As filed with the Securities and Exchange
Commission on December 16, 2022
Registration No. 333-267751
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3/A
(Amendment No. 1)
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
SHIFTPIXY, INC.
(Exact name of registrant as specified in its charter)
| Wyoming |
47-4211438 |
| (State of incorporation) |
(IRS Employer Identification No.) |
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:
Gregory Sichenzia, Esq.
Jeff Cahlon, Esq.
Sichenzia Ross Ference LLP
1185 Avenue of the Americas, 31st Floor
New York, New York 10036
(212) 930-9700
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
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. (Check one):
| Large
accelerated filer ¨ |
|
Accelerated
filer ¨ |
| Non-accelerated
filer 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 Exchange 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 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
| |
|
|
| The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. |
| PRELIMINARY PROSPECTUS |
SUBJECT TO COMPLETION |
DATED
DECEMBER 16, 2022 |
ShiftPixy, Inc.
1,270,834 Shares of Common Stock
Pursuant to this prospectus,
the selling stockholders identified herein are offering on a resale basis an aggregate of 1,270,834 shares of common stock of ShiftPixy, Inc.,
including (i) 416,667 shares issued pursuant to the securities purchase agreement, dated September 20, 2022 (the “Purchase
Agreement”), between us and the purchaser named therein, (ii) 833,334 shares issuable upon exercise of warrants (the “Investor
Warrants”) issued to the purchaser under the Purchase Agreement, and (iii) 20,833 shares issuable upon exercise of warrants
(the “Placement Agent Warrants,” and together with the Investor Warrants, the “Warrants”) issued to the placement
agent and its designees as compensation in connection with the private placement under the Purchase Agreement (the “Private Placement”).
The Investor Warrants were issued upon closing of the Purchase Agreement on September 23, 2022, are exercisable for a period of
seven years commencing March 23, 2023 (six months from issuance) and have an exercise price of $12.00 share. The Placement Agent
Warrants are exercisable commencing March 23, 2023 and will expire four years from the date of effectiveness of this registration
statement.
We will not receive any of
the proceeds from the sale by the selling stockholders of the common stock. Upon any exercise of the Warrants by payment of cash, however,
we will receive the exercise price of the Warrants.
The
selling stockholders may sell or otherwise dispose of the common stock covered by this prospectus in a number of different ways and at
varying prices. We provide more information about how the selling stockholders may sell or otherwise dispose of the common stock covered
by this prospectus in the section entitled “Plan of Distribution” on page 10. Discounts, concessions, commissions
and similar selling expenses attributable to the sale of common stock covered by this prospectus will be borne by the selling stockholders.
We will pay all expenses (other than discounts, concessions, commissions and similar selling expenses) relating to the registration of
the common stock with the Securities and Exchange Commission, or the SEC.
You should carefully read
this prospectus together with the documents we incorporate by reference, before you invest in our common stock.
Our common stock is listed
on The Nasdaq Capital Market under the symbol “PIXY.” On December 15, 2022, the last reported sale price for our common
stock was $18.17 per share.
Investing
in our common stock involves substantial risk. Please read “Risk Factors” beginning
on page 5 of this prospectus and in the documents we incorporate by reference.
Neither the SEC nor any
state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus.
Any representation to the contrary is a criminal offense.
The date of this prospectus is _____________, 2022.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of
a registration statement that we have filed with the SEC pursuant to which the selling stockholders 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 More 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.
SUMMARY
This summary highlights
certain information appearing elsewhere in this prospectus and in the documents we incorporate by reference into this prospectus. The
summary is not complete and does not contain all of the information that you should consider before investing in our common stock. After
you read this summary, you should read and consider carefully the entire prospectus and the more detailed information and financial statements
and related notes that are incorporated by reference into this prospectus and any prospectus supplement. If you invest in our shares,
you are assuming a high degree of risk.
About Us—Business Overview
We are a human capital
management ("HCM") platform. We provide payroll and related employment tax processing, human resources and employment compliance,
employment related insurance, and employment administrative 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. 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.
About this Offering
On
September 20, 2022, we entered into a securities purchase agreement with a large institutional investor (the “Purchaser”)
pursuant to which we sold to the Purchaser an aggregate of 416,667 shares of its common stock
together with warrants (the “Investor Warrants”) to purchase up to 833,334
shares of common stock in a private placement offering (the “Private Placement”). Each
share of common stock and two accompanying Investor Warrants were sold together at a combined offering price of $12.00. The Investor
Warrants are exercisable for a period of seven years commencing March 23, 2023 (six months from issuance) at an exercise price of
$12.00 per share, subject to adjustment. The Private Placement closed on September 23, 2022. The gross proceeds to us
from the private placement were approximately $5 million.
In
connection with the Purchase Agreement, we and the Purchaser entered into amendment No. 1 to warrants (the “Warrant Amendment”).
Pursuant to the Warrant Amendment, the exercise price of (i) 25,233 warrants issued on September 3, 2021, and (ii) 98,969
warrants issued on January 28, 2022, was reduced to $0.01.
A.G.P./Alliance
Global Partners (the “Placement Agent”) acted as the exclusive placement agent in connection with the private placement pursuant
to the terms of a placement agent agreement, dated September 20, 2022, between us and the Placement Agent. Pursuant to the placement
agent agreement, we paid the Placement Agent a fee equal to 7.0% of the aggregate gross proceeds from the private placement. In addition
to the cash fee, we issued to the Placement Agent and its designees warrants to purchase up to 20,833 shares (the “Placement Agent
Warrant Shares”) of common stock (5% of the number of shares sold in the Private Placement (the “Placement Agent Warrants”)).
The Placement Agent Warrants will be exercisable for a period commencing six months from issuance, will expire four years from the effectiveness
of a registration statement for the resale of the underlying shares, and have an initial exercise price of $13.20 per share.
In
connection with the Purchase Agreement, we and the Purchaser entered into a registration rights agreement. Pursuant to the registration
rights agreement, we agreed to file a registration statement with the Securities and Exchange Commission (the “SEC”) to register
the resale by the Purchaser of the shares sold under the Purchase Agreement and the shares issuable upon exercise of the Investor Warrants
no more than 15 days after the date of closing, and to have such registration statement declared effective within 30 days of filing (or
60 days in the event of a “full review” by the SEC).
This
prospectus includes the resale of (i) 416,667 shares issued under the Purchase Agreement, (ii) 833,334 shares underlying the
Investor Warrants issued under the Purchase Agreement, and (iii) 20,833 Placement Agent Warrant Shares.
We are filing the registration
statement of which this prospectus forms a part to satisfy our obligations under the registration rights agreement.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking
statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as
amended, or the Exchange Act. Forward-looking statements give current expectations or forecasts of future events or our future financial
or operating performance. We may, in some cases, use words such as “anticipate,” “believe,” “could,”
“estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,”
“project,” “should,” “will,” “would” or the negative of those terms, and similar expressions
that convey uncertainty of future events or outcomes to identify these forward-looking statements.
These
forward-looking statements reflect our management’s beliefs and views with respect to future events, are based on estimates and
assumptions as of the date of this prospectus and are subject to risks and uncertainties, many of which are beyond our control, that
could cause our actual results to differ materially from those in these forward-looking statements. We discuss many of these risks in
greater detail in this prospectus under “Risk Factors” and in our Annual Report on Form 10-K
filed with the SEC on December 13, 2022, as amended by our Annual Report on Form 10-K/A filed with the SEC on December 14,
2022, as well as those described in the other documents we file with the SEC. Moreover, 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 uncertainties, you should not place undue reliance on these forward-looking statements.
We undertake no obligation
to publicly update any forward-looking statement, whether as a result of new information, future developments or otherwise, except as
may be required by applicable laws or regulations.
RISK FACTORS
An
investment in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider
carefully the risks and uncertainties discussed below, as well as those under the heading “Risk
Factors” contained in our Annual
Report on Form 10-K for the year ended August 31, 2022, as amended by our Annual
Report on Form 10-K/A for the year ended August 31, 2022, as filed with the SEC, and as incorporated by reference in this
prospectus, as the same may be amended, supplemented or superseded by the risks and uncertainties described under similar headings in
the other documents that are filed by us after the date hereof and incorporated by reference into this prospectus.
Risks Relating to Our Business
Our sponsorship
of the SPACs creates a risk that we will be categorized as an investment company that is subject to registration under the Investment
Company Act of 1940 (the “1940 Act”). 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.
On April 29, 2021,
we announced our sponsorship, through our wholly-owned subsidiary, ShiftPixy Investments, Inc. ("Investments"), of four
SPACs: Vital Human Capital, Inc. ("Vital"), TechStackery, Inc. ("TechStackery"), Firemark Global Capital, Inc.
("Firemark"), and Industrial Human Capital, Inc. ("IHC"). Each SPAC was seeking to raise approximately $150 million
in capital investment, through an IPO, to acquire companies in the healthcare, industrial and technology segments of the staffing industry,
as well as one or more insurance entities. In comment letters to two of our registration statements, the SEC inquired as to whether our
activities in relation to the SPACs might cause the Company to be classified as an investment company. Section 3(a)(1)(A) of
the Investment Company Act 1940 (the “1940 Act”) defines as an investment company any issuer that is or holds itself out
as being, engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting or trading in securities. Section 3(a)(1)(C) of
the 1940 Act defines “investment company” to mean 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 such issuer’s total assets. Such investment companies are required to register and meet other requirements
promulgated under the 1940 Act. Our investment in IHC and the other SPACs discussed above could give rise to a determination that we
are or were an investment company subject to registration under the 1940 Act. Such a determination could have a material adverse effect
on our business operations, projected revenues and earnings, and growth prospects.
We believe that we are
not an investment company, and we always intended to conduct our operations so that we will not be deemed to be an investment company.
In this regard, we note, first, that we are and hold ourselves out to be an HCM platform that provides real-time business intelligence
along with HR services on a fee-based business model. Our HR services include human resources, employment compliance, employment related
insurance, payroll, and operational employment services solutions for our clients and WSEs. In sum, our business is HCM using technology,
not investing, reinvesting or trading in securities. In addition, each SPAC IPO registration statement and related prospectus included
an exception permitting us to transfer our ownership in the founder shares at any time to the extent that we determine, in good faith,
that such transfer is necessary to ensure that we comply with the 1940 Act. Ultimately, however, on March 18, 2022, the IPO registration
statements related to three of the SPACs we had sponsored, Vital, TechStackery, and Firemark were withdrawn.
However, the analysis
as to the investment of our subsidiary, ShiftPixy Investments, Inc., in the Founder's Shares of IHC is different. We acquired the
Founder Shares on April 22, 2021, and we believe that we exceeded the 40% Threshold on October 19, 2021, 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,
2021, 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, 2021, 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.
With these considerations
in mind, on May 13, 2022, we issued a press release announcing a special distribution of shares of common stock of IHC to all ShiftPixy
shareholders of record as of May 17, 2022. The shares in IHC were expected to be distributed to eligible ShiftPixy shareholders
as soon as practicable following the completion of the IBC, subject to a registration statement covering the IHC shares being declared
effective by the SEC. We believed that in the event of such distribution of the IHC shares, we would no longer own such shares and would
accordingly ensure that we and/or any of our parents, subsidiaries or affiliates are in compliance with the 1940 Act.
While we anticipated the
disposition of our subsidiary’s securities in IHC by October 19, 2022, we believe that certain events nullified the need for
that action. Specifically, in connection with the vote of the Shareholders of IHC at the meeting on October 14, 2022, regarding
extending IHC, shareholders holding 11,251,347 public shares of IHC exercised their right to redeem their shares for a pro rata portion
of the funds in the Trust Account, leaving only 248,653 of IHC’s remaining public shares outstanding and the amount in the Trust
Account substantially below the $5,000,001 minimum net tangible asset amount required by IHC's Amended and Restated Certificate of Incorporation
to be available upon consummation of its initial business combination. IHC's efforts to secure the decisions of some shareholders to
reverse their redemptions were unsuccessful, prompting the following consequences: (a) IHC's sponsor declined to fund the extension,
(b) the board of directors of IHC adopted resolutions to immediately cease operations and proceed to dissolve and unwind, (c) IHC
cancelled the extension amendment as filed with the Secretary of State of Delaware, (d) in accordance with the Amended and Restated
Certificate of Incorporation of IHC, because the corporate existence was not extended, IHC’s existence ceased as of October 22,
2022—the date by which IHC was required to have completed its initial business combination, (e) 100% of the public shareholders
will have their public shares redeemed, (f) our subsidiary’s investment in IHC has been rendered worthless, (g) the NYSE
has initiated the delisting process as to all securities of IHC, (h) the final franchise taxes for IHC have been paid, (i) the
Certificate of Dissolution for IHC was filed with the Secretary of State of Delaware on November 14, 2022, and (j) IHC is otherwise
completing its wind down procedures.
Thus, although the Company
technically held shares in IHC past October 19, 2022, the date by which we anticipated our subsidiary to have disposed of the IHC
shares, we believe that IHC terminated, for all practical purposes, as of the meeting date of October 14, 2022, such that IHC has
been in the dissolution and wind-up process since that date. The Company accordingly believes that did not fall within the purview of
the 1940 Act, because the securities held by the Company’s subsidiary in IHC and the net assets of IHC effectively became worthless
on October 14, 2022. However, because our subsidiary held securities in IHC past October 19, 2022, there can be no assurances
that we will not be deemed to be an investment company under the 1940 Act.
If we are deemed to be
an investment company under the 1940 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, or after October 19, 2022, 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. |
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, and
make it impractical for us to continue our business as contemplated and could have a material adverse effect on our business, financial
condition and results of operations.
Risks Relating to This Offering
The sale of a substantial
amount of our common stock, including resale of the shares of common stock by the selling stockholders in the public market, could adversely
affect the prevailing market price of our common stock.
We are registering for resale
1,270,834 shares of common stock, including 416,667 outstanding shares and 854,167 shares issuable upon exercise of the Warrants held
by the selling stockholders. Sales of substantial amounts of our common stock in the public market, or the perception that such sales
might occur, could adversely affect the market price of our common stock. We cannot predict if and when the selling stockholders may
sell such shares in the public market.
USE OF PROCEEDS
We will not receive any of
the proceeds from any sale or other disposition of the shares of common stock covered by this prospectus. All proceeds from the sale
of the shares will be paid directly to the selling stockholder. We will receive proceeds upon the cash exercise of the Warrants, however.
Assuming full cash exercise of the Warrants at the initial exercise price, we would receive gross proceeds of approximately $10.3 million.
We currently intend to use any proceeds from Warrant exercises for general corporate purposes, including payment of outstanding accounts
payable and working capital.
To the extent the resale
of the shares of common stock underlying Warrants is registered under the Securities Act and there is a prospectus available for such
registered resale, holders of Warrants are required to pay the exercise price for the Warrants in cash. If no such registration statement
and prospectus are available six months following the applicable issuance date of the Warrants, the Warrants may be exercised through
cashless exercise, where the holder of the Warrants receives fewer shares upon exercise of its Warrants but does not pay us any cash
to exercise the Warrants.
SELLING STOCKHOLDERS
The shares of common stock
being offered by the selling stockholders include (i) 416,667 shares issued under the Purchase Agreement, (ii) 833,334 shares
underlying the Investor Warrants issued under the Purchase Agreement, and (iii) 20,833 Placement Agent Warrant Shares. We are registering
the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except as set
forth below, the selling stockholders have not had had any material relationship with us within the past three years. Except as set for
the below, none of the selling stockholders is a broker-dealer or an affiliate of a broker-dealer.
The table below lists
the selling stockholders and other information regarding the beneficial ownership of the shares of common stock by the selling stockholders.
The second column lists the number of shares of common stock beneficially owned by the selling stockholders, based on their ownership
of the shares of common stock and warrants, as of December 14, 2022, assuming exercise of any warrants held by the selling stockholders
on that date, without regard to any limitations on exercises.
The third column lists the
shares of common stock being offered by this prospectus by the selling stockholders.
In accordance with the terms
of a registration rights agreement with the purchaser under the Purchase Agreement, this prospectus generally covers the resale of the
shares of common stock issued under the Purchase Agreement or issuable upon exercise of the Warrants, determined as if the outstanding
Warrants were exercised in full as of the trading day immediately preceding the date this registration statement was initially filed
with the SEC, each as of the trading day immediately preceding the applicable date of determination and all subject to adjustment as
provided in the registration rights agreement, without regard to any limitations on the exercise of the Warrants. The fourth column assumes
the sale of all of the shares offered by the selling stockholders pursuant to this prospectus.
Under
the terms of the Warrants, the selling stockholders may not exercise the Warrants to the extent such exercise would cause such selling
stockholder, together with its affiliates and attribution parties, to beneficially own a number of shares of common stock which would
exceed 4.99% of our then outstanding common stock following such exercise, excluding for purposes of such determination shares of common
stock issuable upon exercise of the Warrants which have not been exercised. The number of shares in the second column does not reflect
this limitation. The selling stockholders may sell all, some or none of its shares in this offering. See “Plan of Distribution.”
| Name of selling stockholder | |
Number of shares of
common stock owned
prior to offering(1) | | |
Maximum number of
shares of common
stock to be sold
pursuant to this
prospectus | | |
Number of shares of
common stock owned
after offering(2) | | |
Percentage of
outstanding common
stock owned after the
offering(3) | |
| Armistice Capital Master Fund Ltd. (4) | |
| 1,603,410 | (5) | |
| 1,250,001 | (6) | |
| 353,409 | | |
| 3.2 | % |
| A.G.P./Alliance Global Partners(7) | |
| 10,562 | | |
| 7,291 | (8) | |
| 3,271 | | |
| * | |
| David Bocchi(9) | |
| 4,910 | | |
| 3,541 | (8) | |
| 1,369 | | |
| * | |
| Alex Barrientos(9) | |
| 4,976 | | |
| 3,541 | (8) | |
| 1,435 | | |
| * | |
| David Birenbaum(8) | |
| 1,504 | | |
| 1,197 | (8) | |
| 307 | | |
| * | |
| George Anagnostou(9) | |
| 2,877 | | |
| 2,006 | (8) | |
| 871 | | |
| * | |
| Zachary Grodko(9) | |
| 603 | | |
| 416 | (8) | |
| 187 | | |
| * | |
| James Tang(9) | |
| 603 | | |
| 416 | (8) | |
| 187 | | |
| * | |
| Keith Donofrio(9) | |
| 1,297 | | |
| 895 | (8) | |
| 402 | | |
| * | |
| Thomas Higgins(9) | |
| 457 | | |
| 333 | (8) | |
| 124 | | |
| * | |
| Kevin Oleskewicz(9) | |
| 1,257 | | |
| 1,197 | (8) | |
| 60 | | |
| * | |
* Less than 1%.
| (1) |
Under applicable SEC rules,
a person is deemed to beneficially own securities which the person has the right to acquire within 60 days through the exercise of
any option or warrant or through the conversion of a convertible security. Also under applicable SEC rules, a person is deemed to
be the “beneficial owner” of a security with regard to which the person directly or indirectly, has or shares (a) voting
power, which includes the power to vote or direct the voting of the security, or (b) investment power, which includes the power
to dispose, or direct the disposition, of the security, in each case, irrespective of the person’s economic interest in the
security. To our knowledge, subject to community property laws where applicable, the selling stockholders named in the table have
sole voting and investment power with respect to the common stock shown as beneficially owned by such selling stockholder, except
as otherwise indicated in the footnotes to the table. |
| (2) |
Represents the amount of
shares that will be held by the selling stockholder after completion of this offering based on the assumptions that (a) all
common stock registered for resale by the registration statement of which this prospectus is part will be sold and (b) no other
shares of common stock are acquired or sold by the selling stockholder prior to completion of this offering. However, the selling
stockholders may sell all, some or none of such shares offered pursuant to this prospectus and may sell other shares of common stock
that they may own pursuant to another registration statement under the Securities Act or sell some or all of their shares pursuant
to an exemption from the registration provisions of the Securities Act, including under Rule 144. |
| (3) |
Based on 9,671,196 shares
of common stock outstanding as of December 14, 2022, and assumes that following the offering all of the Warrants will have been
exercised (such that 10,525,363 shares of common stock will be outstanding), and all of the shares offered by the selling stockholders
hereunder will have been sold. |
| (4) |
The shares are directly
held by Armistice Capital Master Fund Ltd. (the “Master Fund”), a Cayman Islands exempted company, and may be deemed
to be indirectly beneficially owned by Armistice Capital, LLC (“Armistice”), as the investment manager of the Master
Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. Armistice and Steven Boyd disclaim beneficial ownership
of the reported securities except to the extent of their respective pecuniary interest therein. The address of the Master Fund is
c/o Armistice Capital, LLC, 510 Madison Avenue, 7th Floor, New York, NY 10022. |
| (5) |
Represents (i) 416,667
shares sold under Purchase Agreement, (ii) 833,334 shares underlying Investor Warrants, and (iii) 353,409 shares issuable
upon exercise of other warrants. The warrants (including the Investor Warrants) are each subject to certain beneficial ownership
limitations that prohibit the Master Fund from exercising any portion of them if, following such exercise, the Master Fund’s
ownership of our common stock would exceed 4.99% of our outstanding shares of common stock. |
| (6) |
Includes (i) 416,667
shares sold under Purchase Agreement and (ii) 833,334 shares underlying Investor Warrants. The Investor Warrants are subject
to certain beneficial ownership limitations that prohibit the Master Fund from exercising any portion of them if, following such
exercise, the Master Fund’s ownership of our common stock would exceed 4.99% of our outstanding shares of common stock. |
| (7) |
The selling stockholder
is a broker-dealer. The selling stockholder received the Placement Agent Warrants as compensation for acting as placement agent in
the Private Placement. The selling stockholder has also acted as underwriter or placement agent in prior offerings of the Company. |
| (8) |
Represents Placement Agent
Warrant Shares. |
| (9) |
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 Private
Placement. |
PLAN OF DISTRIBUTION
The selling stockholders
of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of its 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. The selling stockholders 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 stockholder 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 stockholders
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 stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts
from the selling stockholder (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 2440; and in the case of a principal transaction a markup or markdown
in compliance with FINRA IM-2440.
In connection with the sale
of the securities or interests therein, the selling stockholders 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
stockholders 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 stockholders 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 stockholders
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. The selling stockholders have informed the Company that they do 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 stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus
effective until the earlier of (i) the date on which the securities may be resold by the selling stockholders without registration
and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to
be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect
or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other
rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have
been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available
and is complied with.
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 stockholders 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 stockholder or any other person. We will make copies of this prospectus available to the selling stockholders 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.
EXPERTS
The
consolidated financial statements of ShiftPixy, Inc. at August 31, 2022 and 2021 appearing in our Annual
Report on Form 10-K for the year ended August 31, 2022, as amended by our Annual
Report on Form 10-K/A for the year ended August 31, 2022, have been audited by Marcum LLP, independent registered public
accountants, as set forth in its report thereon included therein, which include an explanatory paragraph as to the Company’s ability
to continue as a going concern and which are incorporated herein by reference. Such financial statements are incorporated herein by reference
in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC
a registration statement on Form S-3 under the Securities Act that registers the resale of the shares of our common stock covered
by this prospectus. This prospectus does not contain all of the information set forth in the registration statement and the exhibits
thereto. For further information with respect to us and our common stock, you should refer to the registration statement and the exhibits
filed as a part of the registration statement. Statements contained in or incorporated by reference into this prospectus concerning the
contents of any contract or any other document are not necessarily complete. If a contract or document has been filed as an exhibit to
the registration statement or one of our filings with the SEC that is incorporated by reference into the registration statement, we refer
you to the copy of the contract or document that has been filed. Each statement contained in or incorporated by reference into this prospectus
relating to a contract or document filed as an exhibit is qualified in all respects by the filed exhibit.
We are subject to the informational
reporting requirements of the Exchange Act. We file reports, proxy statements and other information with the SEC. Our SEC filings are
available over the Internet at the SEC’s website at http://www.sec.gov.
We make available, free of
charge, on our website at www.shiftpixy.com, our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports
on Form 8-K and amendments to those reports and statements as soon as reasonably practicable after they are filed with the SEC.
The contents of our website are not part of this prospectus, and the reference to our website does not constitute incorporation by reference
into this prospectus of the information contained on or through that site, other than documents we file with the SEC that are specifically
incorporated by reference into this prospectus.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to “incorporate
by reference” into this prospectus the information in documents we file with it, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus,
and information that we file later with the SEC will automatically update and supersede this information. Any statement contained in
any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained in or omitted from this prospectus or any accompanying prospectus supplement,
or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes
such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this prospectus.
We incorporate by reference
the documents listed below and any future documents that we file with the SEC (excluding any portion of such documents that are furnished
and not filed with the SEC) under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial
filing of the registration statement of which this prospectus forms a part prior to the effectiveness of the registration statement and
(ii) after the date of this prospectus until the offering of the securities is terminated:
| |
● |
our Current Reports
on Form 8-K filed with the SEC on September 6,
2022, September 8,
2022, September 21,
2022, September 23,
2022, October 3,
2022, and December 5,
2022; and |
You may request a copy of
these filings, at no cost, by writing or telephoning us at the following address: ShiftPixy, Inc., Attention: Corporate Secretary,
501 Brickell Key Drive, Suite 300, Miami, FL 33131, phone number (888) 798-9100.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table provides
information regarding the various expenses (other than placement agent fees) payable by us in connection with the issuance and distribution
of the securities being registered hereby. All amounts shown are estimates except the SEC registration fee.
| Securities and Exchange Commission Registration Fee | |
$ | 2,045 | |
| Legal Fees and Expenses | |
| 175,000 | |
| Accounting Fees and Expenses | |
| 10,000 | |
| Miscellaneous | |
| 5,000 | |
| Total | |
$ | 192,045 | |
Item 15. Indemnification of Officers and Directors.
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.”
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing
provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the
Securities 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, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed hereby in the Securities
Act and we will be governed by the final adjudication of such issue.
Item 16. Exhibits.
| 3.1 |
Amended
and Restated Articles of Incorporation (incorporated by reference to 8-K filed March 26, 2020) |
| |
|
| 3.2 |
Certificate
of Amendment to Amended and Restated Articles of Incorporation (incorporated by reference to 8-K filed May 17, 2021) |
| |
|
| 3.3 |
Articles
of Amendment to Amended and Restated Articles of Incorporation (incorporated by reference to 8-K filed August 31, 2022) |
| |
|
| 3.4 |
Certificate
of Correction to Articles of Amendment to Amended and Restated Articles of Incorporation (incorporated by reference to 8-K filed
August 31, 2022) |
| |
|
| 3.5 |
Bylaws
(incorporated by reference to 8-K filed July 19, 2022) |
| |
|
| 5.1* |
Opinion
of Bailey, Stock, Harmon, Cottam, Lopez LLP |
| |
|
| 23.1* |
Consent of Marcum LLP |
| |
|
| 23.2* |
Consent of Bailey, Stock,
Harmon, Cottam, Lopez LLP (included in Exhibit 5.1) |
| |
|
| 107** |
Calculation of Filing Fee
Tables |
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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective Registration Statement; and
(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 (1)(i), (1)(ii) and (1)(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 that are incorporated by reference
in the Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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 under the Securities Act to any purchaser:
(A) Each prospectus filed
by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date; and
(5) The undersigned
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 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.
(6) 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 Securities 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 Securities Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Miami, State of Florida, on December 16, 2022.
| |
SHIFTPIXY, INC. |
| |
|
|
| |
By: |
/s/ Scott W.
Absher |
| |
|
Scott W. Absher |
| |
|
Chief Executive Officer (principal executive officer) |
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates
indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Scott W.
Absher |
|
Chief Executive Officer and Director |
|
December 16, 2022 |
| Scott W. Absher |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Manuel Rivera |
|
Acting Chief Financial Officer |
|
December 16, 2022 |
| Manuel Rivera |
|
(Principal Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Kenneth
Weaver |
|
Director |
|
December 16, 2022 |
| Kenneth Weaver |
|
|
|
|
| |
|
|
|
|
| /s/ Whitney
White |
|
Director |
|
December 16, 2022 |
| Whitney White |
|
|
|
|
| |
|
|
|
|
| /s/ Christopher
Sebes |
|
Director |
|
December 16, 2022 |
| Christopher Sebes |
|
|
|
|
| |
|
|
|
|
| /s/ Amanda Murphy |
|
Director |
|
December 16, 2022 |
| Amanda Murphy |
|
|
|
|
