United States securities and exchange commission logo





                              January 21, 2022

       Robert E. Ainbinder, Jr.
       Chief Executive Officer
       NYIAX, INC.
       180 Maiden Lane, 11th Floor
       New York, NY 10005

                                                        Re: NYIAX, INC.
                                                            Draft Registration
Statement on Form S-1
                                                            Submitted December
23, 2021
                                                            CIK No. 0001679379

       Dear Mr. Ainbinder:

              We have reviewed your draft registration statement and have the
following comments. In
       some of our comments, we may ask you to provide us with information so
we may better
       understand your disclosure.

              Please respond to this letter by providing the requested
information and either submitting
       an amended draft registration statement or publicly filing your
registration statement on
       EDGAR. If you do not believe our comments apply to your facts and
circumstances or do not
       believe an amendment is appropriate, please tell us why in your
response.

             After reviewing the information you provide in response to these
comments and your
       amended draft registration statement or filed registration statement, we
may have additional
       comments.

       Draft Registration Statement on Form S-1

       Cover Page

   1.                                                   Please revise your
cover page to state that there is no public market for your common
                                                        stock prior to this
offering. Additionally, state that you have applied to list your common
                                                        stock on Nasdaq Stock
Market and that there is no guarantee that Nasdaq, or any other
                                                        exchange or quotation
system, will permit your common stock to be listed and traded.
                                                        Lastly, please revise
to clarify whether the offering is contingent upon receiving Nasdaq
                                                        listing approval.
 Robert E. Ainbinder, Jr.
FirstName  LastNameRobert E. Ainbinder, Jr.
NYIAX, INC.
Comapany
January 21,NameNYIAX,
            2022         INC.
January
Page 2 21, 2022 Page 2
FirstName LastName
Risk Factors
We may be subject to litigation from time to time..., page 10

2.       You state here that you may become subject to litigation that may
result in liability
         material to your financial statements as a whole or may negatively
affect your operating
         results if changes to your business operations are required. Please
tell us whether you are
         currently subject to any material pending legal proceedings, and if
so, revise your business
         section to provide disclosure responsive to Item 103 of Regulation
S-K.
Management's Discussion and Analysis of Financial Condition and Results of
Operations, page
22

3.       On page 22, you state that you began monetizing your platform in April
2021. On page
         25, you state that in "2020 and 2019, to entice Publishers and
Advertising Agencies to use
         the NYIAX platform, the Exchange Fee rates were reduced as the Company
commenced
         scaling its platform." Please reconcile these disclosures and provide
a clear description of
         the current status of your platform.
4.       You state that your platform connects media buyers and media sellers
and that you receive
         an exchange fee for all advertising transactions processed on your
platform. Please revise
         to clearly and consistently describe whether you enter into agreements
with both media
         buyers and media sellers, whether you consider both media buyers and
media sellers to be
         your customers and whether you receive fees from both media buyers and
media sellers.
Status, page 22

5.       In light of your significant operating losses and negative cash flows
from
         operating activities, please discuss in reasonable detail your plans
for achieving
         profitability and positive cash flows from operating activities in the
future. Your
         discussion should address the likelihood and anticipated timing of
your plans and
         assumptions coming to fruition. Please refer to Item 303 of Regulation
S-K.
Seasonality, page 24

6.       Your presentation of operating expenses excluding share based
compensation and
         amortization and depreciation represents a non-GAAP measure. Please
revise to either
         remove all references to this measure from your filing or revise all
references to this
         measure to include the non-GAAP disclosures required by Item 10(e) of
Regulation S-K.
         As a related matter, if you choose to retain this disclosure, please
revise to provide an
         appropriate sub-title here and on page 27 that separates the
disclosure of the non-GAAP
         measure from the preceding discussion on the same pages.
Results of Operations, page 25

7.       Please revise the name of your "operating profit" line item both here
and on page 28 to
         reflect that the amounts presented for all periods are operating
losses.
 Robert E. Ainbinder, Jr.
FirstName  LastNameRobert E. Ainbinder, Jr.
NYIAX, INC.
Comapany
January 21,NameNYIAX,
            2022         INC.
January
Page 3 21, 2022 Page 3
FirstName LastName
8.       Please revise your discussion of revenue to more fully describe the
specific reasons for the
         increase in revenue. To the extent possible, please quantify how
increases in price and/or
         volume affected the increase in revenues. Please refer to Item
303(b)(2)(iii) of Regulation
         S-K.
Techology and Development, page 26

9.       Please revise to more fully describe the nature of your technology and
development costs.
         Please similarly revise the disclosures in your financial statement
footnotes on page F-27.
Cash Flows, page 29

10.      Please revise to also provide a discussion of changes in financial
condition and cash flows
         for the years ended December 31, 2019 and 2020. Please refer to Item
303(b) of
         Regulation S-K.
11.      Please revise your discussion of operating activities to address the
more specific factors
         that caused the increase in negative operating cash flows. For
example, we note material
         changes in net losses, share based compensation, debt discount
amortization and financing
         costs all impacting the change in operating cash flows for the nine
months ended
         September 30, 2020 compared to the nine months ended September 30,
2021.
Liquidity and Capital Resources, page 29

12.      Please expand your disclosure to include your estimated cash
requirements over the
         next twelve months. Please refer to Item 303(b)(1) of Regulation S-K.
Other
NYIAX Platform and Nasdaq, page 33

13.      You disclose that you are obligated to pay Nasdaq an annual license
fee and have
         a revenue sharing agreement with Nasdaq. Please revise here to
disclose the amount of
         the annual license fee and how the revenue sharing is calculated.
Business
Our Clients, page 45

14.      Please revise to disclose your current number of customers.
Additionally, we note that
         that three customers accounted for 48%, 27% and 14% of your revenue
for the 9 months
         ended September 30, 2021. Please revise to identify these customers,
summarize the
         terms of your material agreements with these customers, including term
and termination
         provisions, and file these agreements as exhibits. Lastly, include a
risk factor discussing
         risks related to the fact that you generate substantially all of your
revenue from a small
         number of customers.
15.      You state that as of December 3, 2021, your platform had over 1,970
active sell orders
         with a total market value of nearly $1.4 billion and that your
marketplace provides buyers
 Robert E. Ainbinder, Jr.
FirstName  LastNameRobert E. Ainbinder, Jr.
NYIAX, INC.
Comapany
January 21,NameNYIAX,
            2022         INC.
January
Page 4 21, 2022 Page 4
FirstName LastName
         with direct access to over 115 billion impressions. Please revise to
define active sell
         order, explain how you calculate total market value, and provide these
metrics as of the
         end of each financial period included in your financial statements.
NYIAX Blockchain Implementation, page 45

16.      Disclosure on page 45 suggests that the blockchain you use is
currently a private network
         and that it may evolve into a public, decentralized network. Please
revise to provide a
         detailed description of the blockchain, including identification of
the operator,
         clarification as to whether the network is private, and your plans in
regards to moving
         towards a public, decentralized network. Additionally, include a risk
factor discussing
         material risks and challenges related to your reliance on a
third-party blockchain. Lastly,
         to the extent you intend to migrate the platform to a decentralized
network, please include
         a risk factor discussing risks relating to any such migration,
including your ability to
         operate the platform, exercise control over key aspects of it, and
monetize it.
Potential Futures Industry Governmental Regulation, page 48

17.      You note that your business may be subject to various CFTC and SEC
regulations. Please
         revise this section to specifically identify the regulations that are
or may be applicable to
         your business and discuss the consequences to your business should you
be subject to
         these regulations.
18.      You state here that you have not obtained any opinion of counsel or
ruling that you are
         correct in your analysis of the regulatory oversight that you may be
subject to. As this
         statement may imply an inappropriate disclaimer of responsibility with
respect to such
         information, please either delete this statement or specifically state
that you are liable for
         the information in this section.
Executive and Director Compensation
Summary Compensation Table, page 56

19.      Please revise to provide executive compensation disclosure for the
fiscal year ended
         December 31, 2021.
Certain Relationships and Related Party Transactions, page 68

20.      You do not disclose any related party transactions here. Please
confirm that you were not
         a party to any transactions for which Item 404 of Regulation S-K
requires disclosure, or
         revise.
Note 2. Basis of Presentation and Summary of Significant Accounting Policies,
page F-23

21.      You disclose on page 44 that you support intermediary buyers acting as
liquidity
         providers. Please revise to clarify what is meant by this statement
and explain more fully
         how you provide this support. As appropriate, please also revise your
financial statement
         footnotes to disclose how you account for these services.
 Robert E. Ainbinder, Jr.
FirstName  LastNameRobert E. Ainbinder, Jr.
NYIAX, INC.
Comapany
January 21,NameNYIAX,
            2022         INC.
January
Page 5 21, 2022 Page 5
FirstName LastName
Revenue Recognition, page F-25

22.      Please revise to clarify the identity of your customers and specify
the nature of
         the performance obligations within your contractual arrangements with
customers. Please
         clarify if you consider both Media Buyers and Media Sellers to be your
customers and
         why or why not. Please also disclose how you determine the fees or
commissions charged
         to your customers.
Note 3. Licensing Fee, page F-30

23.      In light of your revenue sharing agreement with Nasdaq, please clarify
the role of
         Nasdaq in your revenue arrangements, including relevant terms and
conditions. Please
         also revise to explain how you account for the annual license fee and
revenue sharing
         agreements.
General

24.      On page 2, you state that your platform provides a marketplace where
advertising or
         audience campaigns are listed, bought, sold, and re-traded as if they
were a financial
         instrument through a forward or a future contract methodology. Please
provide a detailed
         description of the derivative instruments that are currently created
and traded through your
         platform, including an explanation of why these instruments are
structured as forward or
         future contracts and clarification of whether the instruments may be
traded outside of your
         platform.
25.      On page 48, you note that your business may be subject to regulation
and supervision by
         the CFTC if the assets traded on your platform are determined to be
commodities under
         the Commodity Exchange Act. Please clarify whether you have consulted
with the CFTC
         on whether you are subject to CFTC regulation and provide a detailed
legal analysis of
         whether the instruments traded on your platform are subject to
regulation under the
         Commodity Exchange Act.
26.      Please also provide a detailed legal analysis of whether the
instruments traded on your
         platform are securities under the Securities Act of 1933. Consider SEC
v. W.J. Howey
         Co., 328 U.S. 293 (1946) and Gary Plastic Packaging Corp. v. Merrill
Lynch, Pierce
         Fenner & Smith, 756 F.2d 230 (2d Cir. 1985).
27.      Additionally, we note your disclosure that your business may be
subject to SEC regulation
         and compliance requirements with respect to trading activities and
market operations.
         Please revise to describe the SEC regulations this statement
references and provide a
         detailed legal analysis of whether you are currently subject to these
regulations.
28.      On page 46, you state that you intend to extend your financial trading
platform beyond
         advertising and media and include other types of complex asset classes
on your platform.
         Please provide a complete description of these future plans, including
a description of the
         other types of complex assets classes and the status of your
developmental efforts to
 Robert E. Ainbinder, Jr.
NYIAX, INC.
January 21, 2022
Page 6
       extend your platform to these assets classes.
29.    Please supplementally provide us with copies of all written
communications, as defined in
       Rule 405 under the Securities Act, that you, or anyone authorized to do
so on your behalf,
       present to potential investors in reliance on Section 5(d) of the
Securities Act, whether or
       not they retain copies of the communications.
       You may contact Joseph Cascarano, Senior Staff Accountant, at (202)
551-3376 or Lisa
Etheredge, Senior Staff Accountant, at (202) 551-3424 if you have questions
regarding
comments on the financial statements and related matters. Please contact Kyle
Wiley, Staff
Attorney, at (202) 551-6001 or Mitchell Austin, Staff Attorney, at (202)
551-3574 with any other
questions.



                                                             Sincerely,
FirstName LastNameRobert E. Ainbinder, Jr.
                                                             Division of
Corporation Finance
Comapany NameNYIAX, INC.
                                                             Office of
Technology
January 21, 2022 Page 6
cc:       Mitchell Lampert
FirstName LastName