Correspondence 0001104659-22-124266 from ShiftPixy, Inc. (PIXY) (CIK 0001675634)
ShiftPixy, Inc. (PIXY) (CIK 0001675634)
Date: Dec. 2, 2022 · CIK: 0001675634 · Accession: 0001104659-22-124266
AI Filing Summary & Sentiment
File numbers found in text: 333-267751
Referenced dates: December 1, 2022
Letter
Re: ShiftPixy, Inc.
December 2, 2022
Securities and Exchange Commission
Division of Corporation Finance
100 F Street, NE
Washington, D.C. 20549
Registration Statement on Form S-3
Response dated December 1, 2022
File No. 333-267751
Ladies and Gentlemen:
Please find below the response of ShiftPixy, Inc. (the “Company”, “we,” “us,” or “our”), to the comments raised by the staff (the “Staff”) of the Securities and Exchange Commission in its letter dated December 1, 2022, relating to the above-referenced registration statement.
For your convenience, the Staff’s comment in each instance has been restated and is followed by the Company’s response.
Response dated December 1, 2022
General
1. We note your response to comment 3 that the digital securities will be a “representation of a company’s common stock that acts as a receipt for the deposit or purchase and ownership of shares in the company." Please provide us with your analysis of whether such digital representations and receipts are not new or separate securities, and therefore, you are not facilitating, or causing you to engage in, transactions in unregistered securities. In responding to this comment, please address the differences in holding the shares in book-entry form versus in tokenized form, including any differences in shareholder rights such as transferability. Refer to Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 756 F.2d 230 (2d Cir. 1985) and Abrahamson v. Fleschner, 586 F.2d 862 (2d Cir. 1977).
2. We also note that it is not clear 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 Dep. 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 Dep. Finally, based on your responses to the foregoing, please clarify how tokenized securities will be withdrawn from the Upstream platform and returned to book-entry form with the transfer agent and 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 Dep. on the books and records of the transfer agent.
3. Given that the Upstream platform will facilitate resales of the tokenized securities, please clarify what you mean by the statement that “Upstream does not allow third party transfers, withdrawals, or movements. The shares may only be deposited and withdrawn to/by the same shareholder, and the shareholder information must match the KYC pack.”
4. We note the statement that the transfer agent will have “an individual share count per person/entity for shares that are not deposited with either CEDE & Co. or MERJ Dep. for secondary trading.” 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?
5. Please clarify whether the tokenized securities will be held in an omnibus account or whether the individual shareholders hold the private keys.
6. Please explain what you mean by the statements that MERJ Dep. will “manage” the tokenized securities.
7. Please explain how Upstream will be able to prevent “transfers, withdrawals, or movements” of the tokenized securities.
8. We note your response to comment 4 that "[t]here is no current proposed Upstream offering by the Company," but Upstream's website indicates that you are or plan to conduct a "Follow on Offering" of up to $10 million with a minimum investment of $100. Please reconcile.
9. Please describe in greater detail the KYC policies and procedures of Upstream. In responding to this comment, please clarify the extent to which such KYC policies and procedures involve self-certification or IP address monitoring.
Response:
The Company respectfully acknowledges the staff's comments, notes that the Company has withdrawn its listing application with Upstream, plans to issue a press release regarding such withdrawal on Monday, December 5, 2022, and requests that the staff consider the issue of the Company’s listing with Upstream to be moot.
Should you have additional questions regarding the information contained herein, please contact our counsel, Jeff Cahlon at 212-930-9700 or jcahlon@srf.law.
Sincerely,
/s/ Scott
W. Absher
Show Raw Text
CORRESP
1
filename1.htm
December 2, 2022
Securities and Exchange Commission
Division of Corporation Finance
100 F Street, NE
Washington, D.C. 20549
Re:
ShiftPixy, Inc.
Registration Statement on
Form S-3
Response dated December
1, 2022
File No. 333-267751
Ladies and Gentlemen:
Please find below the response of ShiftPixy,
Inc. (the “Company”, “we,” “us,” or “our”), to the comments raised by the staff (the
“Staff”) of the Securities and Exchange Commission in its letter dated December 1, 2022, relating to the above-referenced
registration statement.
For your convenience, the Staff’s comment
in each instance has been restated and is followed by the Company’s response.
Response dated December 1, 2022
General
1. We note your response to comment 3 that
the digital securities will be a “representation of a company’s common stock
that acts as a receipt for the deposit or purchase and ownership of shares in the company."
Please provide us with your analysis of whether such digital representations and receipts
are not new or separate securities, and therefore, you are not facilitating, or causing you
to engage in, transactions in unregistered securities. In responding to this comment, please
address the differences in holding the shares in book-entry form versus in tokenized form,
including any differences in shareholder rights such as transferability. Refer to Gary Plastic
Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 756 F.2d 230 (2d Cir.
1985) and Abrahamson v. Fleschner, 586 F.2d 862 (2d Cir. 1977).
2. We also note that it is not clear
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 Dep. 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 Dep. Finally,
based on your responses to the foregoing, please clarify how tokenized securities will be
withdrawn from the Upstream platform and returned to book-entry form with the transfer agent
and 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
Dep. on the books and records of the transfer agent.
3. Given that the Upstream platform
will facilitate resales of the tokenized securities, please clarify what you mean by the
statement that “Upstream does not allow third party transfers, withdrawals, or movements.
The shares may only be deposited and withdrawn to/by the same shareholder, and the shareholder
information must match the KYC pack.”
4. We note the statement that the transfer
agent will have “an individual share count per person/entity for shares that are not
deposited with either CEDE & Co. or MERJ Dep. for secondary trading.” 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?
5. Please clarify whether the tokenized
securities will be held in an omnibus account or whether the individual shareholders hold
the private keys.
6. Please explain what you mean by the
statements that MERJ Dep. will “manage” the tokenized securities.
7. Please explain how Upstream will
be able to prevent “transfers, withdrawals, or movements” of the tokenized securities.
8. We note your response to comment
4 that "[t]here is no current proposed Upstream offering by the Company," but Upstream's
website indicates that you are or plan to conduct a "Follow on Offering" of up
to $10 million with a minimum investment of $100. Please reconcile.
9. Please describe in greater detail
the KYC policies and procedures of Upstream. In responding to this comment, please clarify
the extent to which such KYC policies and procedures involve self-certification or IP address
monitoring.
Response:
The Company respectfully
acknowledges the staff's comments, notes that the Company has withdrawn its listing application with Upstream, plans to issue a press
release regarding such withdrawal on Monday, December 5, 2022, and requests that the staff consider the issue of the Company’s
listing with Upstream to be moot.
Should you have additional questions regarding
the information contained herein, please contact our counsel, Jeff Cahlon at 212-930-9700 or jcahlon@srf.law.
Sincerely,
/s/ Scott
W. Absher
Scott W. Absher
Chief Executive Officer
Response to SEC – 2022-12-02
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