Exhibit 10.2





 


August 31, 2021


 


ShiftPixy, Inc.


501 Brickell Key Drive, Suite 300


Miami, FL 33131


 


Dear Mr. Scott W. Absher:


 


This letter (the “Agreement”)
constitutes the agreement between A.G.P./Alliance Global Partners (the “Placement Agent”) and ShiftPixy, Inc., a Wyoming
corporation (the “Company”), that the Placement Agent shall serve as the exclusive placement agent for the Company,
on a “reasonable best efforts” basis, in connection with the proposed placement (the “Placement”) of (i)
shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”),
(ii) warrants to purchase shares of Common Stock (the “Common Warrants”) and (iii) pre-funded warrants to purchase
shares of Common Stock (the “Pre-Funded Warrants” and together with the Shares and Common Warrants, the “Securities”).
The Securities actually placed by the Placement Agent are referred to herein as the “Placement Agent Securities.” The
terms of the Placement shall be mutually agreed upon by the Company and the purchaser of the Securities (the “Purchaser”),
and nothing herein constitutes that the Placement Agent would have the power or authority to bind the Company or the Purchaser, or an
obligation for the Company to issue any Securities or complete the Placement. The Company expressly acknowledges and agrees that the Placement
Agent’s obligations hereunder are on a reasonable best efforts basis only and that the execution of this Agreement does not constitute
a commitment by the Placement Agent to purchase the Securities and does not ensure the successful placement of the Securities or any portion
thereof or the success of the Placement Agent with respect to securing any other financing on behalf of the Company. The Placement Agent
may retain other brokers or dealers to act as sub-agents or selected-dealers on its behalf in connection with the Placement. Certain affiliates
of the Placement Agent may participate in the Placement by purchasing some of the Placement Agent Securities. The sale of Placement Agent
Securities to the Purchaser will be evidenced by a securities purchase agreement (the “Purchase Agreement”) between
the Company and such Purchaser, in a form reasonably acceptable to the Company and the Purchaser. Capitalized terms that are not otherwise
defined herein have the meanings given to such terms in the Purchase Agreement. Prior to the signing of any Purchase Agreement, officers
of the Company will be available to answer inquiries from the prospective Purchaser.


 


SECTION 1. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY; COVENANTS OF THE COMPANY.


 


A. Representations of the
Company. With respect to the Placement Agent Securities, each of the representations and warranties (together with any related disclosure
schedules thereto) and covenants made by the Company to the Purchaser in the Purchase Agreement in connection with the Placement, are
hereby incorporated herein by reference into this Agreement (as though fully restated herein) and is, as of the date of this Agreement
and as of the Closing Date, hereby made to, and in favor of, the Placement Agent. In addition to the foregoing, the Company represents
and warrants that there are no affiliations with any FINRA (as defined below) member firm among the Company’s officers, directors
or, to the knowledge of the Company, any five percent (5.0%) or greater securityholder of the Company, except as set forth in the Purchase
Agreement. 


 


B. Covenants of the Company.
The Company covenants and agrees to continue to retain (i) a firm of independent PCAOB registered public accountants for a period of at
least five (5) years after the Closing Date and (ii) a competent transfer agent with respect to the Common Stock for a period of five
(5) years after the Closing Date. In addition, from the date hereof until 90 days after the Effective Date, neither the Company nor any
Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock
or Common Stock Equivalents. Notwithstanding the foregoing, the Company may file a shelf registration statement on Form S-3 and may take
all steps necessary to have said registration statement declared effective during such 90 day period. This Section 1(B) shall not apply
in respect of an Exempt Issuance.


 






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SECTION 2. REPRESENTATIONS
OF THE PLACEMENT AGENT. The Placement Agent represents and warrants that it (i) is a member in good standing of FINRA, (ii) is registered
as a broker/dealer under the Exchange Act, (iii) is licensed as a broker/dealer under the laws of the United States of America, applicable
to the offers and sales of the Placement Agent Securities by the Placement Agent, (iv) is and will be a corporate body validly existing
under the laws of its place of incorporation, and (v) has full power and authority to enter into and perform its obligations under this
Agreement. The Placement Agent will immediately notify the Company in writing of any change in its status with respect to subsections
(i) through (v) above. The Placement Agent covenants that it will use its reasonable best efforts to conduct the Placement hereunder in
compliance with the provisions of this Agreement and the requirements of applicable law.


 


SECTION 3. COMPENSATION.
In consideration of the services to be provided for hereunder, the Company shall pay to the Placement Agent and/or its respective designees
a cash fee of 7.0% of the aggregate gross proceeds raised from the sale of the Placement Agent Securities (the “Cash Fee”).
The Cash Fee shall be paid on the Closing Date. The Company shall not be required to pay the Placement Agent any fees or expenses except
for the Cash Fee, and the reimbursement of up to $50,000 in legal expenses and other out-of-pocket expenses; provided, that this sentence
in no way limits or impairs the indemnification or contribution provisions contained herein. In addition, the Company shall issue the
Placement Agent (and/or its designees) on the Closing Date warrants (the “Placement Agent Warrants”) to purchase shares
of Common Stock in an amount equal to 5% of the Shares and shares of Common Stock issuable upon exercise of the Pre-Funded Warrants sold
in the Placement. The Placement Agent Warrants shall be in substantially the form of Common Warrants sold in the Placement, shall be exercisable,
in whole or in part, commencing on a date which is six (6) months after the pricing of the Placement and expiring on the four (4) year
anniversary of the date that the registration statement registering the shares underlying the warrants is declared effective by the Securities
and Exchange Commission, at an initial exercise price per share of Common Stock equal to 110% of the offering price of each Share. The
terms of the Placement Agent Warrants shall comply, in all respects with the requirements of the Financial Industry Regulatory Authority,
Inc. (“FINRA”). The Placement Agent reserves the right to reduce any item of compensation or adjust the terms thereof
as specified herein in the event that a determination shall be made by FINRA to the effect that the Placement Agent’s aggregate
compensation is in excess of FINRA Rules or that the terms thereof require adjustment.


 


SECTION 4. INDEMNIFICATION.


 


A. To the extent permitted
by law, with respect to the Placement Agent Securities, the Company will indemnify the Placement Agent and its affiliates, stockholders,
directors, officers, employees, members and controlling persons (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) against all losses, claims, damages, expenses and liabilities, as the same are incurred (including the reasonable
fees and expenses of counsel), relating to or arising out of its activities hereunder or pursuant to this Agreement, except to the extent
that any losses, claims, damages, expenses or liabilities (or actions in respect thereof) are found in a final judgment (not subject to
appeal) by a court of law to have resulted primarily and directly from the Placement Agent’s fraud, willful misconduct or gross
negligence in performing the services described herein.


 


B. Promptly after receipt
by the Placement Agent of notice of any claim or the commencement of any action or proceeding with respect to which the Placement Agent
is entitled to indemnity hereunder, the Placement Agent will notify the Company in writing of such claim or of the commencement of such
action or proceeding, but failure to so notify the Company shall not relieve the Company from any obligation it may have hereunder, except
and only to the extent such failure results in the forfeiture by the Company of substantial rights and defenses. If the Company so elects
or is requested by the Placement Agent, the Company will assume the defense of such action or proceeding and will employ counsel reasonably
satisfactory to the Placement Agent and will pay the fees and expenses of such counsel. Notwithstanding the preceding sentence, the Placement
Agent will be entitled to employ counsel separate from counsel for the Company and from any other party in such action if counsel for
the Placement Agent reasonably determines that it would be inappropriate under the applicable rules of professional responsibility for
the same counsel to represent both the Company and the Placement Agent. In such event, the reasonable fees and disbursements of no more
than one (1) such separate counsel will be paid by the Company, in addition to fees of local counsel. The Company will have the right
to settle the claim or proceeding provided that the Company will not settle any such claim, action or proceeding without the prior written
consent of the Placement Agent, which will not be unreasonably withheld. The Company shall not be liable for any settlement of any action
effected without its written consent, which will not be unreasonably withheld.


 






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C. The Company agrees to notify
the Placement Agent promptly of the assertion against it or any other person of any claim or the commencement of any action or proceeding
relating to a transaction contemplated by this Agreement.


 


D. If for any reason the foregoing
indemnity is unavailable to the Placement Agent or insufficient to hold the Placement Agent harmless, then the Company shall contribute
to the amount paid or payable by the Placement Agent as a result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Placement Agent on the other,
but also the relative fault of the Company on the one hand and the Placement Agent on the other that resulted in such losses, claims,
damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable by a party in respect of losses,
claims, damages and liabilities referred to above shall be deemed to include any legal or other fees and expenses incurred in defending
any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, the Placement Agent’s share of the liability
hereunder shall not be in excess of the amount of fees actually received, or to be received, by the Placement Agent under this Agreement.


 


E. These indemnification provisions
shall remain in full force and effect whether or not the transaction contemplated by this Agreement is completed and shall survive the
termination of this Agreement, and shall be in addition to any liability that the Company might otherwise have to any indemnified party
under this Agreement or otherwise.


 


SECTION 5. ENGAGEMENT
TERM. The Placement Agent’s engagement hereunder will commence on the date hereof and continue through the Closing Date. The
date of termination of this Agreement is referred to herein as the “Termination Date.” In the event, however, in the
course of the Placement Agent’s performance of due diligence it deems it necessary to terminate the engagement, the Placement Agent
may do so prior to the Termination Date. The Company may elect to terminate the engagement hereunder for any reason prior to the Termination
Date but will remain responsible for fees and expenses pursuant to Section 3 hereof and fees and expenses with respect to the Placement
Agent Securities, if sold in the Placement. Notwithstanding anything to the contrary contained herein, the provisions concerning the Company’s
obligation to pay any fees or expenses actually earned pursuant to Section 3 hereof and the provisions concerning confidentiality, indemnification
and contribution contained herein will survive any expiration or termination of this Agreement. If this Agreement is terminated prior
to the completion of the Placement, all fees or expenses due to the Placement Agent shall be paid by the Company to the Placement Agent
on or before the Termination Date (in the event such fees or expenses are earned or owed as of the Termination Date). The Placement Agent
agrees not to use any confidential information concerning the Company provided to the Placement Agent by the Company for any purposes
other than those contemplated under this Agreement.


  


SECTION 6. PLACEMENT
AGENT INFORMATION. The Company agrees that any information or advice rendered by the Placement Agent in connection with this engagement
is for the confidential use of the Company only in their evaluation of the Placement and, except as otherwise required by law, the Company
will not disclose or otherwise refer to the advice or information in any manner without the Placement Agent’s prior written consent.


 


SECTION 7. NO FIDUCIARY
RELATIONSHIP. This Agreement does not create, and shall not be construed as creating rights enforceable by any person or entity not
a party hereto, except those entitled hereto by virtue of the indemnification provisions hereof. The Company acknowledges and agrees that
the Placement Agent is not and shall not be construed as a fiduciary of the Company and shall have no duties or liabilities to the equity
holders or the creditors of the Company or any other person by virtue of this Agreement or the retention of the Placement Agent hereunder,
all of which are hereby expressly waived.


 


SECTION 8. CLOSING.
The obligations of the Placement Agent, and the closing of the sale of the Placement Agent Securities hereunder are subject to the accuracy,
when made and on the Closing Date, of the representations and warranties on the part of the Company contained herein and in the Purchase
Agreement, to the performance by the Company of its obligations hereunder and in the Purchase Agreement, and to each of the following
additional terms and conditions, except as otherwise disclosed to and acknowledged and waived by the Placement Agent:


 






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A. All corporate proceedings
and other legal matters incident to the authorization, form, execution, delivery and validity of each of this Agreement, the Placement
Agent Securities, and all other legal matters relating to this Agreement and the transactions contemplated hereby with respect to the
Placement Agent Securities shall be reasonably satisfactory in all material respects to the Placement Agent.


 


B. The Placement Agent shall
have received from outside U.S. counsel to the Company each such counsel’s written opinion with respect to the Placement Agent Securities,
addressed to the Placement Agent and dated as of the Closing Date, in form and substance reasonably satisfactory to the Placement Agent.


 


C. The Placement Agent shall
have received the Placement Agent Warrants.


 


D. The Placement Agent shall
have received customary certificates of the Company’s executive officers, as to the accuracy of the representations and warranties
contained in the Purchase Agreement, and a certificate of the Company’s secretary certifying that each of the Company’s charter
documents are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions of the Company’s
Board of Directors relating to the Placement are in full force and effect and have not been modified; and (iii) as to the incumbency of
the officers of the Company.


 


E. The Common Stock shall be
registered under the Exchange Act in accordance with the terms of the Purchase Agreement and, as of the Closing Date, the Shares and the
shares of Common Stock issuable upon exercise of the Warrants shall be listed and admitted and authorized for trading on the Trading Market
or other applicable U.S. national exchange and satisfactory evidence of such action shall have been provided to the Placement Agent. The
Company shall have taken no action designed to, or likely to have the effect of terminating the registration of the Common Stock under
the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market or other applicable U.S. national exchange,
nor has the Company received any information suggesting that the Commission or the Trading Market or other U.S. applicable national exchange
is contemplating terminating such registration or listing. 


 


F. No action shall have been
taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would,
as of the Closing Date, prevent the issuance or sale of the Placement Agent Securities or materially and adversely affect or potentially
and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any
federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale
of the Placement Agent Securities or materially and adversely affect or potentially and adversely affect the business or operations of
the Company.


 


G. The Company shall have entered
into a Purchase Agreement with the Purchaser of the Placement Agent Securities and such agreement shall be in full force and effect and
shall contain representations, warranties and covenants of the Company as agreed upon between the Company and the Purchaser.


 


H. FINRA shall have raised no
objection to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition, the Company shall, if requested
by the Placement Agent, make or authorize Placement Agent’s counsel to make on the Company’s behalf, any filing with the FINRA
Corporate Financing Department pursuant to FINRA Rules 5110 and 5190 with respect to the Placement and pay all filing fees required in
connection therewith.


 


If any of the conditions specified
in this Section 8 shall not have been fulfilled when and as required by this Agreement, all obligations of the Placement Agent hereunder
may be cancelled by the Placement Agent at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the
Company in writing or orally. Any such oral notice shall be confirmed promptly thereafter in writing.


 






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SECTION 9. GOVERNING
LAW. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements
made and to be performed entirely in such State, without regard to its conflict of laws principles. This Agreement may not be assigned
by either party without the prior written consent of the other party. This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and permitted assigns. Any right to trial by jury with respect to any dispute arising
under this Agreement or any transaction or conduct in connection herewith is waived. Any dispute arising under this Agreement may be brought
into the courts of the State of New York or into the Federal Court located in New York, New York and, by execution and delivery of this
Agreement, the Company hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of aforesaid
courts. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such suit,
action or proceeding by delivering a copy thereof via overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. If either
party shall commence an action or proceeding to enforce any provisions of this Agreement, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.


 


SECTION 10. ENTIRE
AGREEMENT/MISCELLANEOUS. This Agreement embodies the entire agreement and understanding between the parties hereto, and supersedes
all prior agreements and understandings, relating to the subject matter hereof. If any provision of this Agreement is determined to be
invalid or unenforceable in any respect, such determination will not affect such provision in any other respect or any other provision
of this Agreement, which will remain in full force and effect. This Agreement may not be amended or otherwise modified or waived except
by an instrument in writing signed by both the Placement Agent and the Company. The representations, warranties, agreements and covenants
contained herein shall survive the Closing Dates of the Placement and delivery of the Placement Agent Securities. This Agreement may be
executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need
not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or a .pdf format file, such signature
shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or .pdf signature page were an original thereof.


  


SECTION 12. NOTICES.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is sent to the email address
specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a business day, (b) the next business day
after the date of transmission, if such notice or communication is sent to the email address on the signature pages attached hereto on
a day that is not a business day or later than 6:30 p.m. (New York City time) on any business day, (c) the third business day following
the date of mailing, if sent by U.S. internationally recognized air courier service, or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages hereto.


 


SECTION 13. Press
Announcements. The Company agrees that the Placement Agent shall, on and after the Closing Date, have the right to reference
the Placement and the Placement Agent’s role in connection therewith in the Placement Agent’s marketing materials and on its
website and to place advertisements in financial and other newspapers and journals, in each case at its own expense.


 


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Please confirm that the foregoing
correctly sets forth our agreement by signing and returning to the Placement Agent the enclosed copy of this Agreement.


 


	 	Very truly yours,
	 	 	 
	 	A.G.P./ALLIANCE GLOBAL PARTNERS
	 	 	 
	 	By:  	/s/ Thomas J. Higgins
	 	Name:	Thomas J. Higgins
	 	Title:	Managing Director


 





	 	Address for notice
	 	590 Madison Avenue 28th Floor
	 	New York, New York 10022
	 	Attn: Thomas J. Higgins
	 	Email: thiggins@allianceg.com  






 


Accepted and Agreed to as of


the date first written above:


 


	ShiftPixy, Inc.	 
	 	 	 
	By: 	/s/ Scott W. Absher	 
	Name:	Scott W. Absher	 
	Title:	Chief Executive Officer	 


 


Address for notice:


501 Brickell Key Drive, Suite 300


Miami, Florida, 33131


Scott.absher@shiftpixy.com


 


[Signature Page to Placement
Agency Agreement.]


 






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