United States securities and exchange commission logo
November 15, 2022
Scott W. Absher
Chief Executive Officer
ShiftPixy, Inc.
501 Brickell Key Drive, Suite 300
Miami, FL 33131
Re: ShiftPixy, Inc.
Registration
Statement on Form S-3
Response dated
November 2, 2022
File No. 333-267751
Dear Scott W. Absher:
We have reviewed your amended registration statement and have the
following
comments. In some of our comments, we may ask you to provide us with
information so we
may better understand your disclosure.
Please respond to this letter by amending your registration
statement and providing the
requested information. If you do not believe our comments apply to your
facts and
circumstances or do not believe an amendment is appropriate, please tell
us why in your
response.
After reviewing any amendment to your registration statement and
the information you
provide in response to these comments, we may have additional comments.
Unless we note
otherwise, our references to prior comments are to comments in our
October 25, 2022 letter.
Response dated November 2, 2022
General
1. We note your response
to comment 1. Please supplementally provide your legal analysis
supporting your
conclusion that the Company is not an investment company as defined
in section 3(a)(1)(A)
or Section 3(a)(1)(C) of the Investment Company Act of 1940.
Please include in your
analysis all relevant calculations under section 3(a)(1)(C), on an
unconsolidated basis,
identifying each constituent part of the numerators and
denominators. In your
response, please ensure that you address the value, as that term is
defined in section
2(a)(41), and your proposed treatment under section 3(a)(1)(C) of: (i)
the interests held by
the Company in ShiftPixy Investments, Inc.; (ii) the interests held by
ShiftPixy Investments,
Inc. in Industrial Human Capital, Inc., and (iii) any other
Scott W. Absher
ShiftPixy, Inc.
November 15, 2022
Page 2
substantive determinations and/or characterizations of assets that are
material to your
calculations.
2. Please supplementally indicate (i) whether the redemptions from the
IHC Trust Account
have already occurred and, if not, when they will occur and (ii)
whether you believe you
did not meet the definition of an investment company as defined
in section 3(a)(1)(A)
and section 3(a)(1)(C) on or before October 19, 2022, the date you
identified as the date
on which you were no longer able to rely on the safe harbor provided
in Rule 3a-2.
3. We note your response to comment 2 stating that each share to be
traded on
Upstream "shall be represented as a digital security and is the same
issued and authorized
share of common stock already registered with the Commission." Please
provide us with
a materially complete description of such "digital security" and
"tokenized equity,"
including a detailed explanation of how such digital securities are
the same as the issued
and outstanding shares of common stock already registered, as well as
how such shares
compare in regards to transferability and the role of the transfer
agent, whether on
Upstream or otherwise. In your response, please explain the role of
MERJ Depository and
Registry Limited and how it interacts with the company s U.S.
transfer agent, and also
address how the "tokenized equity" is held on Upstream through MERJ
Depository and
Registry Limited (e.g., whether through a shareholder's wallet or an
omnibus wallet).
4. We also note your response to comment 2 that the "[s]ecurities listed
on Upstream,
including the proposed offering, are not available to U.S. investors."
Please provide us
with your analysis as to whether the proposed follow-on offering as
well as the proposed
trading of your current shares on Upstream would be exempt from
registration under the
Securities Act. Tell us how you intend to ensure that the offering is
not available to U.S.
investors. With respect to the securities that current shareholders
may request to be
withdrawn from Nasdaq and subsequently traded on Upstream, please also
clarify whether
such option will only be available to non-U.S. investors.
5. We note your response to comment 4. While we do not have any further
comments at this
time regarding your responses, please confirm your understanding that
our decision not to
FirstName LastNameScott W. Absher
issue additional comments should not be interpreted to mean that we
either agree or
Comapany NameShiftPixy,
disagree Inc.
with your responses, including any conclusions you have made,
positions you
have15,
November taken and
2022 practices
Page 2 you have engaged in with respect to this
matter.
FirstName LastName
Scott W. Absher
FirstName LastNameScott W. Absher
ShiftPixy, Inc.
Comapany 15,
November NameShiftPixy,
2022 Inc.
November
Page 3 15, 2022 Page 3
FirstName LastName
You may contact Brian Fetterolf at 202-551-6613 or Mara Ransom at
202-551-3264 if
you have any questions.
Sincerely,
Division of Corporation
Finance
Office of Trade &
Services
cc: Jeff Cahlon