United States securities and exchange commission logo
July 18, 2023
Kevin Brian Cox
Chief Executive Officer
SurgePays, Inc.
3124 Brother Blvd, Suite 410
Bartlett, TN 38133
Re: SurgePays, Inc.
Registration
Statement on Form S-3
Filed July 3, 2023
File No. 333-273110
Dear Kevin Brian Cox:
We have limited our review of your registration statement to
those issues we have
addressed in our 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.
Form S-3 filed July 3, 2023
General
1. We note that you issued
a press release on May 2, 2023 announcing that you have been
approved to dual list
your shares on Upstream. Please disclose what security is being
listed on Upstream
(i.e., common stock or tokenized equity). Disclose whether Upstream
is a registered
exchange and in what jurisdiction and the risks and uncertainties with
listing on this
exchange, including any restrictions on investors in this offering. Disclose
the rights of the
shareholders and any restrictions on investors on the Upstream platform.
For example, we note
that your press release indicates that U.S. or Canadian-based
citizens or permanent
residents are not currently able to deposit, buy, or sell securities on
Upstream.
Kevin Brian Cox
FirstName
SurgePays,LastNameKevin Brian Cox
Inc.
Comapany
July NameSurgePays, Inc.
18, 2023
July 18,
Page 2 2023 Page 2
FirstName LastName
2. We note that the Upstream website allows trading of tokenized equity
of certain
companies. Please clarify whether you intend to list the tokenized
equity on Upstream. If
so, 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. In responding to this comment:
Include the company s legal analysis as to the characterization
of the tokenized
equity and whether it is the same class as the common shares, a
different class of
common stock, or a security based swap.
Provide a detailed explanation of how such 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.
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 any
"tokenized equity" is
held on Upstream through MERJ Depository and Registry Limited
(e.g., whether
through a shareholder's wallet or an omnibus wallet).
3. Please clarify whether there could be discrepancies 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. Include risk factor disclosure,
if material.
4. Please disclose 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.
5. The press release indicates that shareholders are eligible to claim
digital NFTs. Explain
whether you are planning to offer any digital dividends to
shareholders and disclose the
process for distribution of digital dividends, including whether the
digital dividends will
be limited to those who hold the tokenized shares. Also explain how
you will inform and
communicate to shareholders in regard to any digital dividends or
gifts, with respect to the
tokenized shares.
6. We note that on January 5, 2023, you were notified by Nasdaq that the
company is not
in compliance with the annual shareholder meeting requirement for
continued listing on
the Nasdaq Capital Market. Please include a recent development section
to disclose
the Nasdaq notification letter and disclose whether you have regained
compliance with
Nasdaq listing qualifications.
Kevin Brian Cox
FirstName
SurgePays,LastNameKevin Brian Cox
Inc.
Comapany
July NameSurgePays, Inc.
18, 2023
July 18,
Page 3 2023 Page 3
FirstName LastName
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.
Refer to Rules 460 and 461 regarding requests for acceleration. Please
allow adequate
time for us to review any amendment prior to the requested effective date of
the registration
statement.
Please contact Lauren Pierce, Staff Attorney, at (202) 551-3887 or Jan
Woo, Legal
Branch Chief, at (202) 551-3453 with any questions.
Sincerely,
Division of
Corporation Finance
Office of Technology
cc: Joseph Lucosky