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--08-31
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0001675634
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2022-08-31
0001675634
2022-02-28
0001675634
2022-12-12
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 2)
| (Mark One) |
| |
| x |
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 |
| |
|
| |
For the fiscal year ended August
31, 2022 |
OR
| ¨ |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 |
| |
|
| |
For the transition period from _____________ to _____________ |
SEC File No. 024-10557
(Exact name of registrant as specified in its
charter)
| Wyoming |
|
47-4211438 |
| (State of incorporation or organization) |
|
(I.R.S. Employer Identification
No.) |
| |
|
|
| 13450
W Sunrise Blvd, Suite 650, Sunrise, FL |
|
33323 |
| (Address of principal executive
offices) |
|
(Zip Code) |
Registrant’s telephone number: (888)
798-9100
Securities to be registered pursuant to Section 12(b) of
the Act:
| Common Stock, par value $0.0001 per
share |
|
Trading
Symbol(s) |
|
The NASDAQ Stock Market LLC |
| Title of each class registered |
|
PIXY |
|
Name of each exchange on which
each class is registered |
Securities registered pursuant to Section 12(g) of
the Act: None
Indicate by check mark if the registrant is
a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x
Indicate by check mark if the registrant is
not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No x
Indicate by check mark whether the registrant
(1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days. Yes x No o
Indicate by check mark whether the registrant
has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§
232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Yes x No o
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging 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 |
o |
Accelerated filer |
o |
| |
|
|
|
| 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 for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act
Indicate by check mark whether the registrant
has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial
reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. §7262(b)) by the registered public accounting firm
that prepared or issued its audit report. o
Indicate by check mark whether the registrant
is a shell company (as defined in Rule 12b-2 of the Act.) Yes o No
x
As of February 28, 2022, the aggregate market
value (based on the Nasdaq quoted closing price of $85.10) of the common stock held by non-affiliates of the registrant was approximately
$39.87 million.
The number of outstanding shares of Registrant’s
Common Stock, $0.0001 par value, was 9,671,196 shares as of December 12, 2022.
| Auditor Name |
|
Auditor Location |
|
Auditor Firm ID |
| Marcum LLP |
|
New York, NY |
|
(PCAOB NO 688) |
Explanatory Note
The
purpose of this Amendment No. 2 (the “Amendment”) to the Annual Report on Form 10-K of ShiftPixy, Inc. (the
“Company”) for the year ended August 31, 2022 (the “Original Form 10-K”) is to re-file certain certifications.
Except as otherwise set forth in this Explanatory Note, no other information included in the Original Form 10-K is amended or changed
by this Amendment.
Item 15. Exhibits
| Exhibit |
|
| No. |
Document Description |
| |
|
| 3.1 |
Articles
of Incorporation of ShiftPixy, Inc., as filed with the Wyoming Secretary of State on June 3, 2015 (incorporated by reference from
Exhibit 2.1 to our Offering Circular filed with the SEC on Form 1-A on May 31, 2016) |
| |
|
| 3.2 |
Articles
of Amendment to Articles of Incorporation of ShiftPixy, Inc., dated September 28, 2016 (incorporated by reference from Exhibit
2.6 to our Form 1-A/A filed with the SEC on October 18, 2016) |
| |
|
| 3.3 |
Articles
of Amendment to Articles of Incorporation of ShiftPixy, Inc., dated January 7, 2020 (incorporated by reference from Exhibit 3
to our current Report on Form 8-K, filed with the SEC on January 23, 2020) |
| |
|
| 3.4 |
Amended
and Restated Articles of Incorporation of ShiftPixy, Inc., dated March 20, 2020 (incorporated by reference from Exhibit 3.1 to
our Current Report on Form 8-K, filed with the SEC on March 26, 2020) |
| |
|
| 3.5 |
Articles
of Amendment to Amended and Restated Articles of Incorporation of ShiftPixy, Inc., dated May 7, 2021 (incorporated by reference
from Exhibit 3.1 to our Current Report on Form 8-K, fined with the SEC on May 17, 2021) |
| |
|
| 3.6 |
Articles
of Amendment to Amended and Restated Articles of Incorporation of ShiftPixy, Inc, dated August 2, 2022 (incorporated by reference
from Exhibit 3.1 to our Current Report on Form 8-K, filed with the SEC on August 31, 2022) |
| |
|
| 3.7 |
Articles
of Correction to Articles of Amendment to Amended and Restated Articles of Incorporation of ShiftPixy, Inc, dated August 15, 2022
(incorporated by reference from Exhibit 3.1.1 to our Current Report on Form 8-K, filed with the SEC on August 31, 2022) |
| 3.8 |
Bylaws
of ShiftPixy, Inc., as amended through July 15, 2022 (incorporated by reference from Exhibit 10.2 to our Form 8-K, filed with
the SEC on July 19, 2022) |
| |
|
| 4.1 |
Amended
Principal Shareholder Option for Preferred Stock (incorporated by reference as Exhibit 3.5 to our 1-A/A, filed with the SEC on
October 18, 2016) |
| |
|
| 4.2 |
Description
of the Registrant’s Securities (incorporated by reference as Exhibit 4.2 to our Annual Report on Form 10-K, filed with the
SEC on November 30. 2020) |
| |
|
| 10.1 |
Stock
Option and Stock Issuance Plan (incorporated by reference as Exhibit 3.8 to our 1-A POS, filed with the SEC on April 4, 2017) |
| |
|
| 10.2† |
First
Amendment to Director Agreement, by and between ShiftPixy, Inc. and Kenneth W. Weaver Agreement, dated August 1, 2017 (incorporated
by reference from Exhibit 10.7 to our Annual Report on form 10-K/A, Amendment No. 2, filed with the SEC on October 18, 2018) |
| |
|
| 10.03† |
Offer
Letter to Scott W. Absher, dated March 23, 2016 (incorporated by reference from Exhibit 10.27 to our registration statement on
Form S-1, filed with the SEC on March 30, 2020) |
| |
|
| 10.04† |
Appointment
of Manuel Rivera to the position of Treasurer and Acting Chief Financial Officer of ShiftPixy, Inc (as announced in our Form 8K
filed with the SEC on May 24, 2022) |
| |
|
| 10.05† |
Scott
W. Absher Surrender of ShiftPixy's Preferred Options (incorporated by reference from Exhibit 10.1 our Form 8K filed with the SEC
on July 19, 2022) |
| |
|
| 10.6 |
Form
of Warrant (incorporated by reference from Exhibit 4.1 to our Current Report on Form 8-K, filed with the SEC on May 17, 2021) |
| |
|
| 10.7 |
Form
of Pre-Funded Warrant (incorporated by reference from Exhibit 4.2 to our Current Report on Form 8-K, the SEC on May 17, 2021) |
| |
|
| 10.8 |
Form
of Securities Purchase Agreement (incorporated by reference from Exhibit 10.1 to our Current Report on Form 8-K, filed with SEC
on May 17, 2021). |
| |
|
| 10.9 |
Placement
Agent Agreement, dated May 13, 2021, by and between ShiftPixy, Inc. and A.G.P./Alliance Global Partners (incorporated by reference
from Exhibit 10.2 to our Current Report on Form 8-K, filed with the SEC on May 17, 2021). |
| 10.10 |
Form
of Letter Agreement (incorporated by reference from Exhibit 10.1 to our Current Report on Form 8-K, filed with the SEC on August
18, 2021). |
| |
|
| 10.11 |
Form
of Warrant (incorporated by reference from Exhibit 4.1 to our Current Report on Form 8-K, filed with the SEC on September 2, 2021) |
| |
|
| 10.12 |
Form
of Pre-Funded Warrant (incorporated by reference as Exhibit 4.2 to our Current Report on Form 8-K, filed with the SEC on September
2, 2021) |
| |
|
| 10.13 |
Form
of Securities Purchase Agreement (incorporated by reference as Exhibit 10.1 to our Current Report on Form 8-K, filed with the
SEC on September 2, 2021). |
| |
|
| 10.14 |
Placement
Agent Agreement, dated May 13, 2021, by and between ShiftPixy, Inc. and A.G.P./Alliance Global Partners (incorporated by reference
from Exhibit 10.2 to our Current Report on Form 8-K, filed with the SEC on September 2, 2021). |
| |
|
| 10.15 |
Form
of Warrants (incorporated by reference from Exhibit 4.1 to our Current Report on Form 8-K, filed with the SEC on January 27, 2022). |
| |
|
| 10.16 |
Form
of Warrant Exercise Agreement (incorporated by reference from Exhibit 10.1 to our Current Report on Form 8-K, filed with the SEC
on January 27, 2022). |
| |
|
| 10.17 |
Form
of Registration Rights Agreement (incorporated by reference from Exhibit 10.2 to our Current Report on Form 8-K, filed with SEC
on January 27, 2022). |
| |
|
| 10.18 |
Form
of Warrant (incorporated by reference from Exhibit 10.1 to our Current Report on Form 8-K, filed with the SEC on July 19, 2022). |
| |
|
| 10.19 |
Form
of Warrant Exercise Agreement (incorporated by reference from Exhibit 10.2 to our Current Report on Form 8-K, filed with the SEC
on July 19, 2022). |
| |
|
| 10.20 |
Form
of Registration Rights Agreement (incorporated by reference from Exhibit 10.3 to our Current Report on Form 8-K, filed with the
SEC on July 19, 2022), |
| |
|
| 10.21 |
Amendment
No. 1 to Common Stock Purchase Warrant (incorporated by reference form Exhibit 10.1 to our Current Report on Form 8-K, filed with
the SEC on July 26, 2022). |
| 10.22 |
Unregistered
Sale of Equity Securities (as announced in our Current Report on Form 8-K filed with the SEC on September 6, 2022). |
| |
|
| 10.23 |
Form
of Securities Purchase Agreement (incorporated by reference from Exhibit 10.1 to our Current Report on Form 8-K, filed with SEC
on September 23, 2022). |
| |
|
| 10.24 |
Form
of Warrant (incorporated by reference from Exhibit 10.2 to our Current Report on Form 8-K, filed with SEC on September 23, 2022). |
| |
|
| 10.25 |
Form
of Registration Rights Agreement (incorporated by reference from Exhibit 10.3 to our Current Report on Form 8-K, filed with SEC
on September 23, 2022). |
| |
|
| 10.26 |
Amendment
No. 1 to Warrants (incorporated by reference from Exhibit 10.4 to our Current Report on Form 8-K, filed with SEC on September
23, 2022). |
| |
|
| 10.27 |
Placement
Agent Agreement (incorporated by reference from Exhibit 10.5 to our Current Report on Form 8-K, filed with SEC on September 23,
2022). |
| |
|
| 10.28 |
Form
of Placement Agent Warrant (incorporated by reference from Exhibit 10.6 to our Current Report on Form 8-K, filed with SEC on September
23, 2022). |
| |
|
| 21.1 |
List
of Subsidiaries of ShiftPixy, Inc. (incorporated by reference From Exhibit 21.1 to our Form 10-K and Form 10-K/A, filed with SEC
on December 2, 2021 and February 28,2022, respectively). |
| |
|
| 23.1*** |
Consent
of Independent Registered Public Accounting Firm—Marcum LLP, New York, New York, PCAOB ID No. 688 |
| |
|
| 31.1* |
CERTIFICATION
of CEO PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 |
| |
|
| 31.2** |
CERTIFICATION
of CFO PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 |
| |
|
| 32.1* |
CERTIFICATION
of CEO PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 |
| |
|
| 32.2** |
CERTIFICATION
of CFO PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 |
| |
|
| 101*** |
Inline XBRL Document Set
for the consolidated financial statements and accompanying notes in Part II, Item 8, |
| |
|
| 104*** |
Inline XBRL for the cover
page of this Annual Report on Form 10-K, included in the Exhibit 101 Inline XBRL Document Set. |
* Filed herewith
** Furnished herewith
*** Previously filed
†Indicates
a management contract or compensatory plan or arrangement.
SIGNATURES
Pursuant to the requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
ShiftPixy, Inc.,
a Wyoming corporation
| Title |
|
Name |
|
Date |
|
Signature |
| |
|
|
|
|
|
|
| Principal Executive Officer |
|
Scott W. Absher |
|
February 3, 2023 |
|
/s/ Scott W. Absher |
Pursuant to the requirements of
the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the registrant and in the capacities
and on the dates indicated:
| SIGNATURE |
|
NAME |
|
TITLE |
|
DATE |
| |
|
|
|
|
|
|
| /s/ Scott W. Absher |
|
Scott W. Absher |
|
Principal Executive Officer and Director
(Principal Executive Officer) |
|
February 3, 2023 |
| |
|
|
|
|
|
|
| /s/ Douglas Beck |
|
Douglas Beck |
|
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer) |
|
February 3, 2023 |
| |
|
|
|
|
|
|
| /s/ Christopher Sebes |
|
Christopher Sebes |
|
Independent Director |
|
February 3, 2023 |
| |
|
|
|
|
|
|
| /s/ Kenneth W. Weaver |
|
Kenneth W. Weaver |
|
Independent Director |
|
February 3, 2023 |
| |
|
|
|
|
|
|
| /s/ Whitney J. White |
|
Whitney J. White |
|
Independent Director |
|
February 3, 2023 |
| |
|
|
|
|
|
|
| /s/ Amanda Murphy |
|
Amanda Murphy |
|
Director |
|
February 3, 2023 |