United States securities and exchange commission logo
March 24, 2023
Gareth Sheridan
Chief Executive Officer
NutriBand Inc.
121 South Orange Ave., Suite 1500
Orlando, FL 32801
Re: NutriBand Inc.
Form 8-K filed
January 5, 2023
Correspondence
filed February 27, 2023
File No. 001-40854
Dear Gareth Sheridan:
We have reviewed your filing 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 these comments within ten business days by
providing the requested
information or advise us as soon as possible when you will respond. If
you do not believe our
comments apply to your facts and circumstances, please tell us why in
your response.
After reviewing your
response to these comments, we may have additional comments.
Correspondence filed February 27, 2023
General
1. You state in response
to prior comment 1 that Upstream is operated by the MERJ
Exchange, which is
regulated in the Seychelles. Please revise to disclose in your next
filing the risks and
uncertainties with listing on this exchange and disclose the rights of
shareholders and any
restrictions on investors on the Upstream platform. For example, we
note that U.S.-based
investors, either a U.S. citizen or permanent resident, will not be able
to buy shares on the
Upstream secondary market.
2. We note your response
to prior comment 2, which we reissue in part. In your next filing,
please provide a
materially complete description of the tokenized shares and the process
by which shareholders
exchange their common shares for the tokenized shares, including
the entire lifecycle
from the initial exchange of common shares for tokenized shares
through the exchange
back into common shares. Provide a detailed explanation of how
such securities are the
same as the issued and outstanding shares of common stock already
Gareth Sheridan
FirstName
NutriBand LastNameGareth Sheridan
Inc.
Comapany
March NameNutriBand Inc.
24, 2023
March2 24, 2023 Page 2
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FirstName LastName
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
disclosure, please explain
the role of MERJ Depository and Registry Limited and how it interacts
with the
company's U.S. transfer agent. Please also explain what you mean by
the statements that
MERJ Depository will manage the tokenized securities.
Additionally, explain the legal
relationship between MERJ Depository and shareholders who deposit
their shares with
MERJ Dep., including the relevant governing law. Please also explain
the rights of such
shareholders in the event of a liquidation or dissolution of MERJ
Depository. Further,
please compare the legal rights of such shareholders with shareholders
who own their
shares in either book-entry form or on deposit with a U.S. broker,
including the various
protections afforded such shareholders under applicable law. Finally,
please add risk
factor disclosure addressing the risks to shareholders arising from
any difference in such
rights and protections.
3. It is unclear how ownership of tokenized securities, initially and in
connection with
resales, will be recorded. Please clarify how the tokenized securities
will be held on the
books and records of the transfer agent (i.e. in the name of MERJ
Depository or in the
name of the individual shareholders). Please also clarify whether and,
if so, how
subsequent resales of the tokenized securities on the Upstream
platform will be reflected
on the books and records of the transfer agent or if all such
transfers will be records solely
on the books and records of MERJ Depository. Finally, based on your
responses to the
foregoing, please clarify how the lost certificate process will
work in the context of the
tokenized securities, in particular if the tokenized securities will
be held in the name of the
MERJ Depository on the books and records of the transfer agent.
4. With regard to how "tokenized equity" is held on Upstream, please
clarify whether the
tokenized securities will be held through a shareholder's wallet or in
an omnibus wallet.
5. We note the statement that shareholders may also "choose between
various depositories to
hold their shares, such as Book Entry with TA, CEDE & Co. or MERJ
Dep." Please
clarify how these securities would be held if not deposited with one
of the depositories.
For example, does the company continue to use paper certificated
shares?
6. We note your response to prior comment 3. With a view toward
disclosure, please clarify
whether holders of the tokenized shares will receive dividend, voting
and other rights
associated with ownership of the company s common stock and, if so,
explain how they
are entitled to these rights, whether by contract and/or applicable
law. Please also clarify
whether such holders have the right to receive confirmations, proxy
statements and other
documents required by law to be provided to the holders of the company
s common
stock. Finally, please clarify whether there are any rights or
preferences to which holders
of tokenized shares are not entitled. While we note that the company
is not currently
planning to offer digital dividends to shareholders, the response
letter stated that "if and
when a digital dividends or coupon/reward is contemplated to be
issued, all shareholders
of record of the Company will be entitled to the dividend or
coupon/reward." Please also
include this disclosure in your next filing.
Gareth Sheridan
FirstName
NutriBand LastNameGareth Sheridan
Inc.
Comapany
March NameNutriBand Inc.
24, 2023
March3 24, 2023 Page 3
Page
FirstName LastName
7. We note your response to prior comment 4. In your next filing, please
include risk factor
disclosure addressing the discrepancies that could result between the
trading prices of
common shares on Nasdaq and the tokenized shares on Upstream, whether
resulting from
different liquidity in the markets or otherwise.
8. We note your response to prior comment 5, which we reissue. Disclose
in your next filing
what information is publicly available about the trading activity that
occurs on Upstream
and, in particular, what information holders of common shares would
have about the
trading on Upstream before making a decision to exchange their common
shares for
tokenized shares.
9. We refer to prior comment 6 and your corresponding response. Disclose
in your next
filing the meaning of "trading" securities on Upstream with respect to
U.S.-based
investors. Provide prominent disclosure about the restrictions on such
investors,
specifically that U.S.-based investors, including U.S. citizens and
permanent residents
living abroad, cannot purchase shares and are only permitted to sell
or liquidate securities
they currently own on Upstream.
10. It appears that U.S. citizens and residents are permitted to deposit
their securities with
MERJ Depository and sell those securities on the Upstream platform
operated by MERJ
Exchange. It is not clear why MERJ Depository and MERJ Exchange are
not required to
register with the Commission as a broker or dealer, national
securities exchange and/or
clearing agency. In your next filing, please add a risk factor
addressing the risks to
shareholders in the event that these entities are not properly
registered with the
Commission as a broker or dealer, national securities exchange and/or
clearing agency.
11. In your response, you state that the Upstream technology will reject
securities buy orders
from cryptographic keypairs that, pursuant to their KYC review, come
from U.S. persons.
You further state that no securities buy orders are accepted without a
user having
successfully undergone the Upstream KYC review process. In your next
filing, please
describe in greater detail the KYC policies and procedures of
Upstream. In responding to
this comment, please disclose and clarify the extent to which such KYC
policies and
procedures involve self-certification or IP address monitoring.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Please contact Jane Park at 202-551-7439 or Loan Lauren Nguyen at
202-551-3642 with
any questions.
Sincerely,
Division of
Corporation Finance
Gareth Sheridan
NutriBand Inc.
March 24, 2023
Page 4
FirstName LastNameGareth Sheridan
Office of Industrial Applications and
Comapany NameNutriBand Inc.
Services
March 24, 2023 Page 4
cc: Michael Paige, Esq.
FirstName LastName