc., Alpha Capital Anstalt, Bronfman Family Investment Partnership LLLP, Jeffrey Bronfman Revocable Living Trust, Kevin R. Contreras Family Trust, The Rosalinde and Arthur Gilbert Foundation, The 1998 Insurance Trust for Ashley Ziman, The 1998 Insurance Trust for Michele Ziman, The RSZ Trust, Melissa Ann Held Bordy GST Exempt Trust, Joseph Held GST Exempt Trust, Robert Held GST Exempt Trust, Citrus Hill Trust, Georgina Asset Management, LLC 401(k) PSP, and LAMA Investments LLC (the “August Purchasers”); |
| (xii) | the form of Common Stock Purchase Warrant, dated August 30, 2021, filed as exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on August 31, 2021 and executed by each of the August Purchasers (the “August Warrants”); |
| (xiii) | a certificate of the Secretary of the Company with respect to the approval of certain resolutions by the board of directors of the Company or a committee thereof (the “Resolutions”); |
| (xiv) | a certificate, dated as of April 19, 2021, from the Secretary of State of the State of Delaware certifying as to the existence and good standing of the Company in the State of Delaware (the “Good Standing Certificate”); |
| (xv) | the Prospectus; and |
| (xvi) | the Registration Statement. |
In addition to the foregoing, we have made such investigations of law as we have deemed necessary or appropriate as a basis for the opinions set forth herein.
Creek Road Miners, Inc.
September 30, 2021
Page Three
In such examination and in rendering the opinions expressed below, we have assumed, without independent investigation or verification, (i) the genuineness of all signatures on all agreements, instruments, corporate records certificates and other documents submitted to us; (ii) the authenticity and completeness of all agreements, instruments, corporate records, certificates and other documents submitted to us as originals; (iii) that all agreements, instruments, corporate records, certificates and other documents submitted to us as certified, electronic, facsimile, conformed, photostatic or other copies conform to originals thereof, and that such originals are authentic and complete; (iv) the legal capacity, competency and authority of all persons or entities (other than the Company) executing all agreements, instruments, corporate records, certificates and other documents submitted us; (v) the due authorization, execution and delivery of all agreements, instruments, corporate records, certificates and other documents by all parties thereto (other than the Company); (vi) that all agreements, instruments and other documents are the valid and binding obligations of each of the parties thereto, enforceable against such parties in accordance with their respective terms, and that no such agreements, instruments or documents submitted to us has been amended or terminated orally or in writing except as has been disclosed to us in writing; (vii) that the statements contained in the certificates and comparable documents of public officials, officers and representatives of the Company and other persons on which we have relied for the purposes of this opinion letter are true and correct; (viii) that there has not been any change in the good standing status of the Company from that reported in the Good Standing Certificate; and (ix) that each of the officers and directors of the Company has properly exercised his or her fiduciary duties.
As to all questions of fact material to this opinion letter, and as to the materiality of any fact or other matter referred to herein, we have relied (without independent investigation or verification) upon the representations of each party made in each of the March Securities Purchase Agreement, the March Amendment, the March Warrants, as amended, the August Securities Purchase Agreement and the August Warrants and the other documents and certificates delivered in connection therewith, certificates or comparable documents of officers, directors and representatives of the Company and certificates and records of public officials. We have assumed that, upon the issuance of the August 2021 Private Placement Shares, the March 2021 Private Placement Shares, the August Warrant Shares, the March Warrant Shares issuable upon the exercise of the March Warrants, the March Warrant Conversion Shares and the March Conversion Shares, the total number of shares of Series B Preferred Stock and Common Stock issued and outstanding will not exceed the total number of shares of Series B Preferred Stock and Common Stock that the Company is then authorized to issue under the Charter and the Amended and Restated Series B Certificate of Designation.
Our knowledge of the Company and its legal and other affairs is limited by the scope of our engagement, which scope includes the delivery of this opinion letter. We do not represent the Company with respect to all legal matters or issues. The Company employs other independent counsel and, to our knowledge, handles certain legal matters and issues without the assistance of independent counsel.
Based upon the foregoing, and in reliance thereon, and subject to the assumptions, limitations, qualifications and exceptions set forth herein, we are of the opinion that the issuance of:
| (i) | the March Warrant Conversion Shares have been duly authorized by the Company and, when issued and delivered upon conversion of the March Warrant Shares issued upon exercise of the March Warrants in accordance with the terms thereof, in the manner contemplated by the Registration Statement, the Prospectus, the Resolutions and the Amended and Restated Series B Certificate of Designation, will be validly issued, fully paid and nonassessable; |
| (ii) | the March Conversion Shares have been duly authorized by the Company and, when issued and delivered upon conversion of the March 2021 Private Placement Shares in the manner contemplated by the Registration Statement, the Prospectus, the Resolutions and the Amended and Restated Series B Certificate of Designation, will be validly issued, fully paid and nonassessable; |
Creek Road Miners, Inc.
September 30, 2021
Page Four
| (iii) | the August Warrant Shares have been duly authorized by the Company and, when issued and delivered upon exercise of the August Warrants in accordance with the terms thereof, in the manner contemplated by the Registration Statement, the Prospectus and the Resolutions, will be validy issued, fully paid and nonassessable; and |
| (iv) | the August 2021 Private Placement Shares have been duly authorized by the Company and, when issued and delivered in the manner contemplated by the Registration Statement, the Prospectus and the Resolutions, will be validly issued, fully paid and nonassessable. |
Without limiting any of the other limitations, assumptions, exceptions and qualifications stated or incorporated herein, we express no opinion with regard to the applicability or effect of the laws of any jurisdiction other than the General Corporation Law of the State of Delaware, as in effect on the date hereof.
This opinion letter deals only with the specific legal matters expressly addressed herein, and you should not infer any opinion that is not explicitly stated herein from any matter addressed in this opinion letter. This opinion letter is rendered solely in connection with the registration of the Shares for resale by the Selling Stockholders under the Registration Statement. This opinion is rendered as of the date hereof, and we assume no obligation to advise you or any other person with regard to any change after the date hereof in the circumstances or the law that may bear on the matters set forth herein after the effectiveness of the Registration Statement, even if the change may affect the legal analysis or a legal conclusion or other matters in this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the Prospectus. In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules or regulations of the Commission thereunder.
Yours very truly,
/s/ DLA Piper LLP (US)