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WHERE YOU CAN FIND MORE INFORMATION;
INCORPORATION BY REFERENCE
Available Information
We file reports, proxy statements and other
information with the SEC. Information filed with the SEC by us can be inspected and copied at the Public Reference Room maintained
by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may also obtain copies of this information by mail from the Public
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Washington, D.C. can be obtained by calling the SEC at 1-800-SEC-0330. The SEC also maintains a web site that contains reports,
proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address
of that website is http://www.sec.gov.
Our website address is https://creatd.com.
The information on our website, however, is not, and should not be deemed to be, a part of this prospectus.
This prospectus and any prospectus supplement
are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement.
The full registration statement may be obtained from the SEC or us, as provided below. Forms of the documents establishing the
terms of the offered securities are or may be filed as exhibits to the registration statement. Statements in this prospectus or
any prospectus supplement about these documents are summaries and each statement is qualified in all respects by reference to the
document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters.
You may inspect a copy of the registration statement at the SEC’s Public Reference Room in Washington, D.C. or through the
SEC’s website, as provided above.
Incorporation by Reference
The SEC’s rules allow us to “incorporate
by reference” information into this prospectus, which means that we can disclose important information to you by referring
you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus,
and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained
in a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus
to the extent that a statement contained in this prospectus modifies or replaces that statement.
We incorporate by reference our documents
listed below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended, which we refer to as the “Exchange Act” in this prospectus, between the date of this prospectus
and the termination of the offering of the securities described in this prospectus. We are not, however, incorporating by reference
any documents or portions thereof, whether specifically listed below or filed in the future, that are not deemed “filed”
with the SEC, including any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant
to Item 9.01 of Form 8-K.
This prospectus and any accompanying prospectus
supplement incorporate by reference the documents set forth below that have previously been filed with the SEC:
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Our Annual Report
on Form 10-K for the year ended December 31, 2020, filed with the SEC on March 31, 2021.
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All reports and other documents we subsequently
file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering, including all
such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of
the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated
by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You may request a free copy of any of the
documents incorporated by reference in this prospectus (other than exhibits, unless they are specifically incorporated by reference
in the documents) by writing or telephoning us at the following address:
Creatd, Inc.
2050 Center Avenue Suite 640
Fort Lee, NJ 07024
Telephone: (201) 258-3770
Exhibits to the filings will not be sent,
however, unless those exhibits have specifically been incorporated by reference in this prospectus and any accompanying prospectus
supplement.
THE COMPANY
Overview
Creatd, Inc. (“CRTD,”
“the Company,” or “Creatd”) is a creator-first technology company and the parent company of the Vocal platform.
Our mission is to empower creators, entrepreneurs, and brands through technology and partnership. We accomplish this through Creatd’s
three main business pillars: Vocal Ventures, Creatd Partners, and our newest initiative, Recreatd. At its core, Creatd centers around
the philosophy that creators are the driving force that propels success in the digital realm. This philosophy is represented by a framework
we call the Creatd Cycle, which operates on the premise that creators produce content that attracts audiences, who in turn attract brands
who are interested in reaching those audiences and the ability to generate new installations around bespoke ecosystems such as health
and wellness, sports, and education.
Creatd’s first
pillar, Vocal Ventures, houses our proprietary technology platforms, including Creatd’s flagship product, the Vocal platform, and
its 36 wholly owned-and-operated creator communities. Through Vocal, creators can create and share their stories in a way that helps
them get discovered by their ideal audiences and be rewarded for their creativity. Similarly, brands can access their ideal consumers
and drive conversions for their products and services. The Vocal platform’s scalable and unique underlying agile framework lends
itself well to future acquisitions and white-label opportunities for Creatd’s technology because of the ease with which other platforms
can be integrated into our ecosystem.
Creatd Partners, Creatd’s second pillar, houses our brand-oriented initiatives, including our agency businesses, Vocal for Brands
and Seller’s Choice, as well as its corporate ventures and investments. Both of these agencies serve a multitude of clients, while
the venture arm looks to make direct investments in the ones that have significant upside opportunity. Creatd Partners pairs Creatd’s
resources and Vocal’s proprietary technology, which were built to simultaneously amplify creators’ discoverability and potential
reward and help direct-to-consumer brands achieve conversions and reach their target audiences, while generating value for all of Creatd’s
stakeholders.
Recreatd is the pillar which houses Creatd’s
intellectual property and legacy media assets, including acquired artwork, photographs and media memorabilia. Recreatd represents an
initiative by Creatd to revitalize transmedia content, utilizing Vocal Ventures’ technology, data, and marketing capabilities to
reboot archival media assets and e-commerce properties. Creatd has a history of successfully executing such acquisition and assimilation
projects, including its resuscitation of General Media properties such as the iconic women’s magazine, Viva, into digital communities
and absorbing once-defunct content communities like Creators Media (which at one time was valued at $50MM). Creatd has a vast collection
of intellectual property and legacy content, including a documentary about the life of Bob Guccione directed by Barry Avrich; Till
Human Voices Wake Us, a short film starring Lindsay Lohan and directed by famed photographer Indrani; No One’s
Pet, the biography of Penthouse Pet Sheila Kennedy authored by renown film critic Glenn Kenny; and The Mind’s
Eye, The Art of Omni. The Company’s ability to leverage its technology to revitalize this content represents a significant
value proposition for media companies and publishers that are sitting on vast collections of content that are of supreme quality but
are not in a suitable format for today’s consumer.
Vocal
Vocal, Creatd’s
flagship product, is a robust, proprietary technology platform that provides best-in-class tools, safe and curated communities, and monetization
opportunities that enable creators to find a receptive audience and get rewarded. Through Vocal, content creators can get discovered
and monetize their content by connecting to their ideal audiences and partnering with the brands that want to reach those audiences.
Since its initial
launch in 2016, Vocal has grown to be one of the fastest growing communities for content creators of all kinds, including writers, musicians,
podcasters, photographers, and more; as of March 2021, Vocal has reached over 900,000 freemium creators and over 20,000 Vocal+ paid subscribers
across its 36 owned and operated niche communities.
Vocal provides a
large stage for creators to connect with fans and find new audiences. In addition to enabling access to millions of unique monthly visitors,
the platform provides creators with a full suite of tools and services for content creation, discovery, distribution, and monetization,
including:
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Easy-to
use, rich media content editor: Vocal’s storytelling tools enable creators to produce beautiful and engaging stories
in a simple, user-friendly interface, and incorporate rich-media content of all kinds, including streaming content, photos, videos,
podcasts, product links, written text, and more. Vocal’s open canvas content creation editor makes it easy to create high-quality
and engaging stories, and is a cost effective alternative to managing a blog content management system (CMS).
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Numerous Monetization
Features: Both of Vocal’s membership tiers–Vocal freemium and the Vocal+ premium tier – provide multiple
monetization opportunities for creators. Creators can earn money i) every time their story is read, ii) by competing in Challenges,
iii) by receiving ‘tips’ and ‘bonuses’ iv) by collaborating on branded content campaigns through the company’s
in-house agency, Vocal for Brands. For freemium members, content ‘reads’ are monetized at a rate of $3.80 per 1,000 reads
(calculated based on time on page, scrolling behavior, and other internal metrics), whereas Vocal+ members monetize at $6.00 per
1,000 reads. These rates are subject to change based on market trends or the introduction of additional features and plan tiers.
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Brand-safe advertising
platform: Vocal was designed to target consumers in an authentic, non-interruptive way. Brand partnerships and collaborations
allow companies tap into the power of Vocal through campaign-optimized stories, authored by real Vocal creators, that build brand
affinity, trust, and drive sales.
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Transparent Performance
Data: Creators can view their “Stats” at any time to view their individual performance data, such as how many
Reads a given story received, how much money they have earned, and how many Tips, Bonuses, or ‘Likes,’ they received.
Additionally, Vocal users have the ability to view key metrics such as community-specific data and Vocal+ membership data.
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Valuable Audience: The
nature of Vocal’s genre-specific (niche) community structure is such that it generates a positively selected audience, a quality
which makes Vocal an attractive prospect for creators and brands alike. In a niche community, audiences are inherently more likely
to be interested in the particular content housed in that community.
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Vocal+ is Creatd’s
premium subscription membership program. Vocal+ members pay a membership fee for premium features, including receiving increased earnings
for their content, reduced platform processing fees for Tips received, a Vocal+ badge on their creator page, eligibility to participate
in exclusive Vocal+ Challenges, and more. Vocal+ offers a strong value proposition for new creators, as well as the over 900,000 freemium
users registered to Vocal. Creators may sign up for a Vocal+ membership when they create an account, or they can upgrade an existing
Vocal Free account to a Vocal+ account at any time. The current cost of a Vocal+ membership is either $9.99 per month or $99 annually.
From time to time, the Company offers Vocal+ subscriptions at a discount for a predetermined number of months as a promotion for new
subscribers.
Vocal for Brands
Digital audiences have become increasingly
wary of traditional display and programmatic advertising tactics. Intrusive ads like pop-ups have proven to disrupt the consumer experience,
leading to trends such as the fact that over 25% of internet users have ad blockers installed. Brands are actively seeking trustworthy
and safe platforms like Vocal to drive engagement through non-interruptive brand storytelling and deliver invaluable performance metrics
that help optimize their marketing efforts.
Creatd’s internal content studio, Vocal
for Brands, pairs leading brands with authentic creators to produce marketing campaigns that are non-interruptive, engaging, and direct-response
driven. The key value propositions for brands include:
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Authentic Storytelling: Our
internal data group partners brands with real Vocal creators to tell their brand’s story in a way that is both engaging and
trustworthy. In addition, brands can opt to sponsor a Challenge, which effectively yield a collection of crowdsourced branded content
for brands and help them reach a wider audience.
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Valuable Audience: Vocal’s
first-party data provides an opportunity to create highly targeted and segmented audiences to promote branded content. Most importantly,
Vocal’s technology helps brands target the right audience by utilizing and applying that first-party data.
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Transparent Analytics: For
every campaign we produce, our brand clients have access to story performance data, engagement data, behavioral data, and interest
data. Brands can apply this data to further increase awareness and optimize audience targeting.
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Vocal’s first-party data enables our
team to create highly targeted and segmented audiences for Vocal for Brands campaigns, and help the brand reach their ideal audience.
Brands can access story performance data, engagement data, behavioral data, and sentiment data, all of which is used to further optimize
the campaign’s success. The combination of Vocal’s hyper-engaged audiences, user-generated communities, and brand-safe environment
help brands achieve maximum ROAS (return on ad spend).
Vocal for Brands
typically collects fixed fees ranging from $10,000 to $110,000, depending on campaign duration and specific client objectives. To date,
Vocal for Brands’ client roster includes up-and-coming direct to consumer (DTC) brands such as IAC’s Vimeo, Moleskine, New
York Post’s Decider, Lull, Daily Harvest, Cleancult, and more.
With the introduction
of Challenges in early first quarter 2020, brands can now tap into Vocal’s network content creators and encourage them to interact
with, learn about and promote their brand while benefiting from Vocal’s brand-safe, moderated, and curated environment. Vocal Challenges
have a unique ability to capture the hearts and minds of the creative community and drive meaningful engagement. Challenges combine thought-provoking
story prompts and sizable reward potential, which work to inspire creators and drive them toward participation. Brands can similarly
capitalize on this combined effect by collaborating with Vocal on a sponsored Challenge, prompting the creation of high-quality stories
that are centered around the brand’s mission and further disseminated through creators’ respective social channels and promotional
outlets.
Seller’s Choice
In addition to Vocal for Brands, Creatd supports
brands by providing managed and performance marketing services through Seller’s Choice. an in-house marketing agency for DTC (direct-to-consumer)
and e-commerce clients. Acquired by Creatd in September 2019, Seller’s Choice provides direct-to-consumer brands with design, development,
strategy, and sales optimization services. Its status as an Amazon Solution Provider and its weighty operational structure made it an
ideal candidate for acquisition in late 2019. Creatd’s business model is built to absorb distressed operational infrastructures,
integrate the few best components, and shed the non-essential costs.
Creatd Partners
Creatd Partners is the Company’s corporate venture arm, as well as the business division that encompasses management of Seller’s
Choice and Vocal for Brands. Creatd Partners invests in qualified brands who are aligned with our corporate mission, such as direct-to-consumer
brands, digital platforms, and technologies that support entrepreneurs and the creator economy. Creatd Partners was established with
the aim of nurturing high-potential, early-stage companies that can meaningfully benefit by leveraging Creatd’s technology, resources
and proven capacity to optimize visibility, reach, and conversions for direct-to-consumer products and services. Creatd Partners investments
are subject to the completion of rigorous due diligence and independent valuation assessment and may encompass a combination of financial
and operational support in exchange for an equity stake in the business.
Creatd Partners’ first investment is
Plant Camp, a direct-to-consumer food company that creates healthy and nutritional upgrades to classic foods and was launched in December
2020. The Company has made three further investments, the most notable of which is an equity investment in the health and wellness DTC
beverage space. Additionally, Creatd Partners is currently exploring future opportunities that fit its criteria and risk profile, seeking
partner companies that combine a quality product, seasoned founders, and the ability to leverage Creatd’s platform technology.
Moderation and
Compliance
One of the key differentiating
factors between Vocal and most other user-generated content platforms is the fact that each story submitted to Vocal is run through the
Company’s proprietary moderation process before it goes live on the platform. The decision to implement moderation into the submission
process was in direct response to the rise of misinformation and bad actors on many social platforms. In response to these inherent pitfalls
within the content landscape, Vocal’s proprietary moderation system combines the algorithmic detection of copyrighted material,
hate speech, graphic violence, and nudity, and human-led curation to ensure the quality and safety of each story published on Vocal,
thus fostering a safe and trustworthy environment for creators, audiences, and brands. Moderation and compliance are more important than
ever in a world where ambiguity can systematically damage value. Vocal’s enforcement of community guidelines and emphasis on content
moderation protects the platform, its creators, and Creatd shareholders.
Trust and safety
are paramount to the Vocal ecosystem. We follow best practices when handling personally identifiable information, with guidance from
the European Union’s General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), and the Digital Millennium
Copyright Act (DMCA).
Platform Compliance
Policies include:
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Human-led, technology
assisted moderation of every story submitted;
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Algorithmic detection
of hate speech, nudity, and copyright infringement;
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Brand, creator, and
audience safety enforced through community watch; and
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The rejection of what
we consider toxic content, with the understanding that diverse opinions are encouraged.
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Technology Development
Vocal’s proprietary technology is built
on Keystone, the same underlying open-source framework used by industry-leaders such as Atlassian, a $43-billion Australian technology
company. Some of the key differentiating elements of Vocal’s technology are speed, sustainability, and scalability. The Company
continues to invest heavily in research and development to continuously improve and innovate its platform, with the goal of optimizing
the user experience for creators. Vocal’s architecture allows it to do more with less cost and provides a model capable of turning
a profit.
Additionally, the Vocal platform and its underlying
technology allows us to maintain an advantageous capital-light infrastructure. By using cloud service providers, we are able to focus
on platform and revenue growth rather than building and maintaining the costly internal infrastructures that have materially affected
so many legacy media platforms. Vocal’s technology has been specifically designed and built to scale without a material corresponding
increase in operational costs. While our users can embed rich media, such as video, audio, and product links, into their Vocal stories,
the rich media content is hosted elsewhere (such as YouTube, Instagram, Vimeo, Shopify, Spotify, etc.). Thus, our platform can accommodate
rich media content of all kinds without bearing the financial or operational costs associated with hosting the rich media itself. In
addition to the benefits this framework affords to the Company, it is the additional benefit to our content creators, in that a creator
can increase their monetization; for example, a creator can embed their YouTube video into a Vocal story and thus derive earnings from
both platforms when their video is viewed.
Application of
First-Party Data
Creatd’s business
intelligence and marketing teams identify and target individual creators, communities, and brands, utilizing empirical data harnessed
from the Vocal platform. The team’s ability to apply its proprietary first-party data works to reduce acquisition costs for new
creators and to help provide brands with conversions and an ideal targeted audience. In this way, our ability to apply first-party data
is one of the value-drivers for the Company and the key advantages of its closed ecosystem strategy, which we refer to as the Creatd
Cycle.
In its simplest definition,
first-party data is data that you collect directly from your customers. Even the most simplistic blog website is collecting some degree
of first-party data; Creatd’s edge is in its application of that data. Our organization is constantly collecting a tremendous amount
of first-party behavioral data extracted from the Vocal platform. To date, we have collected hundreds of millions of data points around
our customers and our audiences.
Importantly, we do
not sell that data, that being a common monetization opportunity for many other businesses. Instead, we use our collected first-party
data for the purposes of bettering the platform. Specifically, our data helps us understand the behaviors and attributes that are common
among the creators, brands, and audiences within our ecosystem. We then pair our first-party Vocal data with third-party data from distribution
platforms such as Facebook and Snapchat to provide a more granular profile of our creators, brands, and audiences.
It is through generating this valuable first-party
data that we can continually enrich and refine our targeting capabilities for branded content promotion and creator acquisition, and
specifically, to reduce our creator acquisition costs (CAC) and subscriber acquisition costs (SAC). Lower acquisition costs combined
with increasing lifetime value (LTV) per subscriber, means that our enterprise value is accelerating each time we acquire a new user.
We anticipate the lifetime value of our subscribers to increase as we introduce more features that cater to the needs of our creators.
It is Vocal’s unique capability to collect and apply first-party behavioral data that allows us to simultaneously increase the
LTV of our subscribers over time, while lowering the cost to acquire them. In fact, the link between incentivizing creators and lowering
creator acquisition costs is a primary focus of the data science team, and an important consideration for every feature we develop for
the Vocal platform.
Competition
The idea for Vocal
came as a response to what Creatd’s founders recognized as systemic flaws inherent to the digital media industry and its operational
infrastructures. Depreciating value of digital media business models built on legacy technology platforms created a unique opportunity
for development of a creator-centric platform that could appeal to a global community and, at the same time, be capable of acquiring
undervalued complimentary technology assets.
Creatd’s founders
built the Vocal platform upon the general thesis that a closed and safe ecosystem utilizing first-party data to increase efficiencies
could create a sustainable and defensible business model. Vocal was strategically developed to provide value for content creators, readers,
and brands, and to serve as a home for the ever-increasing amount of digital content being produced and the libraries of digital assets
lying dormant.
Vocal is most commonly discussed as a combination
of:
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Medium, a platform for
writers built by former Twitter founder Ev Williams;
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Reddit, a social news
aggregation, web content rating, and discussion website; and
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Patreon, a membership
platform that provides business tools for content creators to run a subscription service.
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Importantly, Creatd does not see Vocal as
a substitute or competitor to segment-specific content platforms, such as Vimeo, YouTube, Instagram, or SoundCloud. We don’t want
to replace anyone; we built Vocal to be accretive to the entire digital ecosystem. In fact, one of the most powerful components of our
technology is the fact that Vocal makes it easy for creators to embed their existing published content, including videos, songs, podcasts,
photographs, and more, directly into Vocal. We see this as a growth opportunity by building partnerships with the world’s greatest
technology companies and to further spread our roots deeper into the digital landscape.
Revenue Model
Creatd’s revenues
are primarily generated through:
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Creator Subscriptions: Vocal+
subscription offering provides creators with increased monetization and access to premium tools and features. At approximately $10
per month, Vocal+ offers creators a strong value proposition for freemium users to upgrade, while providing a scalable source of
monthly recurring gross revenue for Creatd. Management projects 100,000 paid subscribers in 2021.
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Marketing Partnerships: Vocal
partners with leading brands and creators through its internal content studio, Vocal for Brands, to produce influencer and content
marketing campaigns, including sponsored Challenges, that leverage the power of Vocal. Branded stories and Challenges are optimized
for conversions, distributed to a targeted audience based on Vocal’s first-party data, and are optimized for conversions to
maximize revenue growth.
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Managed Services: Creatd’s
in-house marketing agency for e-commerce, Seller’s Choice, provides direct-to-consumer brands with design, development, strategy,
and sales optimization services.
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Platform Processing
Fees and Microtransactions: With Tipping and other types of microtransactions, audiences can engage and support their favorite
Vocal creators by actively investing in their creativity. Vocal takes a platform processing fee on all transactions. Each Tip sent
on Vocal generates revenue for the Company in the form of platform processing fees. For Vocal Free creators, we retain a 7% platform
processing fee for every Tip exchanged. For Vocal+ creators, we retain a 2.9% platform processing fee.
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Affiliate sales: Vocal
generates revenue through affiliate marketing relationships, which pays the Company a percentage of purchases made on our platform.
Affiliate relationships include Amazon, Skimlinks, Tune, and more. This represents a unique opportunity in the post-pandemic environment
where brands need expansive distribution pipelines such as Vocal to reach broader audiences.
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E-commerce: Our
e-commerce strategy involves revitalizing archival imagery and media content in dormant legacy portfolios. Our curation and data
capabilities have helped us create scalable and definable value for our internal collection of media assets through financing, trademarking,
licensing, and production opportunities. Creatd has an exclusive license to leverage the stories housed on Vocal, reimagining them
for films, episodic shows, games, graphic novels, collectibles, books, and more.
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Growth Strategy:
Continued growth
is likely to be achieved by focusing on the following key areas:
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Creator Growth: Vocal
brings new creators, their audience, and brands to its platform through organic growth, performance marketing, and brand-building
campaigns that drive awareness. As the Vocal team continues to collect first-party behavioral data, we are able to further refine
an ideal user profile and hone a specific targeting strategy to effectively scale the platform’s creator base. Our product
roadmap includes new features that will work to incentivize creators to help us expand the Vocal network organically; upcoming features
include creator referrals and gated content, which will enable creators to utilize Vocal’s microtransaction capabilities to
charge recurring fees for exclusive content. With these new features, creators will have further opportunities to get discovered
and earn on Vocal, which works to the benefit of the entire platform.
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Brand Partnerships: Continued
investment in new product offerings for brand storytelling on Vocal with the goal of increasing the value to brands in the form of
analytics, audience engagement, and conversion data for their products and services. The Vocal for Brands in-house content studio
is constantly evolving in order to elevate brand relationships, both qualitatively and quantitatively.
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Licensing and Transmedia
Opportunities: In collaboration with other production and media companies, as well as with our expanding user base, we look
for content that can be leveraged for adaptation to film, television, digital shorts, books, and comic series. We believe that Vocal’s
ever-expanding community of creators and influencers affords us with the unique opportunity to cultivate these relationships. This
initiative is referred to by the Company as Recreatd.
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White Label Opportunities: White-labeling
Vocal’s underlying platform architecture can be utilized for application in a range of industries, including use by sports
franchises, trade companies, education organizations, companies in the financial sector, and others. An example of a white label
installation of Vocal currently on our drawing board is a platform called Give. The idea behind Give is to borrow Vocal’s
topic-specific community structure and adapt it for the non-profit sector. The Give platform would function as a network of vetted,
verified organizations for which creators can raise awareness, funding or discussions using Vocal’s existing features like
storytelling tools, community engagement, and microtransactions. Give will provide charities with the tools and resources to capture
attention and donations in what is a saturated non-profit space.
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Vocal Global: Vocal
Global is Creatd’s new market expansion strategy for applying Vocal’s technology to international platform opportunities.
While the U.S., U.K., and Canada represent the vast majority of our audience, we believe there will be significant demand for our
product in overseas markets–including Asia, the Middle East, and South America–particularly for foreign language installations
of the product, an initiative which Creatd refers to as “Content Without Borders.”
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Acquisition Strategy
Creatd’s hybrid finance and design culture is key to its
acquisition strategy. Acquisition targets are companies that meet a set of opportunistic or financial standards or that are part of specific
digital environments that are accretive and can seamlessly integrate into Creatd’s existing revenue lines. Creatd will continue
to make strategic acquisitions when presented with opportunities that are in the interest of shareholder value.
Recent Developments
Nasdaq Letter of Reprimand
On January 4, 2021, the Company received a letter
from the staff of The Nasdaq Capital Market (the “Exchange”) notifying the Company that the Exchange had determined to delist
the Company’s common stock and warrants from the Exchange based on the Company’s non-compliance with the Exchange’s
(i) $5 million stockholders’ equity requirement for initial listing pursuant to Nasdaq Listing Rule 5505(b), (ii) the $2.5 million
stockholders’ equity requirement or any of the alternatives for continued listing pursuant to Nasdaq Listing Rule 5550(b), and (iii)
the Company’s failure to provide material information to the Exchange pursuant to Nasdaq Listing Rule 5250(a)(1).
On February 11, 2021, the Company met with the Exchange’s
Hearings Panel (the “Panel”) with respect to such determination, in accordance with the Exchange’s rules and, pursuant
to such request by the Company to appeal, the delisting of the Company’s securities and the Form 25 Notification of Delisting filing
was stayed pending the Panel’s decision.
On March 9, 2021, the Exchange notified the Company
that the Panel had determined to continue the listing of the Company on the Exchange. Notwithstanding the Panel’s determination
to continue the listing of the Company’s securities on the Exchange, the Panel issued a public reprimand letter to the Company,
pursuant to Listing Rule 5815(c)(1)(D), based on its finding “that the Company failed to meet the initial listing criteria with
respect to stockholders’ equity and failed to provide Nasdaq with material information with respect to that deficiency.” Specifically,
the Panel found that the Company failed to comply with Listing Rule 5250(a)(1), requiring it to notify Nasdaq of certain significant developments
that led to the Company’s prior representations about its ability to satisfy the initial listing requirements being inaccurate.
In reaching its determination to continue the listing of the Company on Nasdaq, the Panel acknowledged that the Company has since demonstrated
compliance with the initial listing requirement for stockholders’ equity and all other applicable initial listing requirements.
The Panel also determined that the violations were inadvertent and that the Company had relied on advice of counsel at the time in its
interactions with the Nasdaq staff (“Staff”). The Panel also acknowledged the Company’s efforts to implement structural
changes within the Company to avoid similar misstatements in the future and that would allow for proper accounting and disclosure on an
ongoing basis.
A Panel Monitor has been implemented under Listing
Rule 5815(d)(4)(A) for a period of one year from the date of the Letter. In the event that the Company becomes deficient with respect
to any continued listing requirement, the Company will not be afforded the opportunity to submit a compliance plan for Staff’s consideration
and Staff will issue a Delist Determination Letter and promptly schedule a new hearing under Listing Rule 5810(c)(2), at which the Company
may present a compliance plan for the Panel’s consideration. In the event of a new hearing, any suspension or delisting action would
be stayed pending the completion of the hearings process and the expiration of any additional extension period granted by the Panel following
the hearing.
Sale of Series E Convertible Preferred Stock
On December 29, 2020 (the “Effective Date”),
the Company entered into securities purchase agreements (the “Purchase Agreement”) with thirty-three accredited investors
(the “Investors”), whereby, at the closing, the Investors have agreed to purchase from the Company an aggregate of (i) 7,778
shares of the Company’s Series E Convertible Preferred Stock, par value $0.001 per share (the “Series E Preferred Stock”);
and (ii) 2,831,715 warrants (the “Warrants”) to purchase shares of the Company’s common stock, par value $0.001 per
share (the “Common Stock”). The Series E Preferred Stock is convertible into a total of 1,887,810 shares of Common Stock (the
“Conversion Shares”). The combined purchase price of one Conversion Share and one and a half Warrant was $4.12. The aggregate
purchase price for the Series E Preferred Stock and Warrants was $7,777,777.77. The closing for the purchase of 7,738 shares of Series
E Preferred Stock, convertible into 1,878,101 shares of Common Stock, and 2,817,152 Warrants occurred on between December 29 and December
31, 2020. The closing for the remaining 40 shares of Series E Preferred Stock, convertible into 9,709 shares of Common Stock, and 14,563
Warrants occurred on January 4, 2021.
Appointment of New Director
On October 27, 2020, the Board of the Company increased
the size of the Board to six members and appointed LaBrena Martin to fill that newly-created vacancy and serve as a member of the Board.
In connection with her appointment to the Board, the Board appointed Ms. Martin to serve as a member of the Audit and Compensation Committees
and as the Chair of the Nominating and Corporate Governance Committee. Ms. Martin will hold office until the next annual meeting of stockholders,
or until her successor is duly elected and qualified or her earlier resignation or removal.
Appointment of Chief Operating Officer
Effective September 28, 2020, the board of directors
of the Company appointed Laurie Weisberg as Chief Operating Officer of the Company. Ms. Weisberg also currently serves as a member of
the Company’s board of directors.
Underwritten Offering and Uplisting to Nasdaq
On September 15, 2020, Company consummated an underwritten public
offering (the “Offering”) of 1,725,000 units of securities (the “Units”), with each Unit consisting of
(i) one share of common stock, par value $0.001 per share, and (ii) one warrant to purchase one share
of Common Stock (the “Warrants”). The Offering was conducted pursuant to an Underwriting Agreement, dated September
10, 2020, by and between the Company and The Benchmark Company, LLC, acting as the representative (the “Representative”)
of the several underwriters named therein (the “Underwriting Agreement”). In connection with the Offering, the Company
granted the underwriters a 45-day option to purchase up to 258,750 shares of Common Stock and/or 258,750 Warrants to purchase Common
Stock to cover over-allotments, if any.
The public offering price per Unit was $4.50. The shares of
Common Stock and Warrants were issued separately and are immediately separable upon issuance. Each Warrant represents the right
to purchase one share of Common Stock at an exercise price of $4.50 per share, expiring 5 years from the date of issuance.
On September 15, 2020, the Company entered into a Warrant Agreement
with Pacific Stock Transfer (“Pacific Stock”), appointing Pacific Stock as Warrant Agent for the Warrants for purposes
of the Offering (the “Warrant Agreement”). A registration statement on Form S-1 (File No. 333-238514) (the “Registration
Statement”) relating to the Offering was initially filed with the U.S. Securities and Exchange Commission (the “SEC”)
on May 20, 2020, and was declared effective on September 10, 2020. Upon the closing of the Offering, Pacific Stock issued
the shares of Common Stock and Warrants comprising the Units, which trade on The Nasdaq Capital Markets under the symbols CRTD
and CRTDW, respectively. The gross proceeds to the Company from the Offering, before deducting underwriting discounts and
commissions and other estimated Offering expenses, and excluding the exercise of any Warrants, was approximately $7.7625 million.
On October 6, 2020, the Underwriters partially
exercised the over-allotment option and on October 8, 2020, purchased an additional 258,750 Warrants, generating gross proceeds,
before deducting underwriting discounts and commissions, of $2,587.50.
The 258,750 Warrants were issued pursuant
to the registration statement on Form S-1 (File No. 333-238514) initially filed with the U.S. Securities and Exchange Commission
on May 20, 2020 and declared effective on September 10, 2020.
Our Corporate History
Creatd, Inc., formerly Jerrick Media Holdings, Inc. (“we,”
“us,” the “Company,” or “Creatd”), is a technology company focused on the development of digital
communities, marketing branded digital content, and e-commerce opportunities. Creatd’s content distribution platform, Vocal,
delivers a robust long-form, digital publishing platform organized into highly engaged niche-communities capable of hosting all
forms of rich media content. Through Creatd’s proprietary algorithm dynamics, Vocal enhances the visibility of content and
maximizes viewership, providing advertisers access to target markets that most closely match their interests.
The Company was originally incorporated under the laws of the
State of Nevada on December 30, 1999 under the name LILM, Inc. The Company changed its name on December 3, 2013 to Great Plains
Holdings, Inc. (“GTPH”) as part of its plan to diversify its business.
On February 5, 2016 (the “Closing Date”), GTPH,
GPH Merger Sub, Inc., a Nevada corporation and wholly-owned subsidiary of GTPH (“Merger Sub”), and Jerrick Ventures,
Inc., a privately-held Nevada corporation headquartered in New Jersey (“Jerrick”), entered into an Agreement and Plan
of Merger (the “Merger”) pursuant to which the Merger Sub was merged with and into Jerrick, with Jerrick surviving
as a wholly-owned subsidiary of GTPH (the “Merger”). GTPH acquired, pursuant to the Merger, all of the outstanding
capital stock of Jerrick in exchange for issuing Jerrick’s shareholders (the “Jerrick Shareholders”), pro-rata,
a total of 475,000 shares of GTPH’s common stock. In connection therewith, GTPH acquired 33,415 shares of Jerrick’s
Series A Convertible Preferred Stock (the “Jerrick Series A Preferred”) and 8,064 shares of Series B Convertible Preferred
Stock (the “Jerrick Series B Preferred”).
In connection with the Merger, on the Closing Date, GTPH and
Kent Campbell entered into a Spin-Off Agreement (the “Spin-Off Agreement”), pursuant to which Mr. Campbell purchased
from GTPH (i) all of GTPH’s interest in Ashland Holdings, LLC, a Florida limited liability company, and (ii) all of GTPH’s
interest in Lil Marc, Inc., a Utah corporation, in exchange for the cancellation of 39,091 shares of GTPH’s Common Stock
held by Mr. Campbell. In addition, Mr. Campbell assumed all debts, obligations and liabilities of GTPH, including any existing
prior to the Merger, pursuant to the terms and conditions of the Spin-Off Agreement.
Upon closing of the Merger on February 5, 2016, the Company
changed its business plan to that of Jerrick.
Effective February 28, 2016, GTPH entered into an Agreement
and Plan of Merger (the “Statutory Merger Agreement”) with Jerrick, pursuant to which GTPH became the parent company
of Jerrick Ventures, LLC, a wholly-owned operating subsidiary of Jerrick (the “Statutory Merger”) and GTPH changed
its name to Jerrick Media Holdings, Inc. to better reflect its new business strategy.
On September 11, 2019, the Company acquired 100% of the membership
interests of Seller’s Choice, LLC, a New Jersey limited liability company (“Seller’s Choice”). Seller’s
Choice is digital e-commerce agency based in New Jersey (see Note 4).
On September 9, 2020, the Company filed a certificate of amendment
with the Secretary of State of the State of Nevada to change our name to “Creatd, Inc.”, which became effective on
September 10, 2020.
RISK FACTORS
Investment in any securities offered pursuant
to this prospectus and the applicable prospectus supplement involves risks. You should carefully consider the risk factors incorporated
by reference to our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form
8-K we file after the date of this prospectus, and all other information contained or incorporated by reference into this prospectus,
as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in the applicable prospectus
supplement before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or part of your
investment in the offered securities.
SPECIAL NOTICE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus contains forward-looking
statements that involve risks and uncertainties, principally in the sections entitled “Risk Factors.” All statements
other than statements of historical fact contained in this prospectus, including statements regarding future events, our future
financial performance, business strategy and plans and objectives of management for future operations, are forward-looking statements.
We have attempted to identify forward-looking statements by terminology including “anticipates,” “believes,”
“can,” “continue,” “could,” “estimates,” “expects,” “intends,”
“may,” “plans,” “potential,” “predicts,” “should,” or “will”
or the negative of these terms or other comparable terminology. Although we do not make forward looking statements unless we believe
we have a reasonable basis for doing so, we cannot guarantee their accuracy. These statements are only predictions and involve
known and unknown risks, uncertainties and other factors, including the risks outlined under “Risk Factors” or elsewhere
in this prospectus, which may cause our or our industry’s actual results, levels of activity, performance or achievements
expressed or implied by these forward-looking statements.
Forward-looking statements should not be
read as a guarantee of future performance or results, and will not necessarily be accurate indications of the times at, or by which,
that performance or those results will be achieved. Forward-looking statements are based on information available at the time they
are made and/or management’s good faith belief as of that time with respect to future events, and are subject to risks and
uncertainties that could cause actual performance or results to differ materially from what is expressed in or suggested by the
forward-looking statements.
Forward-looking statements speak only as
of the date they are made. You should not put undue reliance on any forward-looking statements. We assume no obligation to update
forward-looking statements to reflect actual results, changes in assumptions or changes in other factors affecting forward-looking
information, except to the extent required by applicable securities laws. If we do update one or more forward-looking statements,
no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities
as set forth in the applicable prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital
stock is not complete and may not contain all the information you should consider before investing in our capital stock. This description
is summarized from, and qualified in its entirety by reference to, our Second Amended and Restated Articles of Incorporation and
Amended and Restated Bylaws, which have been publicly filed with the SEC. See “Where You Can Find More Information; Incorporation
by Reference.”
The Company is authorized to issue 120,000,000
shares of capital stock, par value $0.001 per share, of which 100,000,000 are shares of common stock and 20,000,000 are shares
of “blank check” preferred stock.
On August 13, 2020, we filed a certificate
of amendment to our Second Amended and Restated Articles of Incorporation (the “Amendment”), with the Secretary of
State of the State of Nevada to effectuate a one-for-three (1:3) reverse stock split (the “August 2020 Reverse Stock Split”)
of our common stock without any change to its par value. The Amendment became effective on August 17, 2020. No fractional shares
were issued in connection with the August 2020 Reverse Stock Split as all fractional shares were rounded down to the next whole
share.
Common Stock
The holders of the Company’s common
stock are entitled to one vote per share. In addition, the holders of the Company’s common stock will be entitled to receive
dividends ratably, if any, declared by the Company’s board of directors out of legally available funds; however, the current
policy of the board of directors is to retain earnings, if any, for operations and growth. Upon liquidation, dissolution or winding-up,
the holders of the Company’s common stock are entitled to share ratably in all assets that are legally available for distribution.
The holders of the Company’s common stock have no preemptive, subscription, redemption or conversion rights. The rights,
preferences and privileges of holders of the Company’s common stock are subject to, and may be adversely affected by, the
rights of the holders of any series of preferred stock, which may be designated solely by action of the board of directors and
issued in the future.
Warrants
The holders of
the Company’s Warrants are entitled to purchase one share of our common stock at a price equal to $4.50 per share, subject
to adjustment as discussed below, at any time commencing on date of issuance (the “Issuance Date”) and terminating
at 5:00 p.m., New York City time, on the fifth (5th) anniversary of the Issuance Date.
The warrants will
be issued in registered form under a warrant agent agreement (the “Warrant Agent Agreement”) between us and our warrant
agent, Pacific Stock Transfer (the “Warrant Agent”). The Company and the Warrant Agent may amend or supplement the
Warrant Agent Agreement without the consent of any holder for the purpose of curing any ambiguity, or curing, correcting or supplementing
any defective provision contained therein or adding or changing any other provisions with respect to matters or questions arising
under the Warrant Agent Agreement as the parties thereto may deem necessary or desirable and that the parties determine, in good
faith, shall not adversely affect the interest of the holders. All other amendments and supplements shall require the vote or written
consent of holders of at least 50.1%. The exercise price and number of shares of common stock issuable upon exercise of the warrants
may be adjusted in certain circumstances, including in the event of a stock dividend, extraordinary dividend on or recapitalization,
reorganization, merger or consolidation.
The warrants may
be exercised upon surrender of the warrant certificate on or prior to the expiration date at the offices of the Warrant Agent,
with the exercise form attached to the warrant certificate completed and executed as indicated, accompanied by full payment of
the exercise price, by certified or official bank check payable to us, for the number of warrants being exercised. The warrant
holders do not have the rights or privileges of holders of common stock and any voting rights until they exercise their warrants
and receive shares of common stock. After the issuance of shares of common stock upon exercise of the warrants, each holder will
be entitled to one vote for each share held of record on all matters to be voted on by stockholders.
No warrants will
be exercisable unless at the time of the exercise a prospectus or prospectus relating to common stock issuable upon exercise of
the warrants is current and the common stock has been registered or qualified or deemed to be exempt under the securities laws
of the state of residence of the holder of the warrants. Under the terms of the Warrant Agent Agreement, we have agreed to use
our best efforts to maintain a current prospectus or prospectus relating to common stock issuable upon exercise of the warrants
until the expiration of the warrants. If we are unable to maintain the qualification or effectiveness of such registration statement
until the expiration of the warrants, and therefore are unable to deliver registered shares of common stock, the warrants may become
worthless. Additionally, the market for the warrants may be limited if the prospectus or prospectus relating to the common stock
issuable upon exercise of the warrants is not current or if the common stock is not qualified or exempt from qualification in the
jurisdictions in which the holders of such warrants reside. In no event will the registered holders of a Warrant be entitled to
receive a net-cash settlement, stock or other consideration in lieu of physical settlement in shares of our common stock.
No fractional
shares of common stock will be issued upon exercise of the warrants. If, upon exercise of the warrants, a holder would be entitled
to receive a fractional interest in a share, we will, upon exercise, round up to the nearest whole number the number of shares
of common stock to be issued to the Warrant holder. If multiple warrants are exercised by the holder at the same time, we will
aggregate the number of whole shares issuable upon exercise of all the warrants.
Preferred
Stock
The Company’s board of directors
are authorized, subject to any limitations prescribed by law, without further vote or action by its stockholders, to issue from
time to time shares of preferred stock in one or more series. Each series of preferred stock will have the number of shares, designations,
preferences, voting powers, qualifications and special or relative rights or privileges as shall be determined by the Company’s
board of directors, which may include, among others, dividend rights, voting rights, liquidation preferences, conversion rights
and preemptive rights.
It is not possible to state the actual
effect of the issuance of any shares of preferred stock upon the rights of holders of the Company’s common stock until the
board of directors determines the specific rights of the holders of its preferred stock. However, the effects might include,
among other things:
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Impairing dividend rights
of the Company’s common stock;
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Diluting the voting
power of the Company’s common stock;
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Impairing the liquidation
rights of the Company’s common stock; and
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Delaying or preventing
a change of control without further action by the Company’s stockholders.
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Blank Check Preferred Stock
The ability to authorize “blank check”
preferred stock makes it possible for the Company’s board of directors to issue preferred stock with voting or other rights
or preferences that could impede the success of any attempt to acquire the Company. These and other provisions may have the
effect of deferring hostile takeovers or delaying changes in control or management of the Company.
Common Stock Purchase Warrants
As of April 8, 2021, the
Company had outstanding warrants to purchase 3,317,790 shares of its common stock outstanding with various exercise prices and
expiration dates, held by 80 warrant holders.
Common Stock Purchase Options
As of April 8, 2021, the
Company had stock options to purchase 542,687 shares of its common stock outstanding, all of which were exercisable, with various
exercise prices and expiration dates, held by 23 option holders.
Exclusive Forum
Each
of our Second Amended Articles of Incorporation and our Amended and Restated Bylaws provide that unless the Company consents in
writing to the selection of an alternative forum, the Eighth Judicial District Court of Clark County, Nevada shall be the sole
and exclusive forum for state law claims with respect to: (i) any derivative action or proceeding brought in the name or right
of the Company or on its behalf, (ii) any action asserting a claim for breach of any fiduciary duty owed by any director, officer,
employee or agent of the Company to the Company or the Company’s stockholders, (iii) any action arising or asserting a claim
arising pursuant to any provision of Nevada Revised Statutes Chapters 78 or 92A or any provision of the Company’s Second
Amended and Restated Articles of Incorporation or Amended and Restated Bylaws or (iv) any action asserting a claim governed by
the internal affairs doctrine, including, without limitation, any action to interpret, apply, enforce or determine the validity
of the Company’s Second Amended and Restated Articles of Incorporation or Amended and Restated Bylaws. This exclusive forum
provision would not apply to suits brought to enforce any liability or duty created by the Securities Act or the Exchange Act or
any other claim for which the federal courts have exclusive jurisdiction. To the extent that any such claims may be based upon
federal law claims, Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any
duty or liability created by the Exchange Act or the rules and regulations thereunder. Furthermore, Section 22 of the Securities
Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created
by the Securities Act or the rules and regulations thereunder. The enforceability of similar exclusive forum provisions in other
corporations’ bylaws has been challenged in legal proceedings, and it is possible that a court could rule that this provision
in our Amended and Restated Bylaws is inapplicable or unenforceable.
Additionally,
each of our Second Amended and Restated Articles of Incorporation and our Amended and Restated Bylaws provide that unless the Company
consents in writing to the selection of an alternative forum, the federal district courts of the United States of America will
be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. Any person
or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Company are deemed to have notice of
and consented to this provision. As this provision applies to Securities Act claims, there may be uncertainty whether
a court would enforce such a provision.
Anti-Takeover Provisions
Nevada Anti-Takeover Law and Certain Charter and Bylaw Provisions
We are a Nevada corporation and the anti-takeover provisions of the Nevada Revised Statutes may discourage, delay or prevent a
change in control by prohibiting us from engaging in a business combination with an interested stockholder for a period of three
years after the person becomes an interested stockholder, even if a change in control would be beneficial to our existing stockholders.
In addition, our certificate of incorporation and bylaws may discourage, delay or prevent a change in our management or control
over us that stockholders may consider favorable. Our certificate of incorporation and bylaws:
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authorize the issuance
of “blank check” preferred stock that could be issued by our board of directors to thwart a takeover attempt;
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provide that vacancies on our board of directors, including newly created directorships, may be filled by a majority vote of directors then in office;
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place restrictive requirements (including advance notification of stockholder nominations and proposals) on how special meetings of stockholders may be called by our stockholders; do not provide stockholders with the ability to cumulate their votes; and
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provide that our board of directors or a majority of our stockholders may amend our bylaws.
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The NASDAQ Capital Market Listing
Our common stock is listed on the NASDAQ
Capital Market under the symbol “CRTD”. Our warrants to purchase shares of our common stock are listed on the NASDAQ
Capital Market under the symbol “CRTDW”.
Transfer Agent and Warrant Agent
The transfer agent and registrar for our common stock and Warrant
Agent is Pacific Stock Transfer with an address 6725 Via Austi Parkway, Suite 300 Las Vegas, NV 89119.
DESCRIPTION
OF DEBT SECURITIES
General
The debt securities
that we may offer by this prospectus consist of notes, debentures, or other evidences of indebtedness. The debt securities
may constitute either senior or subordinated debt securities, and in either case may be either secured or unsecured. Any debt
securities that we offer and sell will be our direct obligations. Debt securities may be issued in one or more series. All debt
securities of any one series need not be issued at the same time, and unless otherwise provided, a series of debt securities may
be reopened, with the required consent of the holders of outstanding debt securities, for issuance of additional debt securities
of that series or to establish additional terms of that series of debt securities (with such additional terms applicable only to
unissued or additional debt securities of that series). The form of indenture has been filed as an exhibit to the registration
statement of which this prospectus is a part and is subject to any amendments or supplements that we may enter into with the trustee(s),
however, we may issue debt securities not subject to the indenture provided such terms of debt securities are not otherwise required
to be set forth in the indenture. The material terms of the indenture are summarized below and we refer you to the indenture for
a detailed description of these material terms. Additional or different provisions that are applicable to a particular series of
debt securities will, if material, be described in a prospectus supplement relating to the offering of debt securities of that
series. These provisions may include, among other things and to the extent applicable, the following:
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the title of the debt securities, including, as applicable, whether the debt securities will be issued as senior debt securities, senior subordinated debt securities or subordinated debt securities, any subordination provisions particular to the series of debt securities;
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any limit on the aggregate principal amount of the debt securities;
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whether the debt securities are senior debt securities or subordinated debt securities and applicable subordination provisions, if any;
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whether the debt securities will be secured or unsecured;
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if other than 100% of the aggregate principal amount, the percentage of the aggregate principal amount at which we will sell the debt securities, such as an original issuance discount;
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the date or dates, whether fixed or extendable, on which the principal of the debt securities will be payable;
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the rate or rates, which may be fixed or variable, at which the debt securities will bear interest, if any, the date or dates from which any such interest will accrue, the interest payment dates on which we will pay any such interest, the basis upon which interest will be calculated if other than that of a 360-day year consisting of twelve 30-day months, and, in the case of registered securities, the record dates for the determination of holders to whom interest is payable;
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the place or places where the principal of and any premium or interest on the debt securities will be payable and where the debt securities may be surrendered for conversion or exchange;
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whether we may, at our option, redeem the debt securities, and if so, the price or prices at which, the period or periods within which, and the terms and conditions upon which, we may redeem the debt securities, in whole or in part, pursuant to any sinking fund or otherwise;
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if other than 100% of the aggregate principal amount thereof, the portion of the principal amount of the debt securities which will be payable upon declaration of acceleration of the maturity date thereof or provable in bankruptcy, or, if applicable, which is convertible or exchangeable;
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any obligation we may have to redeem, purchase or repay the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities, and the price or prices at which, the currency in which and the period or periods within which, and the terms and conditions upon which, the debt securities will be redeemed, purchased or repaid, in whole or in part, pursuant to any such obligation, and any provision for the remarketing of the debt securities;
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the issuance of debt securities as registered securities or unregistered securities or both, and the rights of the holders of the debt securities to exchange unregistered securities for registered securities, or vice versa, and the circumstances under which any such exchanges, if permitted, may be made;
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the denominations, which may be in United States Dollars or in any foreign currency, in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
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whether the debt securities will be issued in the form of certificated debt securities, and if so, the form of the debt securities (or forms thereof if unregistered and registered securities are issuable in that series), including the legends required by law or as we deem necessary or appropriate, the form of any coupons or temporary global security which may be issued and the forms of any other certificates which may be required under the indenture or which we may require in connection with the offering, sale, delivery or exchange of the debt securities;
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if other than United States Dollars, the currency or currencies in which payments of principal, interest and other amounts payable with respect to the debt securities will be denominated, payable, redeemable or repurchasable, as the case may be;
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whether the debt securities may be issuable in tranches;
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the obligations, if any, we may have to permit the conversion or exchange of the debt securities into common stock, preferred stock or other capital stock or property, or a combination thereof, and the terms and conditions upon which such conversion or exchange will be effected (including conversion price or exchange ratio), and any limitations on the ownership or transferability of the securities or property into which the debt securities may be converted or exchanged;
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if other than the trustee under the indenture, any trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the debt securities;
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any deletions from, modifications of or additions to the events of default with respect to the debt securities or the right of the Trustee or the holders of the debt securities in connection with events of default;
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any deletions from, modifications of or additions to the covenants with respect to the debt securities;
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if the amount of payments of principal of, and make-whole amount, if any, and interest on the debt securities may be determined with reference to an index, the manner in which such amount will be determined;
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whether the debt securities will be issued in whole or in part in the global form of one or more debt securities and, if so, the depositary for such debt securities, the circumstances under which any such debt security may be exchanged for debt securities registered in the name of, and under which any transfer of debt securities may be registered in the name of, any person other than such depositary or its nominee, and any other provisions regarding such debt securities;
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whether, under what circumstances and the currency in which, we will pay additional amounts on the debt securities to any holder of the debt securities who is not a United States person in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem such debt securities rather than pay such additional amounts, and the terms of any such option;
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whether the debt securities will be secured by any collateral and, if so, a general description of the collateral and the terms of any related security, pledge or other agreements;
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the persons to whom any interest on the debt securities will be payable, if other than the registered holders thereof on the regular record date therefor; and
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any other material terms or conditions upon which the debt securities will be issued.
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Unless otherwise
indicated in the applicable prospectus supplement, we will issue debt securities in fully registered form without coupons and in
denominations of $1,000 and in integral multiples of $1,000, and interest will be computed on the basis of a 360-day year of twelve
30-day months. If any interest payment date or the maturity date falls on a day that is not a business day, then the payment will
be made on the next business day without additional interest and with the same effect as if it were made on the originally scheduled
date. “Business day” means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York,
and on which the trustee and commercial banks are open for business in New York, New York.
Unless we inform you otherwise in a prospectus
supplement, each series of our senior debt securities will rank equally in right of payment with all of our other unsubordinated
debt. The subordinated debt securities will rank junior in right of payment and be subordinate to all of our unsubordinated debt.
Unless otherwise
indicated in the applicable prospectus supplement, the trustee will act as paying agent and registrar for the debt securities under
the indenture. We may act as paying agent under the indenture.
The prospectus
supplement will contain a description of United States federal income tax consequences relating to the debt securities, to the
extent applicable.
Covenants
The applicable
prospectus supplement will describe any covenants, such as restrictive covenants restricting us or our subsidiaries, if any, from
incurring, issuing, assuming or guarantying any indebtedness or restricting us or our subsidiaries, if any, from paying dividends
or acquiring any of our or its capital stock.
Consolidation,
Merger and Transfer of Assets
The indenture
permits a consolidation or merger between us and another entity and/or the sale, conveyance or lease by us of all or substantially
all of our property and assets, provided that:
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the resulting or acquiring entity, if other than us, is organized and existing under the laws of a United States jurisdiction and assumes all of our responsibilities and liabilities under the indenture, including the payment of all amounts due on the debt securities and performance of the covenants in the indenture;
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immediately after the transaction, and giving effect to the transaction, no event of default under the indenture exists; and
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we have delivered to the trustee an officers’ certificate stating that the transaction and, if a supplemental indenture is required in connection with the transaction, the supplemental indenture comply with the indenture and that all conditions precedent to the transaction contained in the indenture have been satisfied.
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If we consolidate
or merge with or into any other entity, or sell or lease all or substantially all of our assets in compliance with the terms and
conditions of the indenture, the resulting or acquiring entity will be substituted for us in the indenture and the debt securities
with the same effect as if it had been an original party to the indenture and the debt securities. As a result, such successor
entity may exercise our rights and powers under the indenture and the debt securities, in our name and, except in the case of a
lease, we will be released from all our liabilities and obligations under the indenture and under the debt securities.
Notwithstanding
the foregoing, we may transfer all of our property and assets to another entity if, immediately after giving effect to the transfer,
such entity is our wholly owned subsidiary. The term “wholly owned subsidiary” means any subsidiary in which we and/or
our other wholly owned subsidiaries, if any, own all of the outstanding capital stock.
Modification and Waiver
Under the indenture,
some of our rights and obligations and some of the rights of the holders of the debt securities may be modified or amended with
the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities affected
by the modification or amendment. However, the following modifications and amendments will not be effective against any holder
without its consent:
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a change in the stated maturity date of any payment of principal or interest;
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a reduction in the principal amount of or interest on any debt securities;
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an alteration or impairment of any right to convert at the rate or upon the terms provided in the indenture;
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a change in the currency in which any payment on the debt securities is payable;
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an impairment of a holder’s right to sue us for the enforcement of payments due on the debt securities; or
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a reduction in the percentage of outstanding debt securities required to consent to a modification or amendment of the indenture or required to consent to a waiver of compliance with certain provisions of the indenture or certain defaults under the indenture.
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Under the indenture,
the holders of not less than a majority in aggregate principal amount of the outstanding debt securities may, on behalf of all
holders of the debt securities:
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waive compliance by us with certain restrictive provisions of the indenture; and
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waive any past default under the indenture in accordance with the applicable provisions of the indenture, except a default in the payment of the principal of or interest on any series of debt securities.
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Events of Default
Unless we indicate
otherwise in the applicable prospectus supplement, “event of default” under the indenture will mean, with respect to
any series of debt securities, any of the following:
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failure to pay interest on any debt security for 30 days after the payment is due;
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failure to pay the principal of any debt security when due, either at maturity, upon redemption, by declaration or otherwise;
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failure on our part to observe or perform any other covenant or agreement in the indenture that applies to the debt securities for 90 days after we have received written notice of the failure to perform in the manner specified in the indenture; and
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certain events of bankruptcy, insolvency or reorganization.
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Remedies Upon
an Event of Default
If an event of
default occurs and continues, the trustee or the holders of not less than 25% in aggregate principal amount of the outstanding
debt securities of such series may declare the entire principal of all the debt securities to be due and payable immediately, except
that, if the event of default is caused by certain events in bankruptcy, insolvency or reorganization, the entire principal of
all of the debt securities of such series will become due and payable immediately without any act on the part of the trustee or
holders of the debt securities. If such a declaration occurs, the holders of a majority of the aggregate principal amount of the
outstanding debt securities of such series can, subject to conditions, rescind the declaration.
The indenture
requires us to furnish to the trustee not less often than annually, a certificate from our principal executive officer, principal
financial officer or principal accounting officer, as the case may be, as to such officer’s knowledge of our compliance with
all conditions and covenants under the indenture. The trustee may withhold notice to the holders of debt securities of any default,
except defaults in the payment of principal of or interest on any debt securities if the trustee in good faith determines that
the withholding of notice is in the best interests of the holders. For purposes of this paragraph, “default” means
any event which is, or after notice or lapse of time or both would become, an event of default under the indenture.
The trustee is
not obligated to exercise any of its rights or powers under the indenture at the request, order or direction of any holders of
debt securities, unless the holders offer the trustee satisfactory security or indemnity. If satisfactory security or indemnity
is provided, then, subject to other rights of the trustee, the holders of a majority in aggregate principal amount of the outstanding
debt securities may direct the time, method and place of:
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conducting any proceeding for any remedy available to the trustee; or
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exercising any trust or power conferred upon the trustee.
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The holder of
a debt security will have the right to begin any proceeding with respect to the indenture or for any remedy only if:
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the holder has previously given the trustee written notice of a continuing event of default;
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the holders of not less than a majority in aggregate principal amount of the outstanding debt securities have made a written request of, and offered reasonable indemnity to, the trustee to begin such proceeding;
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the trustee has not started such proceeding within 60 days after receiving the request; and
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no direction inconsistent with such written request has been given to the trustee under the indenture.
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However, the holder
of any debt security will have an absolute right to receive payment of principal of and interest on the debt security when due
and to institute suit to enforce this payment.
Satisfaction and Discharge; Defeasance
Satisfaction
and Discharge of Indenture. Unless otherwise indicated in the applicable prospectus supplement, if at any time,
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we have paid the principal of and interest on all the debt securities of any series, except for debt securities which have been destroyed, lost or stolen and which have been replaced or paid in accordance with the indenture, as and when the same shall have become due and payable, or
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we have delivered to the trustee for cancellation all debt securities of any series theretofore authenticated, except for debt securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in the indenture, or
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all the debt securities of such series not theretofore delivered to the trustee for cancellation have become due and payable, or are by their terms are to become due and payable within one year or are to be called for redemption within one year, and we have deposited with the trustee, in trust, sufficient money or government obligations, or a combination thereof, to pay the principal, any interest and any other sums due on the debt securities, on the dates the payments are due or become due under the indenture and the terms of the debt securities,
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then the indenture
shall cease to be of further effect with respect to the debt securities of such series, except for:
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rights of registration of transfer and exchange, and our right of optional redemption;
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substitution of mutilated, defaced, destroyed, lost or stolen debt securities;
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rights of holders to receive payments of principal thereof and interest thereon upon the original stated due dates therefor (but not upon acceleration) and remaining rights of the holders to receive mandatory sinking fund payments, if any;
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the rights, obligations and immunities of the trustee under the indenture; and
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the rights of the holders of such series of debt securities as beneficiaries thereof with respect to the property so deposited with the trustee payable to all or any of them.
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Defeasance
and Covenant Defeasance. Unless otherwise indicated in the applicable prospectus supplement, we may elect with respect
to any debt securities of any series either:
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to defease and be discharged from all of our obligations with respect to such debt securities (“defeasance”), with certain exceptions described below; or
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to be released from our obligations with respect to such debt securities under such covenants as may be specified in the applicable prospectus supplement, and any omission to comply with those obligations will not constitute a default or an event of default with respect to such debt securities (“covenant defeasance”).
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We must comply
with the following conditions before the defeasance or covenant defeasance can be effected:
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we must irrevocably deposit with the indenture trustee or other qualifying trustee, under the terms of an irrevocable trust agreement in form and substance satisfactory to the trustee, trust funds in trust solely for the benefit of the holders of such debt securities, sufficient money or government obligations, or a combination thereof, to pay the principal, any interest and any other sums on the due dates for those payments; and
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we must deliver to the trustee an opinion of counsel to the effect that the holders of such debt securities will not recognize income, gain or loss for federal income tax purposes as a result of defeasance or covenant defeasance, as the case may be, to be effected with respect to such debt securities and will be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such defeasance or covenant defeasance, as the case may be, had not occurred.
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In connection
with defeasance, any irrevocable trust agreement contemplated by the indenture must include, among other things, provision for:
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payment of the principal of and interest on such debt securities, if any, appertaining thereto when due (by redemption, sinking fund payments or otherwise),
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the payment of the expenses of the trustee incurred or to be incurred in connection with carrying out such trust provisions,
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rights of registration, transfer, substitution and exchange of such debt securities in accordance with the terms stated in the indenture, and
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continuation of the rights, obligations and immunities of the trustee as against the holders of such debt securities as stated in the indenture.
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The accompanying
prospectus supplement may further describe any provisions permitting or restricting defeasance or covenant defeasance with respect
to the debt securities of a particular series.
Global Securities
Unless otherwise
indicated in the applicable prospectus supplement, each debt security offered by this prospectus will be issued in the form of
one or more global debt securities representing all or part of that series of debt securities. This means that we will not issue
certificates for that series of debt securities to the holders. Instead, a global debt security representing that series will be
deposited with, or on behalf of, a securities depositary and registered in the name of the depositary or a nominee of the depositary.
Any such depositary must be a clearing agency registered under the Exchange Act. We will describe the specific terms of the depositary
arrangement with respect to a series of debt securities to be represented by a global security in the applicable prospectus supplement.
Notices
We will give notices
to holders of the debt securities by mail at the addresses listed in the security register. In the case of notice in respect of
unregistered securities or coupon securities, we may give notice by publication in a newspaper of general circulation in New York,
New York.
Governing Law
The particular
terms of a series of debt securities will be described in a prospectus supplement relating to such series of debt securities. Any
indentures will be subject to and governed by the Trust Indenture Act of 1939, as amended, and may be supplemented or amended from
time to time following their execution. Unless otherwise stated in the applicable prospectus supplement, we will not be limited
in the amount of debt securities that we may issue, and neither the senior debt securities nor the subordinated debt securities
will be secured by any of our property or assets. Thus, by owning debt securities, you are one of our unsecured creditors.
Regarding the
Trustee
From time to time,
we may maintain deposit accounts and conduct other banking transactions with the trustee to be appointed under the indenture or
its affiliates in the ordinary course of business.
DESCRIPTION
OF WARRANTS
We may offer to
sell warrants from time to time. If we do so, we will describe the specific terms of the warrants in a prospectus supplement. In
particular, we may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series.
We may also issue warrants independently or together with other securities and the warrants may be attached to or separate from
those securities.
We will evidence
each series of warrants by warrant certificates that we will issue under a separate agreement. We will enter into the warrant agreement
with a warrant agent. We will indicate the name and address of the warrant agent in the applicable prospectus supplement relating
to a particular series of warrants.
We will describe
in the applicable prospectus supplement the terms of the series of warrants, including:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreement and warrants may be modified;
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certain United States federal income tax consequences of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific material terms, preferences, rights or limitations of or restrictions on the warrants.
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Holders may exercise
the warrants by delivering the warrant certificate representing the warrants to be exercised together with other requested information,
and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement.
We will set forth in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver
to the warrant agent.
Upon receipt of
the required payment and the warrant certificate properly completed and duly executed at the office of the warrant agent or any
other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such
exercise. If a holder exercises fewer than all of the warrants represented by the warrant certificate, then we will issue a new
warrant certificate for the remaining amount of warrants.
Holder will not
have any of the rights of the holders of the securities purchasable upon the exercise of warrants until you exercise them. Accordingly,
holder will not be entitled to, among other things, vote or receive dividend payments or similar distributions on the securities
you can purchase upon exercise of the warrants.
The information
provided above is only a summary of the terms under which we may offer warrants for sale. Accordingly, investors must carefully
review the applicable warrant agreement for more information about the specific terms and conditions of these warrants before investing
in us. In addition, please carefully review the information provided in the applicable prospectus supplement, which contains additional
information that is important for you to consider in evaluating an investment in our securities.
DESCRIPTION
OF RIGHTS
We may issue rights to our stockholders
to purchase shares of our common stock or preferred stock described in this prospectus. We may offer rights separately or together
with one or more additional rights, preferred stock, common stock, warrants or any combination of those securities in the form
of units, as described in the applicable prospectus supplement. Each series of rights will be issued under a separate rights agreement
to be entered into between us and a bank or trust company, as rights agent. The rights agent for any rights we offer will be set
forth in the applicable prospectus supplement. The rights agent will act solely as our agent in connection with the certificates
relating to the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for
or with any holders of rights certificates or beneficial owners of rights. The following description sets forth certain general
terms and provisions of the rights to which any prospectus supplement may relate. The particular terms of the rights to which any
prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered will
be described in the applicable prospectus supplement. To the extent that any particular terms of the rights, rights agreement or
rights certificates described in a prospectus supplement differ from any of the terms described below, then the terms described
below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable rights agreement
and rights certificate for additional information before you decide whether to purchase any of our rights.
The prospectus supplement relating to any
rights that we offer will include specific terms relating to the offering, including, among other matters:
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the date of determining the stockholders entitled to the rights distribution;
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the aggregate number of shares of common stock, preferred stock or other securities purchasable upon exercise of the rights;
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the exercise price;
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the aggregate number of rights issued;
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whether the rights are transferrable and the date, if any, on and after which the rights may be separately transferred;
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the date on which the right to exercise the rights will commence, and the date on which the right to exercise the rights will expire;
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the method by which holders of rights will be entitled to exercise;
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the conditions to the completion of the offering;
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the withdrawal, termination and cancellation rights;
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whether there are any backstop or standby purchaser or purchasers and the terms of their commitment;
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whether stockholders are entitled to oversubscription right;
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any U.S. federal income tax considerations; and
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any other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the rights.
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If less than all of the rights issued in
any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or
through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as
described in the applicable prospectus supplement. In connection with any rights offering, we may enter into a standby underwriting
or other arrangement with one or more underwriters or other persons pursuant to which such underwriters or other persons would
purchase any offered securities remaining unsubscribed for after such rights offering.
DESCRIPTION
OF UNITS
We may issue units consisting of any combination
of the other types of securities offered under this prospectus in one or more series. We may evidence each series of units by unit
certificates that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. We will indicate
the name and address of the unit agent in the applicable prospectus supplement relating to a particular series of units.
The following description, together with
the additional information included in any applicable prospectus supplement, summarizes the general features of the units that
we may offer under this prospectus. You should read any prospectus supplement and any free writing prospectus that we may authorize
to be provided to you related to the series of units being offered, as well as the complete unit agreements that contain the terms
of the units. Specific unit agreements will contain additional important terms and provisions and we will file as an exhibit to
the registration statement of which this prospectus is a part, or will incorporate by reference from another report that we file
with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If we offer any units, certain terms of
that series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as
applicable:
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the title of the series of units;
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identification and description of the separate constituent securities comprising the units;
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the price or prices at which the units will be issued;
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the date, if any, on and after which the constituent securities comprising the units will be separately transferable;
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a discussion of certain United States federal income tax considerations applicable to the units; and
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any other terms of the units and their constituent securities.
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PLAN OF DISTRIBUTION
We may sell the securities from time to
time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods or through
underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may be distributed from time
to time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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at negotiated prices.
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Each time that we sell securities covered
by this prospectus, we will provide a prospectus supplement or supplements that will describe the method of distribution and set
forth the terms and conditions of the offering of such securities, including the offering price of the securities and the proceeds
to us, if applicable.
Offers to purchase the securities being
offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the securities
from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If a dealer is utilized in the sale of
the securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may then resell
the securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is utilized in the sale
of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time
of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales
of the securities to the public. In connection with the sale of the securities, we or the purchasers of securities for whom the
underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter
may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated
in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal,
and may then resell the securities at varying prices to be determined by the dealer.
Any compensation paid to underwriters,
dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters
to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended,
and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to
be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil
liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect
thereof and to reimburse those persons for certain expenses.
Any common stock will be listed on the
Nasdaq Capital Market, but any other securities may or may not be listed on a national securities exchange. To facilitate the offering
of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect
the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons
participating in the offering of more securities than were sold to them. In these circumstances, these persons would cover such
over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any.
In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the
open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed
if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may
be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open
market. These transactions may be discontinued at any time.
We may engage in at the market offerings
into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act.
In addition, we may enter into derivative
transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party
may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings
of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of
stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named
in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities
to a financial institution or other third party that in turn may sell the securities short using this prospectus and an applicable
prospectus supplement. Such financial institution or other third party may transfer its economic short position to investors in
our securities or in connection with a concurrent offering of other securities.
We do not make any representation or prediction
as to the direction or magnitude of any effect that the transactions described above might have on the price of the securities.
In addition, we do not make any representation that underwriters will engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
The specific terms of any lock-up provisions
in respect of any given offering will be described in the applicable prospectus supplement.
To comply with applicable state securities
laws, the securities offered by this prospectus will be sold, if necessary, in such jurisdictions only through registered or licensed
brokers or dealers. In addition, securities may not be sold in some states unless they have been registered or qualified for sale
in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
The underwriters, dealers and agents may
engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
LEGAL MATTERS
Lucosky Brookman LLP will pass upon certain
legal matters relating to the issuance and sale of the securities offered hereby on behalf of Creatd, Inc. Additional legal matters
may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
Our consolidated balance sheets as of December
31, 2020 and 2019, and the related consolidated statements of operations, stockholders’ equity (deficit), and cash flows for each
of those two years have been audited by Rosenberg Rich Baker Berman, P.A., an independent registered public accounting firm, as set forth
in its report incorporated by reference and are included in reliance upon such report given on the authority of such firm as experts
in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an estimate of the expenses
(all of which are to be paid by the registrant) that we may incur in connection with the securities being registered hereby.
SEC registration fee
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$
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5,455
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FINRA filing fee
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Printing expenses
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Legal fees and expenses
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Accounting fees and expenses
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*
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Blue Sky, qualification fees and expenses
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*
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Transfer agent fees and expenses
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|
|
*
|
Trustee fees and expenses
|
|
|
|
*
|
Warrant agent fees and expenses
|
|
|
|
*
|
Miscellaneous
|
|
|
|
*
|
Total
|
|
$
|
|
*
|
|
*
|
These fees are calculated
based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
|
Item 15. Indemnification of Directors and Officers
Each of our Second Amended and Restated
Articles of Incorporation and our Amended and Restated Bylaws provide for indemnification of our directors and officers. Our Amended
and Restated Bylaws provide that we will indemnify any person who was or is a party or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative (other than an action by or in the right
of the corporation) by reason of the fact that such person is or was a director or officer of the corporation, against expenses
(including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Company, and with respect to any criminal action or proceeding, had no reasonable
cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent will not, without more, create a presumption
that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the
best interest of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful. The Company may by action of its Board of Directors, grant rights to indemnification and advancement
of expenses to employees and agents of the Company with the same scope and effects as the indemnification provisions for officers
and directors.
Insofar as indemnification for liabilities
under the Securities Act may be permitted to officers, directors or persons controlling the Company pursuant to the foregoing provisions,
the Company has been informed that is it is the opinion of the Securities and Exchange Commission that such indemnification is
against public policy as expressed in such Securities Act and is, therefore, unenforceable.
Item 16. Exhibits
(a) Exhibits
A list of exhibits filed with this registration
statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein by reference.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
|
(1)
|
To file, during any
period in which offers or sales are being made, a post-effective amendment to this registration statement:
|
|
(i)
|
To include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933;
|
|
(ii)
|
To reflect in the prospectus
any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value
of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
|
|
(iii)
|
To include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement.
|
|
(2)
|
That for the purpose
of determining any liability under the Securities Act of 1933 each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
|
|
(3)
|
To remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
|
(4)
|
That, for the purpose
of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part
of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is
first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such date of first use.
|
|
(5)
|
That, for the purpose of determining liability
of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that
in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of
the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
|
|
(i)
|
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
|
|
(ii)
|
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
|
|
(iii)
|
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
|
|
(iv)
|
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
|
(6)
|
The undersigned Registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
|
|
(7)
|
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 provisions described in Item 14 above, 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 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.
|
|
(8)
|
The undersigned Registrant hereby undertakes:
|
|
(1)
|
That for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
|
|
(2)
|
That for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and this offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Fort Lee, State of New Jersey, on April 8, 2021.
|
Creatd, Inc.
|
|
|
|
|
By:
|
/s/ Jeremy Frommer
|
|
|
Name: Jeremy Frommer
Title: Chief Executive Officer
(Principal Executive Officer)
|
POWER
OF ATTORNEY: KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints Jeremy
Frommer, his true and lawful attorneys-in-fact and agents with full power of substitution, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement,
and to sign any registration statement for the same offering covered by the Registration Statement that is to be effective upon
filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, and to file the
same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his, her or their substitute
or substitutes, may lawfully do or cause to be done or by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Jeremy Frommer
|
|
Chief Executive Officer
|
|
April 8, 2021
|
Jeremy Frommer
|
|
(Principal Executive Officer), Director
|
|
|
|
|
|
|
|
/s/ Chelsea Pullano
|
|
Chief Financial Officer
|
|
April 8, 2021
|
Chelsea Pullano
|
|
(Principal Financial and Accounting Officer),
|
|
|
|
|
|
|
|
/s/ Mark Standish
|
|
Chairman of the Board
|
|
April 8, 2021
|
Mark Standish
|
|
|
|
|
|
|
|
|
|
/s/ Mark Patterson
|
|
Director
|
|
April 8, 2021
|
Mark Patterson
|
|
|
|
|
|
|
|
|
|
/s/ Leonard Schiller
|
|
Director
|
|
April 8, 2021
|
Leonard Schiller
|
|
|
|
|
|
|
|
|
|
/s/ Laurie Weisberg
|
|
Director
|
|
April 8, 2021
|
Laurie Weisberg
|
|
|
|
|
|
|
|
|
|
/s/ LaBrena Martin
|
|
Director
|
|
April 8, 2021
|
LaBrena Martin
|
|
|
|
|
EXHIBIT INDEX
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