As filed with the Securities and Exchange
Commission on April 7, 2022
Registration No. 333-259619
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 5
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ShiftPixy, Inc.
(Exact name of registrant as specified in its
charter)
Wyoming |
47-4211438 |
(State or other jurisdiction
of
incorporation or organization) |
(I.R.S. Employer
Identification Number) |
501 Brickell Key Drive, Suite 300
Miami, FL 33131
(888) 798-9100
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Scott W. Absher
Chief Executive Officer
501 Brickell Key Drive. Suite 300
Miami, FL 33131
(888) 798-9100
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Ivan K. Blumenthal, Esq.
Daniel A. Bagliebter, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C.
666 Third Avenue
New York, New York 10017
(212) 935-3000
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ¨
If
any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the
following box. x
If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement for
the same offering. ¨
If
this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If
this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If
this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging
growth company. See the definitions of “large accelerated filer,” “accelerated filer” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
|
Large
accelerated filer ¨ |
Accelerated
filer ¨ |
|
Non-accelerated
filter x |
Smaller
reporting company x |
|
|
|
|
Emerging
growth company x |
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
The information in this prospectus
is not complete and may be changed. A registration statement relating to these securities has been filed with the Securities and
Exchange Commission. The selling shareholders may not sell these securities until the Securities and Exchange Commission declares
the registration statement effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to
buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
APRIL 7, 2022
PROSPECTUS
15,423,200 Shares of Common Stock
The selling shareholders
of ShiftPixy, Inc. (“ShiftPixy,” “we,” “us” or the “Company”) listed beginning on
page 18 of this prospectus may offer and resell under this prospectus (i) up to 2,850,000 shares of our common stock, par value
$0.0001 per share (the “Common Stock”), and (ii) up to 12,573,200 shares of our Common Stock issuable upon exercise
of warrants, including pre-funded warrants and warrants issued by the Registrant to A.G.P./Alliance Global Partners and its affiliates
for compensation as placement agent in connection with the transactions described herein (collectively, the “Warrants”) acquired
by the selling shareholders under the Securities Purchase Agreement (the “Purchase Agreement”), dated August 31, 2021,
by and among the Company and the investor listed therein (the “Investor”) and the Placement Agent Agreement, dated August 31,
2021, by and between the Company and A.G.P./Alliance Global Partners (the “Placement Agent Agreement”).
We are registering the resale
of the shares of Common Stock covered by this prospectus as required by the Purchase Agreement and Placement Agent Agreement. The
selling shareholders will receive all of the proceePursuant to the requirements of the Securities Act of 1933, the registrant has duly
caused this registration statementds from any sales of the shares offered hereby. We will not receive any of the proceeds, but
we will incur expenses in connection with the offering. To the extent the Warrants are exercised for cash, if at all, we will receive
the exercise price of the Warrants.
The selling shareholders
may sell these shares through public or private transactions at market prices prevailing at the time of sale or at negotiated prices.
The timing and amount of any sale are within the sole discretion of the selling shareholders. Our registration of the shares of
Common Stock covered by this prospectus does not mean that the selling shareholders will offer or sell any of the shares. For further
information regarding the possible methods by which the shares may be distributed, see “Plan of Distribution” beginning on
page 22 of this prospectus.
Our Common Stock is listed
on The Nasdaq Capital Market under the symbol “PIXY.” The last reported sale price of our Common Stock on April 6, 2022 was
$0.63 per share.
Investing in our Common
Stock is highly speculative and involves a significant degree of risk. Please consider carefully the specific factors set forth
under “Risk Factors” beginning on page 10 of this prospectus and in our filings with the Securities and Exchange
Commission.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy
or adequacy of the disclosures in this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is
, 2022
ABOUT THIS PROSPECTUS
This prospectus is part
of a registration statement that we have filed with the U.S. Securities and Exchange Commission (the “SEC”) pursuant to which
the selling shareholders named herein may, from time to time, offer and sell or otherwise dispose of the shares of our Common Stock covered
by this prospectus. You should not assume that the information contained in this prospectus is accurate on any date subsequent
to the date set forth on the front cover of this prospectus or that any information we have incorporated by reference is correct on any
date subsequent to the date of the document incorporated by reference, even though this prospectus is delivered or shares of Common Stock
are sold or otherwise disposed of on a later date. It is important for you to read and consider all information contained in this
prospectus, including the documents incorporated by reference therein, in making your investment decision. You should also read
and consider the information in the documents to which we have referred you under “Where You Can Find Additional Information”
and “Information Incorporated by Reference” in this prospectus.
We have not authorized anyone
to give any information or to make any representation to you other than those contained or incorporated by reference in this prospectus.
You must not rely upon any information or representation not contained or incorporated by reference in this prospectus. This prospectus
does not constitute an offer to sell or the solicitation of an offer to buy any of our shares of Common Stock other than the shares of
our Common Stock covered hereby, nor does this prospectus constitute an offer to sell or the solicitation of an offer to buy any securities
in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. Persons who come
into possession of this prospectus in jurisdictions outside the United States are required to inform themselves about, and to observe,
any restrictions as to the offering and the distribution of this prospectus applicable to those jurisdictions.
Unless we have indicated
otherwise, or the context otherwise requires, references in this prospectus to “ShiftPixy,” the “Company,” “we,”
“us” and “our” refer to ShiftPixy, Inc.
PROSPECTUS
SUMMARY
This summary description
about us and our business highlights selected information contained elsewhere in this prospectus or incorporated by reference into this
prospectus. It does not contain all the information you should consider before investing in our securities. Important information
is incorporated by reference into this prospectus. To understand this offering fully, you should read carefully the entire prospectus,
including “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements,” together with the additional
information described under “Information Incorporated by Reference.”
Overview
We are a human capital
management (“HCM”) platform that provides real-time business intelligence along with HR services on a fee-based “software
as a service” (“SAAS”) business model. We provide human resources, employment compliance, insurance related, payroll,
and operational employment services solutions for our business clients (“clients” or “operators”) and shift work
or “gig” opportunities for worksite employees (“WSEs” or “shifters”). As consideration for providing
these services, we receive administrative or processing fees as a percentage of a client’s gross payroll, process and file payroll
taxes and payroll tax returns, provide workers’ compensation coverage and administration related services, and provide employee
benefits. The level of our administrative fees is dependent on the services provided to our clients which ranges from basic payroll processing
to a full suite of human resources information systems (“HRIS”) technology. Our primary operating business metric is gross
billings, consisting of our clients’ fully burdened payroll costs, which includes, in addition to payroll, workers’ compensation
insurance premiums, employer taxes, and benefits costs.
Our goal is to be the
best online fully-integrated workforce solution and employer services support platform for lower-wage workers and employment opportunities.
We have built an application and desktop capable marketplace solution that allows for workers to access and apply for job opportunities
created by our clients and to provide traditional back-office services to our clients as well as real-time business information for our
clients’ human capital needs and requirements.
We have designed our
business platform to evolve to meet the needs of a changing workforce and a changing work environment. We believe our approach and robust
technology will benefit from the observed demographic workplace shift away from traditional employee/employer relationships towards the
increasingly flexible work environment that is characteristic of the gig economy. We believe this change in approach began after the
2008 financial crisis and is currently being driven by the labor shortage created out of the COVID-19 economic crisis. We also believe
that a significant problem underpinning the lower wage labor crisis is the sourcing of workers and matching temporary or gig workers
to short-term job opportunities.
We have built our business
on a recurring revenue model since our inception in 2015. Our initial market focus has been to monetize a traditional staffing services
business model, coupled with developed technology, to address underserved markets containing predominately lower wage employees with
high turnover, including the light industrial, food service, restaurant, and hospitality markets.
Although we have recently
expanded into other industries, as noted below, for our fiscal year ended August 31, 2021 (“Fiscal 2021”), our primary focus
was on clients in the restaurant and hospitality industries, market segments traditionally characterized by high employee turnover and
low pay rates. We believe that these industries will be better served by our HRIS technology platform and related mobile smartphone application
that provides payroll and human resources tracking for our clients. The use of our HRIS platform should provide our clients with real-time
human capital business intelligence and we believe will result in lower operating costs, improved customer experience, and revenue growth.
All of our clients enter into service agreements with us or one of our wholly-owned subsidiaries to provide these services.
We believe that our
value proposition is to provide a combination of overall net cost savings to our clients, for which they are willing to pay increased
administrative fees that offset the costs of the services we provide, as follows:
|
• |
Payroll
tax compliance and management services; |
|
• |
Governmental
HR compliance such as for Patient Protection and Affordable Care Act (“ACA”) compliance requirements; |
|
• |
Reduced
client workers’ compensation premiums or enhanced coverage; |
|
• |
Access
to an employee pool of potential qualified applicants to reduce turnover costs; |
|
• |
Ability
to fulfill temporary worker requirements in a “tight” labor market with our intermediation (“job matching”)
services; and |
|
• |
Reduced
screening and onboarding costs due to access to an improved pool of qualified applicants who can be onboarded through a highly advanced,
efficient, and virtually paperless technology platform. |
We believe that providing
this baseline business, coupled with our technology solution, provides a unique, value-added solution to the HR compliance, staffing,
and scheduling problems that businesses face. Over the past eighteen months, in the face of the COVID-19 pandemic, we have instituted
various growth initiatives that are designed to accelerate our revenue growth. These initiatives include the matching of temporary job
opportunities between workers and employers under a fully compliant staffing solution through our HRIS platform. For this solution to
be effective, we need to obtain a significant number of WSEs in concentrated geographic areas to fulfill our clients’ unique staffing
needs and facilitate the client-WSE relationship.
The Private Placement
On August 31,
2021, we entered into a Securities Purchase Agreement with Armistice Capital Master Fund Ltd. (“Armistice”), pursuant to
which we issued and sold, in a private placement (the “Offering”), an aggregate of (i) 2,850,000 shares (the “Shares”)
of Common Stock, together with warrants (the “Common Warrants”) to purchase up to 2,850,000 shares of Common Stock, and (ii) 4,673,511
pre-funded warrants (the “Pre-funded Warrants”) with each Pre-funded Warrant exercisable for one share of Common Stock, together
with Common Warrants to purchase up to 4,673,511 shares of Common Stock (collectively, the “Offering”). Each share of Common
Stock and accompanying Common Warrant was sold together at a combined offering price of $1.595, and each Pre-funded Warrant and accompanying
Common Warrant was sold together at a combined offering price of $1.5949. The Pre-funded Warrants are immediately exercisable, at a nominal
exercise price of $0.0001, and may be exercised at any time until all of the Pre-funded Warrants are exercised in full. The Common Warrants
have an exercise price of $1.595 per share, are immediately exercisable and expire five years from the effective date of this registration
statement.
In connection with
the Offering, we entered into a Placement Agent Agreement with A.G.P./Alliance Global Partners (the “Placement Agent”), pursuant
to which the Placement Agent acted as the exclusive placement agent in connection with the Offering. Pursuant to the Placement Agent
Agreement, we agreed to pay the Placement Agent a fee equal to 7.0% of the aggregate gross proceeds from the Offering. In addition to
the cash fee, we agreed to issue to the Placement Agent warrants to purchase an aggregate of up to five percent (5%) of the aggregate
number of Shares and shares of Common Stock issuable upon exercise of the Pre-funded Warrants sold in the Offering (the “Placement
Agent Warrants” and, together with the Common Warrants and the Pre-funded Warrants, the “Warrants”). The Placement
Agent Warrants are exercisable for a period commencing six months from issuance and expiring four years from the effective date of this
registration statement, and have an initial exercise price of $1.7545 per share.
In connection with
the Offering, we are obligated, among other things, to (i) file a registration statement with the SEC within 15 days following the
closing of the Offering for purposes of registering the Shares and the shares of Common Stock issuable upon exercise of the Warrants,
including the Pre-funded Warrants and the Placement Agent Warrants, for resale by the selling shareholders, (ii) use our commercially
reasonable best efforts to have the registration statement declared effective within sixty (60) days after closing of the Offering (or
ninety (90) days after the closing of the Offering if the registration statement is reviewed by the SEC), and (iii) maintain the
registration until the selling shareholder no longer hold any Shares or Warrants, including Pre-funded Warrants and Placement Agent Warrants.
As described in detail
below, a portion of the proceeds of the Offering has been devoted to our funding activities in connection with our sponsorship, through
one of our wholly owned subsidiaries, of Industrial Human Capital, Inc. (“IHC”), our special purpose acquisition company,
or “SPAC,” which consummated its initial public offering on October 22, 2021. We expect to devote a portion of the proceeds
from the exercise of any warrants issued pursuant to the Offering to funding IHC’s initial business combination (“IBC”),
as detailed below. We believe that IHC, upon completing its IBC, will have a material positive impact on our results of operations. Nevertheless,
the failure of IHC to complete its IBC would likely have a material adverse effect on our results of operations and future results. For
further discussion, please refer to the “Risk Factors”, below, including the discussion under the heading “There
is no guarantee that our current cash position, expected revenue growth and anticipated financing transactions will be sufficient to
fund our operations for the next twelve months. Our sponsorship of IHC requires significant capital deployment, entails certain risks
and may not be successful, which would likely have a material adverse effect on our future expansion, revenues, and profits.”
The foregoing descriptions
of the Purchase Agreement, the Placement Agent Agreement, the form of Warrant and the form of Pre-funded Warrant are not complete and
are subject to and qualified in their entirety by reference to the Purchase Agreement, the form of Warrant and the form of Pre-funded
Warrant, respectively, copies of which are attached as Exhibits 10.1, 10.2, 4.1 and 4.2, respectively, to the Current Report on Form 8-K
dated August 31, 2021, and are incorporated herein by reference
Recent Developments
Warrant Exercise
On January 26,
2022, we entered into a Warrant Exercise Agreement (the “Exercise Agreement”) with Armistice to cash exercise certain of
their warrants to purchase up to an aggregate of 4,948,453 shares of Common Stock (the “Existing Warrants”). The Existing
Warrants were initially issued on May 17, 2021 with an exercise price per share of $2.425,
were immediately exercisable and were set to expire on June 15, 2026.
Pursuant to the Exercise Agreement, to induce Armistice to cash exercise the Existing Warrants, (i) the exercise price per share of the
Existing Warrants was reduced to $1.20 and (ii) we issued Armistice a new warrant to purchase up to an aggregate of 9,896,906 shares
of Common Stock (the “New Warrant”), with such New Warrant to be issued on the basis of two New Warrant shares for each share
of the Existing Warrant that is exercised for cash (the “Warrant Exercise”). The New Warrant has an exercise price per share
of $1.55, is exercisable commencing July 28, 2022 and is set to expire on July 28, 2027. We received aggregate gross proceeds of approximately
$5.9 million from the cash exercise of the Existing Warrants. The Existing Warrants and the underlying shares of Common Stock were registered
pursuant to our Registration Statement on Form S-3 (File No. 333-256834), filed with the SEC under the Securities Act of 1933,
as amended (the “Securities Act”), on June 4, 2021, and declared effective on June 15, 2021.
Vensure Litigation
On September 7, 2021,
Shiftable HR Acquisition, LLC, a wholly-owned subsidiary of Vensure Employer Services, Inc. (collectively, “Vensure”), filed
a complaint (the “Complaint”) in the Court of Chancery of the State of Delaware asserting claims against us for breach of
contract and declaratory judgment arising from the January 2020 Asset Purchase Agreement (the “APA”) between Vensure and
us, pursuant to which Vensure purchased certain assets from us for total consideration of $19 million in cash, with $9.5 million to be
paid at closing, and the remainder to be paid in 48 equal monthly installments (the “Installment Sum”). The Complaint does
not specify the amount of damages sought and, in any event, we believe that, even if Vensure were to prevail, the amount recoverable
would be less than the Installment Sum due to us under the APA but unpaid to date after offsetting any such recovery. Nevertheless, we
deny Vensure’s claims and intend to defend the lawsuit vigorously while pursuing recovery of the unpaid Installment Sum from Vensure.
Accordingly, on November 4, 2021, the Company filed its Answer and Counterclaim to Vensure’s Complaint, in which it not only denied
Vensure’s claims, but also asserted counterclaims for breach of contract and tortious interference with contract.
May 2021 Private Placement
On May 13, 2021, we
entered into a Securities Purchase Agreement with Armistice, pursuant to which we issued and sold, in a private placement (the “May
Offering”), an aggregate of (i) 2,320,000 shares (the “May Shares”) of Common Stock, together with warrants (the “May
Common Warrants”) to purchase up to 2,320,000 shares of Common Stock, and (ii) 2,628,453 pre-funded warrants (the “May Pre-funded
Warrants”) with each May Pre-funded Warrant exercisable for one share of Common Stock, together with May Common Warrants to purchase
up to 2,628,453 shares of Common Stock. Each share of Common Stock and accompanying May Common Warrant was sold together at a combined
offering price of $2.425, and each May Pre-funded Warrant and accompanying May Common Warrant was sold together at a combined offering
price of $2.4249. The May Pre-funded Warrants were immediately exercisable, at a nominal exercise price of $0.0001, and may be exercised
at any time until all of the May Pre-funded Warrants are exercised in full. The May Common Warrants had an exercise price of $2.425 per
share, were immediately exercisable and were set to expire on June 15, 2026. The May Common Warrants were exercised in connection with
the Warrant Exercise.
In connection with
the May Offering, we entered into a Placement Agent Agreement (the “May Placement Agent Agreement”) with the Placement Agent,
pursuant to which the Placement Agent acted as the exclusive placement agent in connection with the May Offering. Pursuant to the May
Placement Agent Agreement, we agreed to pay the Placement Agent a fee equal to 7.0% of the aggregate gross proceeds from the May Offering.
In addition to the cash fee, we issued to the Placement Agent warrants to purchase an aggregate of up to five percent (5%) of the aggregate
number of the May Shares and shares of Common Stock issuable upon exercise of the May Pre-funded Warrants sold in the May Offering (the
“May Placement Agent Warrants”). The May Placement Agent Warrants are exercisable for a period commencing on November 17,
2021 and expiring June 15, 2025, and have an initial exercise price of $2.6675 per share.
Sponsorship of Special Purpose Acquisition
Companies
On April 29, 2021,
we announced our sponsorship, through our wholly-owned subsidiary, ShiftPixy Investments, Inc. (“Investments”), of four
SPAC IPOs but have since withdrawn the initial public offering registration statements related to three such SPACs in order to focus
on the growth and expansion of our Company and to completing IHC’s IBC. The registration statement and prospectus relating to the
IHC initial public offering (“IHC IPO”) was declared effective by the SEC on October 19, 2021, and IHC units (the “IHC
Units”), consisting of one share of common stock and an accompanying warrant to purchase one share of IHC common stock, began trading
on the New York Stock Exchange (“NYSE”) on October 20, 2021. The IHC IPO closed on October 22, 2021, raising gross proceeds
of $115 million for IHC. In connection with the IHC IPO, we purchased, through Investments, 4,639,102 private placement warrants at a
price of $1.00 per warrant, for an aggregate purchase price of $4,639,102. IHC currently intends to use the proceeds of the IHC IPO to
acquire companies in the light industrial segment of the staffing industry, and our goal is to enter into one or more CSAs with IHC following
its IBC. Immediately following the IHC IPO, IHC began to evaluate acquisition candidates. IHC has twelve months to complete its
IBC from the closing of the IHC IPO. We currently own, through Investments, approximately 15% of the issued and outstanding stock of
IHC.
We expect to invest
or otherwise extend capital, through Investments, totaling up to approximately $6,164,102 in connection with our sponsorship of IHC,
including $25,000 to purchase founder shares (the “Founder Shares”) (previously paid on February 18, 2021), $4,639,102 to
purchase private placement warrants (previously paid on October 22, 2021) and up to $1.5 million in working capital loans to IHC to finance
transaction costs in connection with IHC’s IBC. To date, we have not extended any such working capital loans, nor have we determined
the terms upon which any such working capital loans would be extended and/or repaid, though up to $1,500,000 of such working capital
loans extended to IHC may be convertible into private placement warrants of IHC’s post business combination entity, at a price
of $1.00 per warrant at our option. If we extend working capital loans to IHC and it does not consummate its IBC, such working capital
loans are unlikely to be repaid.
We expect IHC to operate
as a separately managed, publicly traded entity following the completion of its IBC, or “De-SPAC”. We anticipate entering
into service agreements with IHC’s post business combination staffing entities that will allow it to participate in our HRIS platform.
We believe that our sponsorship of IHC focusing upon its IBC within the staffing industry has the potential to generate significant revenues
and earnings for us.
We may receive up to
approximately $12.66 million in aggregate gross proceeds from cash exercises of the Warrants, based on the per share exercise price of
the Warrants. The holders of the Warrants are not obligated to exercise their Warrants, and we cannot predict whether holders of the
Warrants will choose to exercise all or any of their Warrants. We do not currently have financing plans but we expect to obtain additional
financing in the form of public or private equity offerings over the next twelve months as described above to extend loans to IHC in
connection with its IBC if required.
Our board of directors
(the “Board”) recently passed a resolution determining that we should not pursue direct acquisition opportunities at this
time, but should instead use available capital that could be used for acquisitions to support our sponsorship of the SPACs, including
the acquisition activities being conducted by IHC. As a result, we are devoting a substantial portion of our working capital to supporting
the activities of IHC as it progresses toward its IBC, which includes time and expense devoted to evaluating acquisition candidates,
conducting due diligence, advancing legal and audit fees, and assisting in the recruitment of top management following De-SPAC. We anticipate
that certain of the gross proceeds of any Warrant exercises will support these activities, depending on their timing. Accordingly, we
do not believe at present that there is a substantial likelihood that IHC will compete with us for suitable acquisition targets. Further,
we do not anticipate that IHC will enter into an IBC with a target business that will be affiliated with us, Investments, or any of our
officers or directors. To the extent IHC proposes to enter into a business combination with such an affiliated person or related party,
such transaction would be negotiated on an arms’ length basis and be subject to Board and shareholder approvals, as appropriate.
Launch of ShiftPixy Labs
We also announced,
in July 2020, our “ShiftPixy Labs” initiative, which includes the development of ghost kitchens in conjunction with our wholly-owned
subsidiary, ShiftPixy Ghost Kitchens, Inc. Through this initiative, we intend to bring various food delivery concepts to market
that will combine with our HRIS platform to create an easily replicated, comprehensive food preparation and delivery solution. The initial
phase of this initiative is being implemented in our dedicated kitchen facility located in close proximity to our Miami headquarters,
which we are already showcasing through the distribution of video programming on social media produced and distributed by our wholly
-owned subsidiary, ShiftPixy Productions, Inc. If successful, we intend to replicate this initiative in similarly constructed facilities
throughout the United States and in selected international locations. We also intend to provide similar services via mobile kitchen concepts,
all of which will be heavily reliant on our HRIS platform and which we believe will capitalize on trends observed during the COVID-19
pandemic toward providing customers with a higher quality prepared food delivery product that is more responsive to their needs.
Impact of COVID-19
The COVID-19 pandemic
continues to provide both business setbacks and business opportunities. Our growth trajectory has been muted by the economic impacts
of the COVID-19 pandemic on our core business clients, primarily restaurants and nurse staffing organizations supplying health services
not related to COVID-19.
The COVID-19 pandemic
has significantly impacted and delayed our expected growth, which we saw initially through a decrease in our billed customers and WSEs
beginning in mid-March 2020, when the State of California first implemented “lockdown” measures. Substantially all of our
billed WSEs as of February 29, 2020 worked for clients located in Southern California, and were primarily in the QSR industry. Many of
these clients were required to furlough or lay off employees or, in some cases, completely shutter their operations. For our clients
serviced prior to the March 2020 pandemic lockdown, we experienced an approximate 30% reduction in business levels within six weeks after
the first lockdown commenced. Early in the pandemic, the combination of our sales efforts and the tools that our services provide to
businesses impacted by the COVID-19 pandemic resulted in additional business opportunities for new client location additions, as did
the fact that many of our clients received Payroll Protection Plan loans (“PPP Loans”) under the CARES Act, which supported
their businesses and payroll payments during in-store lockdowns. Nevertheless, during the quarter ended May 31, 2020, our WSE billings
per client location decreased as many of our clients were forced to cease operations or reduce staffing. On July 13, 2020, the Governor
of the State of California re-implemented certain COVID-19 related lockdown restrictions in most of the counties in the state, including
those located in Southern California where most of our clients were located. The mercurial nature of the pandemic led to recurring lockdowns
through the issuance of additional orders by state and county health authorities that yielded uneven patterns of business openings and
closings throughout our clients’ markets, which also experienced significant lockdowns beginning in late November 2020 and through
the year-end holiday season as a spike in COVID-19 cases was observed.
The negative impact
of these lockdowns on our business and operations continued through our third quarter of Fiscal 2021 in a see-saw pattern, with some
improvement observed after the removal of many restrictions in California and elsewhere from March through June 2021, only to be followed
by the reimplementation of restrictions in the face of the pandemic resurgence fueled by the spread of the Delta variant of the virus.
While the availability of PPP Loans to our clients mitigated the negative impact on our business during the initial stages of the pandemic,
we believe that the failure of the government to renew this program exacerbated the deleterious impact of subsequent restrictions and
lockdowns on our financial results for Fiscal 2021. We have observed some degree of business recovery as these lockdowns have relaxed
and vaccination efforts have accelerated, and we believe that, to the extent that COVID-19 infection rates continue to decrease, and
vaccination rates increase, governmental authorities will continue to remove restrictions, which will fuel our clients’ business
recoveries. Nevertheless, we remain concerned that the recent resurgence of the virus, in the form of the Omicron variant, could have
a material negative impact on our business and results of operations, as could the emergence of additional variants of the virus in the
future.
We have also experienced
increases in our workers’ compensation reserve requirements, and we expect additional workers’ compensation claims to be
made by furloughed employees. We also expect additional workers’ compensation claims to be made by WSEs required to work by their
employers during the COVID-19 pandemic. On May 4, 2020, the State of California indicated that workers who became ill with COVID-19 would
have a potential claim against workers’ compensation insurance for their illnesses. These additional claims, to the extent they
materialize, could have a material impact on our workers’ compensation liability estimates.
Going Concern
As of November 30,
2021, we had cash of $2.1 million and a working capital deficit of $11.9 million. We have incurred recurring losses, which has resulted
in an accumulated deficit of $158.1 million as of November 30, 2021. The recurring losses and cash used in operations are indicators
of substantial doubt as to our ability to continue as a going concern for at least one year from issuance of the audited financial statements
incorporated in our Annual Report on Form 10-K for the fiscal year ended August 31, 2021. Our plans to alleviate substantial
doubt are discussed below and elsewhere in our Annual Report on Form 10-K for the fiscal year ended August 31, 2021.
Historically, our principal
source of financing has come through the sale of our common stock and issuance of convertible notes. In May 2020, we successfully completed
an underwritten public offering, raising a total of $12 million ($10.3 million net of costs), and closed an additional $1.35 million
($1.24 million net of costs) between June 1, 2020 and July 7, 2020 pursuant to the underwriter’s overallotment. In October 2020,
we closed an additional $12 million equity offering ($10.7 million net of costs). In May 2021, we raised approximately $12 million ($11.1
million net of costs) in connection with the sale of common stock and warrants. More recently, in September 2021, we raised approximately
$12 million ($11.1 million net of costs) in connection with the sale of common stock and warrants. Our plans and expectations for the
next twelve months include raising additional capital to help fund expansion of our operations, including the continued development and
support of our information technology (“IT”) and HRIS platform, as well as our activities in connection with our sponsorship
of IHC described above. We expect to continue to invest in our HRIS platform, ShiftPixy Labs, our sponsorship of IHC and other growth
initiatives, all of which have required and will continue to require significant cash expenditures.
We have been and expect
to continue to be impacted by the COVID-19 pandemic, from which we have experienced both positive and negative impacts. Our current business
focus is providing human capital and payroll services for the restaurant and hospitality industries, which have seen a reduction in payroll
and consequently a reduction in payroll processing fees on a per WSE and per location basis. However, we believe that we provide the
means for current and potential clients to adapt to many of the obstacles posed by COVID-19 by offering additional services such as delivery,
which have facilitated an increase in our client and client location counts, resulting in recovery of billings lost during the first
months of the pandemic. Beginning in June 2020, our billings per WSE and per location improved as lockdowns in its primary Southern
California market were lifted. Although the State of California re-implemented lockdowns in November 2020, we believe that many
of our clients have modified their businesses after the initial lockdowns to adapt somewhat to these adverse circumstances. Further,
the recent acceleration in the roll-out of COVID-19 vaccines throughout California and the entire country has resulted in an easing of
business operating restrictions. Nevertheless, if lockdowns resume, our client’s delay hiring or rehiring employees, or if our
clients shut down operations, our ability to generate operational cash flows may be significantly impaired.
Risks Associated with Our Business
Our business and our
ability to implement our business strategy are subject to numerous risks, as more fully described in the section entitled “Risk
Factors” in this prospectus and in our Annual
Report on Form 10-K for the fiscal year ended August 31, 2021 (the “Annual Report”), incorporated herein by
reference. You should read these risks before you invest in our securities. We may be unable, for many reasons, including those that
are beyond our control, to implement our business strategy.
Corporate Information
We were incorporated
under the laws of the State of Wyoming on June 3, 2015. Our principal executive office is located at 501 Brickell Key Drive, Suite 300,
Miami, FL 33131, and our telephone number is (888) 798-9100. Our website address is www.shiftpixy.com. Our website does not form a part
of this prospectus and listing of our website address is for informational purposes only.
THE OFFERING
Shares
of Common Stock |
Up
to 15,423,200 shares of Common Stock. |
that May be Offered
by the |
|
Selling Shareholders |
|
|
|
Use of Proceeds |
We will not receive any
proceeds from the sale of the Common Stock by the selling shareholders. However, if all of the Warrants were exercised
for cash, we would receive gross proceeds of approximately $12.66 million. We intend to use the proceeds we receive from
the exercise of the Warrants to fund approximately $1.5 million working capital loans to IHC to finance transaction costs in
connection with IHC’s IBC and for general corporate purposes, including working capital, operating expenses and capital
expenditures.
|
Use of
Proceeds |
See the
section titled “Use of Proceeds” for additional information. |
|
|
Offering Price |
The
selling shareholders may sell all or a portion of their shares through public or private transactions at prevailing market prices
or at privately negotiated prices. |
|
|
Nasdaq Capital Market
Symbol |
“PIXY” |
|
|
Risk Factors |
Investing
in our Common Stock involves a high degree of risk. See “Risk Factors” included in this prospectus and beginning
on page 19 of the Annual Report, incorporated by reference herein, and any other risk factors described in the documents incorporated
by reference herein, for a discussion of certain factors to consider carefully before deciding to invest in our Common Stock. |
Throughout this prospectus,
when we refer to the shares of our Common Stock being registered on behalf of the selling shareholders for offer and sale, we are referring
to the shares of Common Stock sold to the selling shareholders, as well as the shares of Common Stock issuable upon exercise of the Warrants,
each as described under “The Offering” and “Selling Shareholders.” When we refer to the selling shareholders
in this prospectus, we are referring to the selling shareholders identified in this prospectus and, as applicable, their donees, pledgees,
transferees or other successors-in-interest selling shares of Common Stock or interests in shares of Common Stock received after the
date of this prospectus from a selling shareholder as a gift, pledge, partnership distribution or other transfer.
RISK FACTORS
Investing in our securities
involves a high degree of risk. You should carefully consider and evaluate all of the information contained in this prospectus
and in the documents we incorporate by reference into this prospectus before you decide to purchase our securities. In particular,
you should carefully consider and evaluate the risks and uncertainties described below and under the heading “Risk Factors”
in the Annual Report. Any of the risks and uncertainties set forth below and in the Annual Report, as updated by annual, quarterly
and other reports and documents that we file with the SEC and incorporate by reference into this prospectus, or any prospectus, could
materially and adversely affect our business, results of operations and financial condition, which in turn could materially and adversely
affect the value of any securities offered by this prospectus. As a result, you could lose all or part of your investment.
Risks Relating to Our Business
There is no guarantee that our current
cash position, expected revenue growth and anticipated financing transactions will be sufficient to fund our operations for the next
twelve months. Our sponsorship of IHC requires significant capital deployment, entails certain risks and may not be successful, which
would likely have a material adverse effect on our future expansion, revenues, and profits.
As of November 30, 2021,
we had cash of $2.1 million and a working capital deficit of $11.9 million. We have incurred recurring losses, which has resulted in
an accumulated deficit of $158.1 million as of November 30, 2021. The recurring losses and cash used in operations are indicators of
substantial doubt as to our ability to continue as a going concern for at least one year from issuance of the audited financial statements
incorporated in our Annual Report on Form 10-K for the fiscal year ended August 31, 2021. Our plans to alleviate substantial
doubt are discussed below and elsewhere in our Annual Report on Form 10-K for the fiscal year ended August 31, 2021.
Historically, our principal
source of financing has come through the sale of our common stock and issuance of convertible notes. In May 2020, we successfully completed
an underwritten public offering, raising a total of $12 million ($10.3 million net of costs), and closed an additional $1.35 million
($1.24 million net of costs) between June 1, 2020 and July 7, 2020 pursuant to the underwriter’s overallotment. In October 2020,
we closed an additional $12 million equity offering ($10.7 million net of costs). In May 2021, we raised approximately $12 million ($11.1
million net of costs) in connection with the sale of common stock and warrants. More recently, in September 2021, we raised approximately
$12 million ($11.1 million net of costs) in connection with the sale of common stock and warrants. Our plans and expectations for the
next twelve months include raising additional capital to help fund expansion of our operations, including the continued development and
support of our IT and HRIS platform, as well as our activities in connection with our sponsorship of IHC described above. We expect to
continue to invest in our HRIS platform, ShiftPixy Labs, our sponsorship of IHC and other growth initiatives, all of which have required
and will continue to require significant cash expenditures.
We do not currently have
financing plans but we expect to obtain additional financing in the form of public or private equity offerings over the next twelve months
as described above to extend loans to IHC in connection with its IBC if required. There is no assurance that IHC will be able to
consummate its IBC within twelve months from the closing of the IHC IPO, in which case IHC would cease all operations except for the
purpose of winding up. While we believe that IHC, after completing its IBC, will generate significant revenues for us by virtue of entering
into CSAs and/or other contractual relationships with us after completing the De-SPAC process, we are unable to rely with certainty on
IHC to generate revenue in the future.
We expect to invest or
otherwise extend capital, through Investments, totaling up to approximately $6,164,102 in connection with our sponsorship of IHC, including
$25,000 to purchase Founder Shares (previously paid on February 18, 2021), $4,639,102 to purchase private placement warrants (previously
paid on October 22, 2021) and up to $1.5 million in working capital loans to IHC to finance transaction costs in connection with IHC’s
IBC. To date, we have not extended any such working capital loans, nor have we determined the terms upon which any such working capital
loans would be extended and/or repaid, though up to $1,500,000 of such working capital loans extended to IHC may be convertible into
private placement warrants of IHC’s post business combination entity, at a price of $1.00 per warrant at our option. If we extend
working capital loans to IHC and it does not consummate its IBC, such working capital loans are unlikely to be repaid.
We will lose our entire
investment in IHC if it is unable to consummate its IBC. We have withdrawn the initial public offering registration statements of Vital,
TechStackery and Firemark in order to focus on the growth and expansion of our Company and to completing IHC’s IBC. The combined
value of our equity investment in our sponsored SPACs, as carried on the consolidated balance sheet included in the financial statements
accompanying our Annual Report on Form 10-K, filed with the SEC on December 3, 2021, is $47,472,000, which we have computed in accordance
with accounting principles generally accepted in the United States, and which constitutes the majority of the carrying value of our total
assets as reflected on our consolidated balance sheet; however, we expect our forfeiture of Founder Shares of Vital, TechStackery and
Firemark to significantly decrease the value of our equity investment described above. Further, if IHC is unable to consummate its IBC,
then our Founder Shares and private placement warrants in IHC will be worthless. Even if IHC is able to consummate its IBC, we can provide
no assurance that the value of our equity investment in IHC will not decline significantly based upon a variety of factors, including,
without limitation, stockholder and general market reaction to IHC’s IBC, redemption requests received from IHC stockholders in
connection with any proposed IBC, and IHC stockholder dilution resulting from additional capital raises or other financing transactions
undertaken by IHC in connection with its IBC.
We expect our investment
in our HRIS platform to continue over the next twelve months regardless of whether we enter into client services agreements with IHC’s
post business combination entity, and regardless of whether IHC is able to complete successfully the De-SPAC process, as we believe such
investments will be necessary to support our existing clients as well as our future organic growth. While we anticipate that these investments
will yield benefits to us in the future in the form of increased revenues and earnings, it is likely that such improved financial results
will be delayed or otherwise materially impacted if we are unable to enter successfully into client services agreements with IHC’s
post business combination entity on terms that are beneficial to us, or if IHC is unable to complete its IBC.
We believe that our current
cash position, along with our cost controls, projected revenue growth and anticipated financing from potential institutional investors,
will be sufficient to alleviate substantial doubt and fund our operations for at least a year from the date of this Form 10-K. If these
sources do not provide the capital necessary during the next twelve months, we may need to curtail certain aspects of our operations
or expansion activities, consider the sale of additional assets, or consider other means of financing. We can give no assurance that
we will be successful in implementing our business plan and obtaining financing on terms that are advantageous to us, or that any such
additional financing will be available.
We will lose our entire investment in IHC
if IHC does not complete its initial business combination and our officers may have a conflict of interest in determining whether a particular
business combination target is appropriate for IHC.
On April 29, 2021, we
announced our sponsorship, through Investments, of four SPAC IPOs, but have since withdrawn the initial public offering registration
statements of three such SPACs in order to focus on the growth and expansion of our company and to completing IHC’s IBC. We purchased
Founder Shares in each SPAC, through Investments, for an aggregate purchase price of $100,000, or $25,000 per SPAC. The number of Founder
Shares issued to us was determined based on the expectation that such Founder Shares would represent 15% of the outstanding shares of
each SPAC after its initial public offering (excluding the private placement warrants described below and their underlying securities).
We are likely to be able to make a substantial profit on our nominal investment in the Founder Shares of IHC even at a time when IHC’s
public shares have lost significant value. On the other hand, the IHC Founder Shares will be worthless if it does not complete its IBC.
Accordingly, Investments will benefit from the completion of IHC’s IBC and may be incentivized to complete an IBC of a less favorable
target company or on terms less favorable to stockholders rather than liquidate.
The registration statement
and prospectus relating to IHC’s IPO was declared effective by the SEC on October 19, 2021, and IHC units (the “IHC Units”),
consisting of one share of common stock and an accompanying warrant to purchase one share of IHC common stock, began trading on the NYSE
on October 20, 2021. The IHC IPO closed on October 22, 2021, raising gross proceeds for IHC of $115 million. In connection with the IHC
IPO, we purchased, through our wholly-owned subsidiary, 4,639,102 placement warrants at a price of $1.00 per warrant, for an aggregate
purchase price of $4,639,102. The IHC private placement warrants will be worthless if IHC does not complete an IBC. Each whole private
placement warrant is exercisable to purchase one whole share of common stock in each SPAC at $11.50 per share. Also, as previously disclosed,
on February 18, 2021, we invested an aggregate of $100,000 to purchase Founder Shares in all four of our sponsored SPACs through Investments,
though we now intend to forfeit the Founder Shares of Vital, TechStackery and Firemark.
The investment amounts set
forth above do not include loans that Investments has extended to our four SPACs. As of the date of this prospectus, Investments has
been fully repaid by IHC; however, Investments previously extended loans to Vital, TechStackery and Firemark in an aggregate amount of
$550,000 to cover IPO-related and organizational expenses of each SPAC, including SEC registration, legal and auditing fees, which we
do not expect to be repaid.
In addition, we may extend
working capital loans to IHC to finance transaction costs in connection with IHC’s IBC. To date, we have not extended any such
working capital loans, nor have we determined the terms upon which any such working capital loans would be extended and/or repaid. Up
to $1,500,000 of such working capital loans may be convertible into private placement warrants of IHC’s post business combination
entity, at a price of $1.00 per warrant at our option. If we extend working capital loans to IHC and IHC does not consummate its IBC,
such working capital loans are unlikely to be repaid.
We do not currently have
financing plans but we expect to obtain additional financing in the form of public or private equity offerings over the next twelve months
as described above to purchase private placement warrants and to extend loans to IHC in connection with its IBC.
The interests of our officers
who also serve as officers of IHC, and Mr. Absher, our Chairman and Chief Executive Officer who also serves as Chairman of the Board
of Directors of IHC, may influence their motivation in identifying and selecting a target business combination for IHC, completing IHC’s
IBC and influencing the operation of the business following IHC’s IBC.
There is no assurance that
IHC will be able to complete its IBC within the next twelve months. While we believe that IHC, after completing its IBC, will generate
significant revenues for us by virtue of entering into CSAs and/or other contractual relationships with us after completing the De-SPAC
process, we are unable to rely with certainty on IHC to generate revenue in the future.
We expect our investment
in our HRIS platform to continue over the next twelve months regardless of whether we enter into CSAs with the SPACs, and regardless
of whether IHC is able to complete successfully the De-SPAC process, as we believe such investments will be necessary to support our
existing clients as well as our future organic growth. While we anticipate that these investments will yield benefits to us in the future
in the form of increased revenues and earnings, it is likely that such improved financial results will be delayed or otherwise materially
impacted if we are unable to enter successfully into CSAs with IHC’s post business combination entity on terms that are beneficial
to us, or if IHC is unable to complete its IBC.
Certain of our
officers and directors have potential conflicts of interest arising from our sponsorship activities of IHC.
Our officers may not commit
their full time to our affairs, which may result in a conflict of interest in allocating their time between our operations and IHC.
All of our officers are engaged with IHC and our officers are not obligated to contribute any specific number of hours per week to our
affairs. All of our officers serve as officers of IHC and Mr. Absher, our Chairman and Chief Executive Officer, also serves as Chairman
of the Board of Directors of IHC. While we do not believe that the time devoted to IHC will undermine their ability to fulfill their
duties with respect to our Company, if the business affairs of IHC require them to devote substantial amounts of time to such affairs,
it could limit their ability to devote time to our affairs which may have a negative impact on our operations. The interests of each
of these individuals in our Company and IHC may influence their motivation in identifying and selecting a target business combination,
completing an IBC and influencing the operation of our business following IHC’s IBC.
None of our officers or
directors (i) hold any equity interest in IHC, (ii) receive any form of compensation from IHC, or (iii) have any pecuniary interest related
to IHC separate and apart from their pecuniary interest in our Company. While Messrs. Absher, Carney and Gans, as officers and/or directors
of both our Company and IHC, owe fiduciary duties to each entity, our Board has considered this matter and determined that no disabling
conflict of interest has arisen or is likely to arise that would prevent these individuals from discharging their fiduciary duties on
behalf of our Company. As a result, our Board has (i) approved our sponsorship of IHC through our subsidiary, Investments, (ii) approved
Messrs. Absher, Carney and Gans serving as officers and/or directors of IHC, and (iii) approved the allocation of additional ShiftPixy
resources, including financial backing and personnel, for the purpose of supporting the activities of IHC as it pursues its IBC. Further,
we do not anticipate that IHC will enter into an IBC with a target business affiliated with us, Investments, or any of our officers or
directors. To the extent IHC were to propose a business combination with such an affiliated person or related party, such transaction
would be negotiated on an arms’ length basis and be subject to Board and shareholder approvals, as appropriate.
If we are deemed to be an investment company
under the Investment Company Act of 1940, we may be required to institute burdensome compliance requirements and our activities may be
restricted, which may make it difficult for us to conduct our operating business and our IHC sponsorship activities.
Section
3(a)(1)(C) of the Investment Company Act 1940 (the “1940 Act”) defines as an investment company any issuer that is engaged
or proposes to engage in the business of investing, reinvesting, owning, holding or trading in securities and owns or proposes to acquire
investment securities having a value exceeding 40% of the value of the issuer’s total assets (exclusive of Government securities
(as defined in the 1940 Act) and cash items) on an unconsolidated basis (the “40% Threshold”). We acquired the Founder Shares
on April 22, 2021 and we believe that we exceeded the 40% Threshold on October 19, 2022 in connection with the pricing of IHC’s
IPO exclusive of Government securities and cash items. Investments acquired 4,312,500 Founder Shares on April 22, 2021 for an aggregate
purchase price of $25,000, or approximately $0.006 per share. Prior to the pricing of IHC’s IPO on October 19, 2021, there was
substantial doubt as to whether the IPO would be completed on the proposed terms, or at all, and therefore, the fair market value of
the Founder Shares owned by us had significantly less value than $10.00 per unit, the IPO price. On October 19, 2022, upon pricing of
IHC’s IPO, the Founder Shares had a market value of $21,100,000 based on the $10.00 per unit offering price. Accordingly, we believe
that October 19, 2022 is the beginning of the one-year temporary safe harbor under Rule 3a-2 promulgated under the 1940 Act, as described
below.
Rule 3a-2 provides a temporary
safe harbor from application of the 1940 Act’s provisions to certain issuers that are in transition to a non-investment company
business. Specifically, Rule 3a-2 deems an issuer that meets the definition of “investment company” in Section 3(a)(1)(A)
or 3(a)(1)(C) of the 1940 Act not to be an investment company for a period not to exceed one year, provided that the conditions of the
rule are satisfied. Pursuant to Rule 3a-2, the one-year period begins on the earlier of: (i) the date on which an issuer owns securities
and/or cash having a value exceeding 50% of the value of such issuer’s total assets on either a consolidated or unconsolidated
basis; or (ii) the date on which an issuer owns or proposes to acquire investment securities having a value exceeding the 40% Threshold.
Accordingly, we believe that our IHC sponsorship activities fall within the safe harbor under Rule 3a-2 of the 1940 Act, which allows
a 3(a)(1)(C) investment company (as a “transient investment company”) a grace period of one year from the date of classification,
to avoid registration under the 1940 Act. The SEC’s IM Guidance Update No. 2017-03 (March 2017) specifically states that the “purpose
of Rule 3a-2 is to temporarily relieve certain issuers that are in transition to a non-investment company business from the registration
and other requirements of the 1940 Act.” In that guidance, the Staff of the SEC also acknowledged that the “one-year period
for transient investment companies should be available to issuers that have a bona fide intent to be engaged primarily in a non-investment
company business.” As provided in Rule 3a-2, during the one-year period, the issuer must undertake activities that are consistent
with an objective to no longer be an “investment company” by the end of this period. In addition, the issuer’s board
of directors must adopt a resolution that commits the issuer to undertake activities in order to achieve this objective.
We have withdrawn the
initial public offering registration statements of Vital, TechStackery and Firemark in order to focus on the growth and expansion of
our company and on the completion of IHC’s IBC. We believe that these actions, together with our ongoing operations, evidence our
bona fide intent to be engaged primarily in a non-investment company business as soon as is reasonably possible in accordance with the
safe harbor provided by Rule 3a-2. Our board of directors has adopted a resolution committing our company to our historical operating
business to provide human capital outsourcing solutions, which does not include the business of investing, reinvesting, owning, holding,
or trading in securities, and owning or proposing to acquire investment securities. The IHC IPO registration statement and related prospectus
include an exception permitting Investments to transfer its ownership in the Founder Shares at any time to the extent that Investments
determines, in good faith, that such transfer is necessary to ensure that it and/or any of its parents, subsidiaries or affiliates are
in compliance with the 1940 Act. To comply with Rule 3a-2, we intend to sell the Founder Shares or dividend the Founder Shares to our
shareholders by October 19, 2022, the end of the one-year period afforded by the safe harbor for transient investment companies under
Rule 3a-2. To this end, we have also forfeited our Founder Shares of Vital, TechStackery and Firemark. As a result, we believe that we
will not be required to register as an investment company under the 1940 Act.
Notwithstanding the foregoing,
the acquisition of additional investment securities, including potentially as a result of making working capital loans to IHC, could
be viewed as business activities inconsistent with this requirement.
We expect IHC to operate
as a separately managed, publicly traded entity following the completion of its IBC. We anticipate entering into one or more service
agreements with IHC post business combination that will allow its clients to participate in our HRIS platform. We believe that focusing
upon the successful completion of IHC’s IBC within the staffing industry has the potential to generate significant revenues and
earnings for us.
If we are deemed to be
an investment company under the Investment Company Act of by virtue of our IHC sponsorship activities or based upon a determination that
we exceeded the 40% Threshold prior to October 19, 2021, our future activities may be restricted, including:
| · | restrictions
on the nature of our investments; and |
| · | restrictions
on the issuance of securities, each of which may make it difficult for us to conduct our
business and raise working capital. |
In addition, we may have imposed upon us burdensome
requirements, including:
| · | registration
as an investment company with the SEC; |
| · | adoption
of a specific form of corporate structure different from our current operating structure;
and |
| · | reporting,
record keeping, voting, proxy and disclosure requirements and other rules and regulations
that we are currently not subject to. |
If we were deemed to be subject to the 1940 Act, compliance with these additional regulatory
burdens would require additional expenses for which we have not allotted funds and may hinder our ability to operate our business.
Financial Market Risks
If we are unable to continue to meet the listing requirements
of Nasdaq, our common stock will be delisted.
Our common stock currently trades on Nasdaq,
where it is subject to various listing requirements including minimum per share prices. On April 4, 2022, we were notified by Nasdaq
that we are not in compliance with certain of these listing requirements, and that failure to correct these deficiencies could result
in delisting. We believe that we will be able to address Nasdaq’s concerns within the timeframe required for continued listing,
and that we will then return to being in full compliance with all of its listing requirements. Nevertheless, if we are not able to meet
Nasdaq’s listing standards in the future, we could be subject to suspension and delisting proceedings. A delisting of our common
stock and our inability to list on another national securities market could negatively impact us by: (i) reducing the liquidity
and market price of our common stock; (ii) reducing the number of investors willing to hold or acquire our common stock, which could
negatively impact our ability to raise equity financing; (iii) limiting our ability to use a registration statement to offer and
sell freely tradable securities, thereby preventing us from accessing the public capital markets; and (iv) impairing our ability
to provide equity incentives to our employees.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus and the
documents incorporated by reference into this prospectus include forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as amended, that relate to future events or our
future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results,
levels of activity, performance or achievements to differ materially from any future results, levels of activity, performance or achievements
expressed or implied by these forward-looking statements. Words such as, but not limited to, “anticipate,” “aim,”
“believe,” “contemplate,” “continue,” “could,” “design,” “estimate,”
“expect,” “intend,” “may,” “might,” “plan,” “predict,” “poise,”
“project,” “potential,” “suggest,” “should,” “strategy,” “target,”
“will,” “would,” and similar expressions or phrases, or the negative of those expressions or phrases, are intended
to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Although we believe
that we have a reasonable basis for each forward-looking statement contained in this prospectus and incorporated by reference into this
prospectus, we caution you that these statements are based on our projections of the future that are subject to known and unknown risks
and uncertainties and other factors that may cause our actual results, level of activity, performance or achievements expressed or implied
by these forward-looking statements, to differ. The section in this prospectus entitled “Risk Factors” and the sections in
our periodic reports, including our Annual Report entitled “Risk Factors” and “Description of Business,” and
our most recent quarterly report on Form 10-Q entitled “Management’s Discussion and Analysis of Financial Condition
and Results of Operations,” as well as other sections in this prospectus and the documents or reports incorporated by reference
into this prospectus, discuss some of the factors that could contribute to these differences. These forward-looking statements include,
among other things, statements about:
|
· |
our
future financial performance, including our revenue, costs of revenue and operating expenses; |
|
· |
our
ability to achieve and grow profitability; |
|
· |
our
ability to continue as a going concern, and the sufficiency of our cash, cash equivalents and investments to meet our liquidity needs; |
|
· |
our
ability to form ongoing, profitable relationships with IHC described above; |
|
· |
our
predictions about industry and market trends; |
|
· |
our
ability to successfully expand internationally; |
|
· |
our
ability to effectively manage our growth and future expenses; |
|
· |
our
estimated total addressable market; |
|
· |
our
ability to maintain, protect and enhance our intellectual property; |
|
· |
our
ability to comply with modified or new laws and regulations applying to our business; |
|
· |
the
attraction and retention of qualified employees and key personnel; |
|
· |
the
effect COVID-19 or other public health issues could have on our business and financial condition and the economy in general; |
|
|
|
|
· |
uncertainties regarding the effect of general economic and market conditions; |
|
· |
the impact of geopolitical events, including Russia’s recent invasion
of Ukraine; |
|
|
|
|
· |
our
ability to successfully defend litigation brought against us; and |
|
· |
our
use of the net proceeds from this offering, if any. |
We may not actually achieve
the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking
statements. Forward-looking statements should be regarded solely as our current plans, estimates and beliefs. We have included important
factors in the cautionary statements included in this document and incorporated by reference, particularly in the section entitled “Risk
Factors” beginning on page 19 of our Annual Report that we believe could cause actual results or events to differ materially
from the forward-looking statements that we make. Moreover, we operate in a very competitive and rapidly changing environment. New risks
emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on
our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained
in any forward-looking statements we may make. Given these risks and uncertainties, readers are cautioned not to place undue reliance
on such forward-looking statements. All forward-looking statements are qualified in their entirety by this cautionary statement. Our
forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or investments
we may make. You should read this prospectus and the documents that we have filed as exhibits to this prospectus and incorporated by
reference herein completely and with the understanding that our actual future results may be materially different from the plans, intentions
and expectations disclosed in the forward-looking statements we make. Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of activity or performance. The forward-looking statements contained
in this prospectus are made as of the date of this prospectus and we do not assume any obligation to update any forward-looking statements,
whether as a result of new information, future events or otherwise, except as required by applicable law.
You should also consider
carefully the statements set forth in the sections titled “Risk Factors” or elsewhere in this prospectus and in the documents
incorporated or deemed incorporated herein or therein by reference, which address various factors that could cause results or events
to differ from those described in the forward-looking statements. All subsequent written and oral forward-looking statements attributable
to us or to persons acting on our behalf are expressly qualified in their entirety by the applicable cautionary statements. We
have no plans to update these forward-looking statements.
USE OF PROCEEDS
We will not receive any
of the proceeds from the sale of Common Stock by the selling shareholders named in this prospectus, and the selling shareholders will
receive all of the proceeds from this offering.
We may receive up to approximately
$12.66 million in aggregate gross proceeds from cash exercises of the Warrants, based on the per share exercise price of the Warrants.
We
intend to use the proceeds we receive from the exercise of the Warrants to fund approximately $1.5 million working capital loans
to IHC to finance transaction costs in connection with IHC’s IBC and for general corporate purposes, including working capital,
operating expenses and capital expenditures.
The holders of the Warrants
are not obligated to exercise their Warrants, and we cannot predict whether holders of the Warrants will choose to exercise all or any
of their Warrants. Our expected use of the proceeds from the exercise of the Warrants represents our current intentions based upon our
present plans and business conditions. As a result, our management will have broad discretion in the application of the net proceeds,
and investors will be relying on our judgment regarding the application of the net proceeds of this offering. In addition, we might decide
to postpone or not pursue these certain of these activities if the net proceeds from this offering and the other sources of cash are
less than, or do not last as long as, expected. We have no current understandings, agreements or commitments for any material acquisitions
or licenses of any products, businesses or technologies. We do not currently have financing plans but we expect to obtain additional
financing in the form of public or private equity offerings over the next twelve months to extend loans to IHC in connection with its
IBC if required.
UNAUDITED PRO FORMA FINANCIAL
INFORMATION
On October 22, 2021, IHC
consummated the IHC IPO which raised $115 million of gross proceeds for IHC. In connection with the IHC IPO, we purchased, through Investments,
4,639,102 private placement warrants at a price of $1.00 per warrant, for an aggregate purchase price of $4,639,102. The unaudited pro
forma balance sheet as of August 31, 2021 gives effect to the consummation of the IHC IPO as if the IHC IPO was consummated on August
31, 2021, the first day of Fiscal 2021. The unaudited pro forma income statement for the year ended August 31, 2021 gives effect to the
consummation of the IHC IPO as if the IHC IPO was consummated on August 31, 2021, the first day of Fiscal 2021.
The unaudited pro forma
balance sheet and the unaudited pro forma income statement should be read in conjunction with our historical consolidated financial statements
and the related notes included in the Annual Report which are incorporated by reference herein. See “Information Incorporated By
Reference.” The unaudited pro forma balance sheet and the unaudited pro forma income statement may not be useful in predicting
the future financial condition and results of operations of our company. The actual financial condition and results of operations of
our company may differ significantly from the pro forma amounts reflected herein due to a variety of factors.
Unaudited Pro Forma Balance Sheet
| |
August 31,
2021 | | |
Gross
proceeds from units offered to public (1) | | |
Sale of
Warrants (2) | | |
Deferred
Offering Cost (3) | | |
Total | |
ASSETS | |
| | | |
| | | |
| | | |
| | | |
| | |
Current assets | |
| | | |
| | | |
| | | |
| | | |
| | |
Cash | |
$ | 1,199,000 | | |
| | | |
$ | 1,265,000 | | |
| | | |
$ | 2,464,000 | |
Accounts receivable, net | |
| 498,000 | | |
| | | |
| | | |
| | | |
| 498,000 | |
Unbilled accounts receivable | |
| 2,741,000 | | |
| | | |
| | | |
| | | |
| 2,741,000 | |
Deposit – workers’ compensation | |
| 155,000 | | |
| | | |
| | | |
| | | |
| 155,000 | |
Prepaid expenses | |
| 605,000 | | |
| | | |
| | | |
| | | |
| 605,000 | |
Other current assets | |
| 126,000 | | |
| | | |
| | | |
| | | |
| 126,000 | |
Current assets of
discontinued operations | |
| 356,000 | | |
| | | |
| | | |
| | | |
| 356,000 | |
Total current assets | |
| 5,680,000 | | |
| — | | |
| 1,265,000 | | |
| — | | |
| 6,945,000 | |
| |
| | | |
| | | |
| | | |
| | | |
| | |
Fixed assets, net | |
| 2,784,000 | | |
| | | |
| | | |
| | | |
| 2,784,000 | |
Note receivable, net | |
| 4,004,000 | | |
| | | |
| | | |
| | | |
| 4,004,000 | |
Deposits – workers’ compensation | |
| 386,000 | | |
| | | |
| | | |
| | | |
| 386,000 | |
Deposits and other assets | |
| 944,000 | | |
| | | |
| | | |
| | | |
| 944,000 | |
Deferred offering costs – SPACs (See Note
6) | |
| 48,261,000 | | |
| | | |
| | | |
| (9,485,000 | ) | |
| 38,776,000 | |
Investment held in Trust account | |
| — | | |
| 115,000,000 | | |
| 1,725,000 | | |
| | | |
| 116,725,000 | |
Non-current assets
of discontinued operations | |
| 883,000 | | |
| | | |
| | | |
| | | |
| 883,000 | |
Total assets | |
$ | 62,942,000 | | |
$ | 115,000,000 | | |
$ | 2,990,000 | | |
$ | (9,485,000 | ) | |
$ | 171,447,000 | |
| |
| | | |
| | | |
| | | |
| | | |
| | |
LIABILITIES AND STOCKHOLDERS’ DEFICIT | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
| | | |
| | | |
| | | |
| | | |
| | |
Current liabilities | |
| | | |
| | | |
| | | |
| | | |
| | |
Accounts payable and other accrued liabilities | |
$ | 6,553,000 | | |
| | | |
| | | |
| | | |
$ | 6,553,000 | |
Payroll related liabilities | |
| 7,876,000 | | |
| | | |
| | | |
| | | |
| 7,876,000 | |
Accrued workers’ compensation costs | |
| 663,000 | | |
| | | |
| | | |
| | | |
| 663,000 | |
Current liabilities
of discontinued operations | |
| 1,516,000 | | |
| | | |
| | | |
| | | |
| 1,516,000 | |
Total current liabilities | |
| 16,608,000 | | |
| — | | |
| — | | |
| | | |
| 16,608,000 | |
Non-current liabilities | |
| | | |
| | | |
| | | |
| | | |
| | |
Accrued workers’ compensation costs | |
| 1,646,000 | | |
| | | |
| | | |
| | | |
| 1,646,000 | |
Non-current liabilities
of discontinued operations | |
| 3,765,000 | | |
| | | |
| | | |
| | | |
| 3,765,000 | |
Total liabilities | |
| 22,019,000 | | |
| — | | |
| — | | |
| | | |
| 22,019,000 | |
Commitments and contingencies | |
| | | |
| | | |
| | | |
| | | |
| | |
Class A common
stock subject to possible redemption | |
| — | | |
| 115,000,000 | | |
| 1,725,000 | | |
| | | |
| 116,725,000 | |
Stockholders’ deficit | |
| | | |
| | | |
| | | |
| | | |
| | |
Preferred stock, 50,000,000 authorized
shares; $0.0001 par value | |
| — | | |
| | | |
| | | |
| | | |
| — | |
Common stock, 750,000,000 authorized
shares; $0.0001 par value; 25,863,099 and 16,902,146 shares issued as of August 31, 2021 and August 31, 2020 | |
| 3,000 | | |
| | | |
| | | |
| | | |
| 3,000 | |
Additional paid-in capital | |
| 142,786,000 | | |
| | | |
| 1,265,000 | | |
| (9,485,000 | ) | |
| 134,566,000 | |
Accumulated deficit | |
| (149,338,000 | ) | |
| | | |
| | | |
| | | |
| (149,338,000 | ) |
Total ShiftPixy
Inc Stockholders' Deficit | |
| (6,549,000 | ) | |
| — | | |
| 1,265,000 | | |
| (9,485,000 | ) | |
| (14,769,000 | ) |
Non controlling interest in consolidated
subsidiaries (See Note 6) | |
| 47,472,000 | | |
| | | |
| | | |
| | | |
| 47,472,000 | |
Total liabilities and stockholders’
deficit | |
$ | 62,942,000 | | |
$ | 115,000,000 | | |
$ | 2,990,000 | | |
$ | (9,485,000 | ) | |
$ | 171,447,000 | |
|
(1) |
Represents
the sale of 11,500,000 IHC Units for $10.00 per unit, each IHC Unit consisting of one share of redeemable IHC common stock and one
warrant, with each whole warrant exercisable to purchase one share of IHC common stock at an exercise price of $11.50 per share,
subject to adjustment. |
|
(2) |
Represents
the purchase by us, through Investments as the sponsor of IHC, of 4,639,102 private placement warrants for $1.00 per warrant, with
each whole warrant exercisable to purchase one share of IHC common stock at an exercise price of $11.50 per share, subject to adjustment,
for total proceeds of $4,639,000 to IHC. $1,725,000 of such proceeds were allocated to IHC’s trust account for prepaid interest
payable upon redemption of IHC common stock and $1,649,000 of such proceeds were allocated for underwriter and professional fees
and costs associated with the IHC IPO. The additional paid-in capital associated with the $4,639,000 private placement proceeds was
allocated as follows: (i) $3,573,000 to IHC common stock subject to possible redemption to maintain minimum equity in IHC and
(ii) $1,066,000 to additional paid-in capital. |
|
(3) |
On
April 22, 2021, IHC transferred a total of 2,000,000 Founder Shares to a third party (“the representative”). The transfer
of the Founder Shares created a deferred offering cost because it was deemed to be compensation to the representative. A value of
$4.75 per share was estimated to be the fair value based in comparison to similar transactions. Accordingly, a value of $9,485,000
was considered an element of offering cost of the IHC IPO. The deferred offering cost was charged to additional paid-in capital upon
the completion of the IHC IPO on October 22, 2021. |
Unaudited Pro Forma Income Statement
| |
August 31, 2021 | | |
General and
Administrative Costs (1) | | |
Total | |
Revenues (gross billings of $79.0 million and
$65.5 million less worksite employee payroll cost of $55.6 million and $56.9 million, respectively) | |
$ | 23,420,000 | | |
$ | — | | |
$ | 23,420,000 | |
Cost of revenue | |
| 23,098,000 | | |
| — | | |
| 23,098,000 | |
Gross Profit | |
| 322,000 | | |
| — | | |
| 322,000 | |
Operating expenses: | |
| | | |
| | | |
| | |
Other Operating Expenses | |
| 21,071,000 | | |
| — | | |
| 21,071,000 | |
General and Administrative | |
| 6,596,000 | | |
| 111,000 | | |
| 6,707,000 | |
Total operating expenses | |
| 27,667,000 | | |
| 111,000 | | |
| 27,778,000 | |
Operating Loss | |
| (27,345,000 | ) | |
| (111,000 | ) | |
| (27,456,000 | ) |
Other (expense) income: | |
| 20,000 | | |
| — | | |
| 20,000 | |
Income tax expense | |
| (42,000 | ) | |
| — | | |
| (42,000 | ) |
Loss from continuing operations | |
| (27,367,000 | ) | |
| (111,000 | ) | |
| (27,478,000 | ) |
Total Income (Loss) from discontinued
operations, net of tax | |
| (2,509,000 | ) | |
| — | | |
| (2,509,000 | ) |
Net loss | |
$ | (29,876,000 | ) | |
$ | (111,000 | ) | |
$ | (29,897,000 | ) |
|
(1) |
Represents
General and Administrative Costs for IHC for the period ended August 31, 2021, which includes insurance, administration fees, franchise
tax fees, licensing and other expenses. |
SELLING SHAREHOLDERS
This prospectus relates
to the sale or other disposition of up to 15,423,200 shares of our Common Stock and shares of Common Stock issuable to the selling shareholders
upon exercise of the Warrants by the selling shareholders named below, and their donees, pledgees, transferees or other successors-in-interest
selling shares of Common Stock or interests in shares of Common Stock received after the date of this prospectus from a selling shareholder
as a gift, pledge, partnership distribution or other transfer. The shares of Common Stock covered hereby were issued by us in the
Offering. See “The Offering” beginning on page 9 of this prospectus.
The table below sets
forth information as of April 1, 2022, to our knowledge, for the selling shareholders and other information regarding the beneficial
ownership (as determined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) of the shares
of Common Stock held by the selling shareholders. The second column lists the number of shares of Common Stock and percentage beneficially
owned by the selling shareholders as of April 1, 2022. The third column lists the maximum number of shares of Common Stock that
may be sold or otherwise disposed of by the selling shareholders pursuant to the registration statement of which this prospectus forms
a part. The selling shareholders may sell or otherwise dispose of some, all or none of their shares. Pursuant to Rules 13d-3
and 13d-5 of the Exchange Act, beneficial ownership includes any shares of our Common Stock as to which a shareholder has sole or shared
voting power or investment power, and also any shares of our Common Stock which the shareholder has the right to acquire within 60 days
of April 1, 2022. The percentage of beneficial ownership for the selling shareholders is based on 28,713,099 shares of our Common
Stock outstanding as of April 1, 2022 and the number of shares of our Common Stock issuable upon exercise or conversion of convertible
securities that are currently exercisable or convertible or are exercisable or convertible within 60 days of April 1, 2022 beneficially
owned by the applicable selling shareholder. Except as described below, to our knowledge, none of the selling shareholders has
been an officer or director of ours or of our affiliates within the past three years or has any material relationship with us or our
affiliates within the past three years. Our knowledge is based on information provided by the selling shareholders in connection
with the filing of this prospectus.
The shares of Common Stock
being covered hereby may be sold or otherwise disposed of from time to time during the period the registration statement of which this
prospectus is a part remains effective, by or for the account of the selling shareholders. After the date of effectiveness of such
registration statement, the selling shareholders may sell or transfer, in transactions covered by this prospectus or in transactions
exempt from the registration requirements of the Securities Act, some or all of their Common Stock.
Information about the selling
shareholders may change over time. Any changed information will be set forth in an amendment to the registration statement or supplement
to this prospectus, to the extent required by law.
| |
Shares
of Common Stock Beneficially Owned Prior to this Offering | | |
Number of Shares of Common Stock Being
Offered Hereby | | |
Shares of Common Stock Beneficially Owned After
this Offering | |
Selling Shareholder | |
| Number
(1) | | |
| %
(2) | | |
| | | |
| Number (3) | | |
| %
(3) | |
Armistice Capital Master Fund Ltd.(4) | |
| 15,047,022 | | |
| 43.6 | | |
| 15,047,022 | | |
| — | | |
| — | % |
A.G.P./Alliance Global Partners(5) | |
| 327,147 | | |
| 1.1 | | |
| 131,661 | | |
| 195,486 | | |
| * | |
David Bocchi(6)(7) | |
| 136,872 | | |
| * | | |
| 56,426 | | |
| 80,446 | | |
| * | |
Alex Barrientos(6)(8) | |
| 143,538 | | |
| * | | |
| 56,426 | | |
| 87,112 | | |
| * | |
David Birenbaum(6)(9) | |
| 30,656 | | |
| * | | |
| 12,226 | | |
| 18,430 | | |
| * | |
Zachary Hirsch(6)(10) | |
| 10,636 | | |
| * | | |
| 2,821 | | |
| 7,815 | | |
| * | |
Emanuel Cohen(6)(11) | |
| 5,229 | | |
| * | | |
| 1,881 | | |
| 3,348 | | |
| * | |
Carmelo Cataudella(6)(12) | |
| 5,229 | | |
| * | | |
| 1,881 | | |
| 3,348 | | |
| * | |
Harry Ioannou(6)(13) | |
| 92,399 | | |
| * | | |
| 36,113 | | |
| 56,286 | | |
| * | |
George Anagnostou(6)(14) | |
| 87,066 | | |
| * | | |
| 36,113 | | |
| 50,953 | | |
| * | |
Zachary Grodko(6)(15) | |
| 18,694 | | |
| * | | |
| 7,524 | | |
| 11,170 | | |
| * | |
James Tang(6)(16) | |
| 18,694 | | |
| * | | |
| 7,524 | | |
| 11,170 | | |
| * | |
Keith Donofrio(6)(17) | |
| 40,196 | | |
| * | | |
| 16,177 | | |
| 24,019 | | |
| * | |
Thomas Higgins(6)(18) | |
| 12,354 | | |
| * | | |
| 5,643 | | |
| 6,711 | | |
| * | |
Kevin Oleskewicz(6)(19) | |
| 5,999 | | |
| * | | |
| 3,762 | | |
| 2,237 | | |
| * | |
|
*Less
than one percent |
|
|
(1) |
The shares of Common
Stock underlying the Warrants are convertible or exercisable within 60 days of April 1, 2022. |
|
|
(2) |
Based on a denominator
equal to the sum of (i) 28,713,099 shares of our Common Stock outstanding on April 1, 2022, and (ii) the number of shares
of our Common Stock issuable upon exercise or conversion of convertible securities that are currently exercisable or convertible
or are exercisable or convertible within 60 days of April 1, 2022 beneficially owned by the applicable selling shareholder. |
|
|
(3) |
Assumes
that (i) all of the shares of common stock to be registered by the registration statement of which this prospectus is a part
are sold in this offering and (ii) the selling shareholders do not acquire additional shares of our common stock after the date
of this prospectus and prior to completion of this offering. The percentage of beneficial ownership after the offering
is based on 44,136,299 shares of Common Stock, consisting of (a) 28,713,099 shares of our Common Stock outstanding on April
1, 2022, and (b) the 15,423,200 shares of our Common Stock underlying the Warrants offered under this prospectus. The
number of shares listed do not take into account any limitations on exercise of the Warrants. |
|
|
(4) |
The shares reflected
as beneficially owned by Armistice Capital Master Fund in the table above consist of (i) 2,850,000 shares of common stock,
(ii) 4,673,511 shares of common stock that may be purchased pursuant to the exercise of Pre-funded Warrants within 60 days of
April 1, 2022 and (iii) 7,523,511 shares of common stock that may be purchased pursuant to the exercise of Common Warrants within
60 days of April 1, 2022. Excludes 9,896,906 shares of common stock that may be purchased pursuant to the exercise of
the New Warrant issued in connection with the Warrant Exercise. |
|
|
(5) |
The shares reflected
as beneficially owned by A.G.P./Alliance Global Partners (“A.G.P.”) in the table above consist of (i) 131,661 shares
of common stock that may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April 1, 2022, (ii)
86,598 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within 60 days of April
1, 2022 and (iii) 108,888 shares of common stock that may be purchased pursuant to the exercise of warrants issued to A.G.P.
in connection with its role as underwriter in previous public offerings for the Company (the “Underwriter Warrants”)
within 60 days of April 1, 2022. |
|
|
(6) |
The
selling stockholder is an employee of A.G.P./Alliance Global Partners, which is a registered broker-dealer that acted as our placement
agent in the Offering. |
|
|
(7) |
The
shares reflected as beneficially owned by David Bocchi in the table above consist of (i) 56,246 shares of common stock that may be
purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 37,113 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 43,333 shares of common stock that may be purchased pursuant to the exercise of Underwriter
Warrants within 60 days of April 1, 2022. |
(8) |
The
shares reflected as beneficially owned by Alex Barrientos in the table above consist of (i) 56,426 shares of common stock that
may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 37,113 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 49,999 shares of common stock that may be purchased pursuant to the exercise of Underwriter
Warrants within 60 days of April 1, 2022. |
|
|
(9) |
The
shares reflected as beneficially owned by David Birenbaum in the table above consist of (i) 12,226 shares of common stock that
may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 8,041 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 10,389 shares of common stock that may be purchased pursuant to the exercise of Underwriter
Warrants within 60 days of April 1, 2022. |
|
|
(10) |
The
shares reflected as beneficially owned by Zachary Hirsch in the table above consist of (i) 2,821 shares of common stock that
may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 3,093 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 4,722 shares of common stock that may be purchased pursuant to the exercise of Underwriter
Warrants within 60 days of April 1, 2022. |
|
|
(11) |
The
shares reflected as beneficially owned by Emanuel Cohen in the table above consist of (i) 1,881 shares of common stock that
may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 1,237 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 2,111 shares of common stock that may be purchased pursuant to the exercise of Underwriter
Warrants within 60 days of April 1, 2022. |
|
|
(12) |
The
shares reflected as beneficially owned by Carmelo Cataudella in the table above consist of (i) 1,881 shares of common stock
that may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 1,237 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 2,111 shares of common stock that may be purchased pursuant to the exercise of Underwriter
Warrants within 60 days of April 1, 2022. |
|
|
(13) |
The
shares reflected as beneficially owned by Harry Ioannou in the table above consist of (i) 36,113 shares of common stock that
may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 23,753 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 32,533 shares of common stock that may be purchased pursuant to the exercise of Underwriter
Warrants within 60 days of April 1, 2022. |
|
|
(14) |
The
shares reflected as beneficially owned by George Anagnostou in the table above consist of (i) 36,113 shares of common stock
that may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 23,753 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 27,200 shares of common stock that may be purchased pursuant to the exercise of Underwriter
Warrants within 60 days of April 1, 2022. |
|
|
(15) |
The
shares reflected as beneficially owned by Zachary Grodko in the table above consist of (i) 7,524 shares of common stock that
may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 4,948 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 6,222 shares of common stock that may be purchased pursuant to the exercise of Underwriter Warrants
within 60 days of April 1, 2022. |
|
|
(16) |
The
shares reflected as beneficially owned by James Tang in the table above consist of (i) 7,524 shares of common stock that may
be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 4,948 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 6,222 shares of common stock that may be purchased pursuant to the exercise of Underwriter Warrants
within 60 days of April 1, 2022. |
|
|
(17) |
The
shares reflected as beneficially owned by Keith Donofrio in the table above consist of (i) 16,177 shares of common stock that
may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 10,640 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 13,379 shares of common stock that may be purchased pursuant to the exercise of Underwriter
Warrants within 60 days of April 1, 2022. |
(18) |
The
shares reflected as beneficially owned by Thomas Higgins in the table above consist of (i) 5,643 shares of common stock that
may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 3,711 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 3,000 shares of common stock that may be purchased pursuant to the exercise of Underwriter
Warrants within 60 days of April 1, 2022. |
|
|
(19) |
The
shares reflected as beneficially owned by Kevin Oleskewicz in the table above consist of (i) 3,762 shares of common stock that
may be purchased pursuant to the exercise of Placement Agent Warrants within 60 days of April
1, 2022, (ii) 1,237 shares of common stock that may be purchased pursuant to the exercise of May Placement Agent Warrants within
60 days of April 1, 2022 and (iii) 1,000 shares of common stock that may be purchased pursuant to the exercise of Underwriter
Warrants within 60 days of April 1, 2022. |
PLAN OF DISTRIBUTION
Each selling shareholder
of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities
covered hereby on The Nasdaq Capital Market or any other stock exchange, market or trading facility on which the securities are traded
or in private transactions. These sales may be at fixed or negotiated prices. A selling shareholder may use any one or more of the following
methods when selling securities:
|
· |
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
|
· |
block
trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block
as principal to facilitate the transaction; |
|
· |
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; |
|
· |
an
exchange distribution in accordance with the rules of the applicable exchange; |
|
· |
privately
negotiated transactions; |
|
· |
settlement
of short sales; |
|
· |
in
transactions through broker-dealers that agree with the selling shareholders to sell a specified number of such securities at a stipulated
price per security; |
|
· |
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
|
· |
a
combination of any such methods of sale; or |
|
· |
any
other method permitted pursuant to applicable law. |
The selling shareholders
may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if available, rather
than under this prospectus.
Broker-dealers engaged by
the selling shareholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts
from the selling shareholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts
to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of
a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown
in compliance with FINRA Rule 2121.
In connection with the sale
of the securities or interests therein, the selling shareholders may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The selling
shareholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities
to broker-dealers that in turn may sell these securities. The selling shareholders may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer
or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling shareholders
and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the
meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents
and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the
Securities Act. Each selling shareholder has informed the Company that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
The Company is required
to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify
the selling shareholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to use commercially
reasonable best efforts to keep this registration statement effective at all times until the Investor no longer owns any shares of Common
Stock, Warrants or shares of Common Stock issuable upon the exercise of the Warrants.
Under applicable rules and
regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in
market making activities with respect to the Common Stock for the applicable restricted period, as defined in Regulation M, prior to
the commencement of the distribution. In addition, the selling shareholders will be subject to applicable provisions of the Exchange
Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the Common
Stock by the selling shareholders or any other person. We will make copies of this prospectus available to the selling shareholders and
have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
LEGAL MATTERS
The validity of the shares
of Common Stock offered in this prospectus has been passed upon for us by Bailey, Stock, Harmon, Cottam, Lopez LLP, Cheyenne, Wyoming.
Certain other matters in connection with this prospectus has been passed upon for us by Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., New York, New York, and
EXPERTS
Our consolidated financial
statements incorporated in this Prospectus by reference from our 2021 Annual Report on Form 10-K have been audited by Marcum LLP,
an independent registered public accounting firm, as set forth in their report, which is incorporated herein by reference. Such consolidated
financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting
and auditing.
WHERE YOU CAN FIND ADDITIONAL
INFORMATION
We are subject to the information
requirements of the Exchange Act and we therefore file periodic reports, proxy statements and other information with the SEC relating
to our business, financial statements and other matters. The reports, proxy statements and other information we file may be inspected
and copied at prescribed rates at the SEC's Public Reference Room located at 100 F Street, N.E., Washington, D.C. 20549.
You may obtain information on the operation of the SEC's Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also
maintains a website that contains reports, proxy and information statements and other information regarding issuers like us that file
electronically with the SEC. The address of the SEC's website is http://www.sec.gov.
This prospectus constitutes
part of a registration statement filed under the Securities Act with respect to the shares of Common Stock covered hereby. As permitted
by the SEC's rules, this prospectus omits some of the information, exhibits and undertakings included in the registration statement.
You may read and copy the information omitted from this prospectus but contained in the registration statement, as well as the periodic
reports and other information we file with the SEC, at the public reference room and website of the SEC referred to above. You
may also access our filings with the SEC on our website, which is located at http://www.shiftpixy.com/. The information contained
on our website is not part of this prospectus.
Statements contained in
this prospectus as to the contents of any contract or other document are not necessarily complete, and in each instance we refer you
to the copy of the contract or other document filed or incorporated by reference as an exhibit to the registration statement or as an
exhibit to our Exchange Act filings, each such statement being qualified in all respects by such reference.
INFORMATION INCORPORATED
BY REFERENCE
The SEC allows us to incorporate
by reference the information we file with it, which means that we can disclose important information to you by referring you to another
document that we have filed separately with the SEC. You should read the information incorporated by reference because it is an important
part of this prospectus. Information in this prospectus supersedes information incorporated by reference that we filed with the SEC prior
to the date of this prospectus, while information that we file later with the SEC will automatically update and supersede the information
in this prospectus. We incorporate by reference into this prospectus and the registration statement of which this prospectus is a part
the information or documents listed below that we have filed with the SEC (Commission File No. 001-33958):
|
· |
our Quarterly
Report on Form 10-Q for the quarter ended November 30, 2021, filed with the SEC on January
14, 2022, as amended by our Quarterly Report on Form 10-Q/A filed with the SEC on January
18, 2022; |
|
· |
our
Current Reports on Form 8-K, filed with the SEC on September
2, 2021, October
27, 2021, December
2, 2021, January
27, 2022, March
18, 2022, April 1, 2022 and April 7, 2022; and |
We also incorporate by reference
any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form
that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the registration statement
of which this prospectus is a part and prior to effectiveness of such registration statement, until we file a post-effective amendment
that indicates the termination of the offering of the Common Stock made by this prospectus and will become a part of this prospectus
from the date that such documents are filed with the SEC. Information in such future filings updates and supplements the information
provided in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information
in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent
that statements in the later filed document modify or replace such earlier statements.
We will furnish without
charge to each person, including any beneficial owner, to whom a prospectus is delivered, upon written or oral request, a copy of any
or all of the documents incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits that
are specifically incorporated by reference into such documents. You should direct any requests for documents to ShiftPixy Inc., Attention:
Corporate Secretary, 501 Brickell Key Drive, Suite 300, Miami, FL 33131. Our phone number is (888) 798-9100.
You should rely only on
information contained in, or incorporated by reference into, this prospectus and any prospectus supplement. We have not authorized anyone
to provide you with information different from that contained in this prospectus or incorporated by reference into this prospectus. We
are not making offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which
the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance
and Distribution.
The following table sets forth all costs and
expenses payable by the Registrant, in connection with the sale of the securities being registered under this registration statement.
All amounts shown are estimates except for the Securities and Exchange Commission, or SEC, registration fee.
| |
Amount | |
SEC registration fee | |
$ | 1,001 | |
Legal fees and expenses | |
$ | 25,000 | |
Accounting fees and expenses | |
$ | 10,000 | |
Total | |
$ | 36,001 | |
Item 15. Indemnification of Directors
and Officers.
Sections 17-16-851 through
-856 of the Wyoming Statutes (the “Applicable Statutes”) provide that directors and officers of Wyoming corporations may,
under certain circumstances, be indemnified against expenses (including attorneys’ fees) and other liabilities actually and reasonably
incurred by them as a result of any suit brought against them in their capacity as a director or officer, if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal
action or proceeding, if they had no reasonable cause to believe their conduct was unlawful. The Applicable Statutes also provide that
directors and officers may also be indemnified against expenses (including attorneys’ fees) incurred by them in connection with
a derivative suit if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests
of the corporation, except that no indemnification may be made without court approval if such person was adjudged liable to the corporation.
Further, Article V
of our articles of incorporation, as amended, also provides as follows regarding our indemnification of our directors, officers, employees
and agents:
“[t]o the fullest extent permitted
by the Wyoming Business Corporation Act or any other applicable law as now in effect or as it may hereafter be amended, no person who
is or was a director of the Corporation shall be personally liable to the Corporation or its shareholders for monetary damages for breach
of fiduciary duty as a director, except for liability for (A) the amount of financial benefit received by a director to which he
or she is not entitled; (B) an intentional infliction of harm on the Corporation or the Shareholders; (C) a violation of Section 17-16-833
of the Wyoming Business Corporation Act; or (D) an intentional violation of criminal law. If the Wyoming Business Corporation Act
is amended after the effective date of this Amendment to authorize corporate action further eliminating or limiting the personal liability
of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the
Wyoming Business Corporation Act, as so amended.
The Corporation shall indemnify to
the fullest extent permitted by the Wyoming Business Corporation Act, as the same may be amended and supplemented from time to time,
any and all persons whom it shall have power to indemnify under the Wyoming Business Corporation Act. The indemnification provided for
herein shall not be exclusive of any other rights to which those seeking indemnification may be entitled as a matter of law under any
Bylaw, agreement, vote of shareholders or disinterested directors of the Corporation, or otherwise, both as to action in such indemnified
person’s official capacity and as to action in another capacity while serving as a director, officer, employee, or agent of the
Corporation, and shall continue as to a person who has ceased to be a director, officer, employee, or agent of the Corporation, and shall
inure to the benefit of the heirs, executors and administrators of such person.
Any repeal or modification of this
Article V or amendment to the Wyoming Business Corporation Act shall not adversely affect any right or protection of a director,
officer, agent, or other person existing at the time of or increase the liability of any director, officer, agent, or other person of
the Corporation with respect to any acts or omissions of such director, officer, or agent occurring prior to, such repeal, modification,
or amendment.
The Corporation shall have the power
to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation or
is or was serving at the request of the Corporation as a director, officer, employee or agent to another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity
or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against liability under the
provisions of this Article V.”
Further, Article XIV
of our Bylaws also provides as follows regarding our indemnification of our directors, officers, employees and agents:
“The corporation shall indemnify
any person acting on its behalf in accord with the law of Wyoming. The indemnification provided hereby shall not be deemed exclusive
of any other right to which anyone seeking indemnification thereunder may be entitled under any bylaw, agreement, or otherwise, both
as to action in his official capacity and as to action in another capacity while holding such office. The corporation may purchase and
maintain insurance on the behalf of any Director, officer, agent, employee or former Director or officer or other person, against any
liability asserted against them and incurred by him.”
Item 16. Exhibits.
EXHIBIT LIST
Exhibit
Number |
|
Description |
|
|
|
4.1 |
|
Form of
Warrant (incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K, filed on September 2, 2021). |
|
|
|
4.2 |
|
Form of
Pre-funded Warrant (incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K, filed on September 2,
2021). |
|
|
|
5.1* |
|
Opinion
of Bailey, Stock, Harmon, Cottam, Lopez LLP. |
|
|
|
10.1 |
|
Securities
Purchase Agreement, dated August 31, 2021, by and among the Company and the Investor (incorporated by reference to Exhibit 10.1
to our Current Report on Form 8-K, filed on September 2, 2021). |
|
|
|
23.1* |
|
Consent
of Marcum, LLP, Independent Registered Public Accounting Firm. |
|
|
|
23.2* |
|
Consent
of Bailey, Stock, Harmon, Cottam, Lopez LLP (contained in Exhibit 5.1 hereto). |
|
|
|
24.1** |
|
Powers
of Attorney (included in the signature page of this registration statement). |
|
|
|
107* |
|
Filing
Fee Table |
|
|
|
* Filed herewith.
** Previously filed. |
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; |
|
(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 20 percent change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
|
(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; |
provided, however, that paragraphs (a)(1)(i),
(ii), and (iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement.
|
(2) |
That,
for the purpose of determining any liability under the Securities Act, 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 of the registrant under the Securities Act 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. |
The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement 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.
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 foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
|
(1) |
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) |
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 the offering of these securities
at that time shall be deemed to be the initial bona fide offering. |
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the city of Miami, Florida, on this April 7, 2022.
|
ShiftPixy, Inc. |
|
|
|
By: |
/s/
Scott W. Absher |
|
Name: |
Scott W. Absher |
|
Title: |
Chief Executive Officer |
Pursuant to the requirements
of the Securities Act of 1933, this Registration Statement on Form S-3 has been signed below by the following persons in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
/s/
Scott W. Absher |
|
Chief Executive
Officer and Director
(Principal Executive Officer) |
|
April
7, 2022 |
Scott W. Absher |
|
|
|
|
|
* |
|
Chief Financial
Officer
(Principal Financial Officer and Principal Accounting Officer) |
|
April
7, 2022 |
Domonic Carney |
|
|
|
|
|
* |
|
Director |
|
April 7,
2022 |
Kenneth Weaver |
|
|
|
|
|
* |
|
Director |
|
April 7,
2022 |
Whitney White |
|
|
|
|
|
* |
|
Director |
|
April 7,
2022 |
Christopher Sebes |
|
|
|
|
|
* |
|
Director |
|
April 7,
2022 |
Amanda Murphy |
* |
/s/
Scott W. Absher |
|
Name: |
Scott W. Absher |
|
Title: |
Attorney-in-fact |
|
ShiftPixy (NASDAQ:PIXY)
Historical Stock Chart
From Mar 2024 to Apr 2024
ShiftPixy (NASDAQ:PIXY)
Historical Stock Chart
From Apr 2023 to Apr 2024