Exhibit 10.1
Exhibit A
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION
AGREEMENT (“Subscription Agreement”) made as of this ____ day of ______, 2024, by and between Nyiax, Inc., a Delaware
Corporation (the “Company”), and [_____________________________________] having an address of [______________________]
(the “Subscriber”). Company and Subscriber may be collectively referred to for purposes of this Subscription
Agreement as the “Parties.”
RECITALS
WHEREAS, the Company intends
to offer (the “Offering”) for sale up to $1,200,000 of its Units which may be increased to $2,000,000 by the Company
(the “Offering Amount”), with each Unit consisting of (i) a 10% unsecured convertible promissory note (each, a “Note”);
and (ii) such number of common stock purchase warrants (the “Warrants”) as shall be equal to fifty thousand (50,000)
Warrants for each $100,000 principal amount of Notes subscribed for in this Offering (the Notes collectively with the Warrants are referred
to herein as the “Units”). The Notes and the Warrants are substantially in the form attached hereto as Exhibit A
and Exhibit B, respectively and are being offered in reliance upon the exemption from registration provided for under Section 4(a)(2)
of the Securities Act of 1933, as amended (the “Securities Act”) and Rule 506(b) of Regulation D promulgated thereunder
(“Regulation D”), the terms and conditions hereinafter set forth.
WHEREAS, the Subscriber desires
to acquire certain Units.
NOW, THEREFORE, for and in
consideration of the promises and the mutual covenants hereinafter set forth, the parties hereto do hereby agree as follows:
AGREEMENT
1. Subscription
Procedure; Notes and Warrants
1.1 Subscription
for Units. Subject to the terms and conditions hereinafter set forth, the Subscriber hereby subscribes for and agrees to purchase
from the Company the principal amount of Units, with the Notes and the Warrants substantially in the form attached hereto as Exhibit A
and Exhibit B, respectively, as is set forth upon the signature page hereof. The Notes in the Units shall bear interest at a rate of ten
percent (10.0%) per annum, on a non-compounding basis, and are due and payable on the earlier of (i) the date upon which the Units are
converted into equity securities as set forth herein, or (ii) or twenty-four months from the closing of this Offering (the “Maturity
Date”). All interest due shall be paid in shares of the Company’s common stock, which shall be valued at $2.00 per share
for purposes of the interest computation. The Warrants shall be exercisable into shares of common stock for a period of five (5) years
from the closing of the Offering at a price of at $2.00 per share and. The Units will be offered and sold by the Company solely to “accredited
investors” (as defined under Rule 501 of Regulation D of the Securities Act of 1933, as amended).
1.2
Subscription Period. The subscription period will begin as of the date of the first sale of the Offering and will terminate on
the date which is earliest to occur of (i) April 30th, 2024, unless extended at the option of the Company without notice to Investors
in its sole discretion for a period of up to sixty business (60) days; or (ii) the closing date of the Financing Event (as hereinafter
defined) (the “Termination Date”). The Units will be offered on a “best efforts $2,000,000 maximum” basis. The
minimum investment per subscription of the Offering is $25,000, subject to the Company’s right to accept a lesser amount.
1.3 Automatic
Conversion. In the event the Company undergoes a Financing Event (as hereinafter defined) on or before the Maturity Date, then the
outstanding principal balance of the Note and all accrued interest shall be automatically converted into such securities (“Securities”)
under the same terms and conditions as those Securities in the Financing Event. The “Conversion Price” of the Securities will
be at a price equal to the following: The lower of (i) 85% of the price per share paid by the purchasers of Securities in the Financing
Event or (ii) $2.00, but in no event less than $1.50. A “Financing Event” shall be completion of subsequent financings where
the Company raises cumulative gross proceeds of at least $1,500,000. In no event shall the Company issue fractional shares; all fractional
shares shall be rounded up to the next whole share. In the event the Financing Event is not completed within twenty-four (24) months from
the final closing of this Offering, this Note shall automatically be converted into common stock of the Company at $2.00 per share on
the Maturity Date.
1.4 Registration
Rights. If, at any time within eighteen (18) months of the closing of this Offering, the Company proposes to file a registration statement
under the Securities Act with respect to an offering by the Company of its Common Stock (other than a registration (i) pursuant to a registration
statement on Form S-8 (or other registration solely relating to an offering or sale to employees or directors of the Company pursuant
to any employee stock plan or other employee benefit arrangement), (ii) pursuant to a registration statement on Form S-4 (or similar form
that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), or (iii) in connection with
any dividend or distribution reinvestment or similar plan), then the Company shall give written notice (each, a “Company Piggy-Back
Notice”) of such proposed filing to each holder at least ten (10) days before the anticipated filing date of such registration
statement, and such Company Piggy-Back Notice also shall be required to offer to such rightsholders the opportunity to register such aggregate
number of shares of common stock issuable upon conversion of the Notes (the “Note Shares”) and exercise of the Warrants
(the “Warrant Shares”) as the Holder may request. The Holder shall have the right, exercisable for the five (5) days
immediately following the giving of a Company Piggy-Back Notice, to request, by written notice (the “Holder Notice”)
to the Company, the inclusion of all or any portion of the Note Shares and Warrant Shares of the Holder in such registration statement.
Notwithstanding
anything contained herein to the contrary, the Company shall have the absolute right, whether before or after the giving of a Company
Piggy-Back Notice or Holder Notice, to determine not to file a registration statement to which the Holder shall have the right to include
its Note Shares and Warrant Shares therein, to withdraw such registration statement or to delay or suspend pursuing the effectiveness
of such registration statement. In the event of such a determination after the giving of a Company Piggy-Back Notice, the Company shall
give notice of such determination to the Holder and other persons which carry registration rights granted herein and, thereupon, (A) in
the case of a determination not to register or to withdraw such registration statement, the Company shall be relieved of its obligation
hereunder to register any of the Note Shares or Warrant Shares in connection with such registration and (B) in the case of a determination
to delay the registration, the Company shall be permitted to delay or suspend the registration of the Note Shares and Warrant Shares for
the same period as the delay in the registration of such other securities.
1.5 Rejection
of Orders. The Subscriber understands and agrees that the Company reserves the right to reject any subscription, in whole or in part.
The Company may, in its sole discretion, terminate or withdraw the Offering in its entirety at any time prior to a closing in relation
thereto. If this subscription is rejected in whole or the Offering is terminated, all funds received from the Subscriber will be returned
without interest or offset, and this Subscription Agreement shall thereafter be of no further force or effect. If this subscription is
rejected in part, the funds for the rejected portion of this subscription will be returned without interest or offset, and this Subscription
Agreement will continue in full force and effect to the extent this subscription was accepted.
2. Representations
and Covenants of Subscriber
The Subscriber represents and warrants
to the Company that:
2.1 The
Subscriber recognizes that the purchase of the Units involves a high degree of risk in that (i) the Company may need additional capital
to operate its business but has no assurance of additional necessary capital; (ii) an investment in the Company is highly speculative
and only investors who can afford the loss of their entire investment should consider investing in the Units; (iii) an investor may not
be able to liquidate his, her or its investment in the Units; (iv) transferability of the Units is extremely limited; (v) an investor
could sustain the loss of his, her or its entire investment; and (vi) the Company is and will be subject to numerous other risks and uncertainties,
including without limitation, significant and material risks relating to the Company’s business and operations, and the industries,
markets and geographic regions in which the Company competes, as well as risks associated with the Offering, all as more fully set forth
herein and in the Risk Factors annexed hereto as Exhibit C, the terms of which have been reviewed and accepted by the Subscriber.
2.2 The
Subscriber represents that he, she or it is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated
under the Securities Act, as indicated by his, her or its Investor Questionnaire, and that he, she or it is able to bear the economic
risk of an investment in the Units. The Subscriber has adequate means of providing for such Subscriber’s current financial needs and foreseeable
contingencies and has no need for liquidity of his, her, or its investment in the Units for an indefinite period of time. The Subscriber
must complete the applicable Investor Questionnaire, a form of which is attached hereto as Appendix I, to enable the Company to
assess the Subscriber’s eligibility for the Offering.
2.3 The
Subscriber represents that all information which the Subscriber has provided to the Company concerning the Subscriber or the Subscriber’s
investor status, financial position, knowledge and experience in financial and business matters, or, in the case of a corporation, trust,
partnership, limited liability company, or other entity, the knowledge and experience in financial and business matters of the person
making the investment decision on behalf of such entity, including all information contained herein, is correct and complete as of the
date of this Agreement, and if there should be any adverse change in such information prior to this subscription being accepted, the Subscriber
will immediately provide the Company with such information.
2.4 The
Subscriber acknowledges that he, she or it has such knowledge and prior investment experience, including without limitation, investment
in private, non-listed and non-registered securities and development-stage companies with limited operating histories, or he, she or it
has employed the services of an investment advisor, attorney or accountant to read all of the documents furnished or made available by
the Company both to him, her or it and to all other prospective investors in the Offering and to evaluate the merits and risks of such
an investment on his, her or its behalf, and that he, she or it recognizes the highly speculative nature of this investment.
2.5 The
Subscriber acknowledges receipt and careful review of the risk factors annexed hereto as Exhibit C, and the attachments (Exhibits A and
B) hereto (collectively, the “Offering Documents”) and hereby represents that he, she or it has been furnished or given
access by the Company during the course of the Offering with or to all information regarding the Company and its financial conditions
and results of operations which he, she or it had requested or desired to know; that all documents which could be reasonably provided
have been made available for his, her or its inspection and review; that he, she or it has been afforded the opportunity to ask questions
of and receive answers from duly authorized representatives of the Company concerning the terms and conditions of the Offering, and any
additional information which he, she or it had requested. The Subscriber further represents and acknowledges that the Subscriber has not
seen or received any advertisement or general solicitation with respect to the sale of any of the securities of the Company, including,
without limitation, the Units.
2.6 The
Subscriber acknowledges that the Offering of the Units may involve tax consequences, and that the contents of the Offering Documents do
not contain tax advice or information. The Subscriber acknowledges that he, she or it must retain his, her or its own professional advisors
to evaluate the tax and other consequences of an investment in the Units.
2.7 The
Subscriber acknowledges that the Offering of the Units has not been reviewed or approved by the United States Securities and Exchange
Commission (“SEC”) because the Offering is intended to be a nonpublic offering pursuant to Section 4(a)(2) of the Securities
Act and/or Rule 506(b) of Regulation D promulgated thereunder. The Subscriber represents that the Units are being purchased for his, her
or its own account, for investment and not for distribution or resale to others. The Subscriber agrees that he, she or it will not sell
or otherwise transfer any of the Units or common stock issuable upon conversion of the Notes or exercise of the Warrants unless they are
registered under the Securities Act or unless an exemption from such registration is available and, upon the Company’s request,
the Company receives an opinion of counsel reasonably satisfactory to the Company confirming that an exemption from such registration
is available for such sale or transfer.
2.8 The
Subscriber understands that the Units have not been registered under the Securities Act by reason of a claimed exemption under the provisions
of the Securities Act which depends, in part, upon his, her or its investment intention. The Subscriber realizes that, in the view of
the SEC, a purchase now with the intention to distribute would represent a purchase with an intention inconsistent with his, her or its
representation to the Company, and the SEC might regard such a distribution as a deferred sale to which such exemption is not available.
The Subscriber understands that there is no assurance that the Company will effect a Financing Event or any public listing of its securities.
2.9 The
Subscriber understands that Rule 144 (the “Rule”) promulgated under the Securities Act requires, among other conditions,
a one (1) year holding period prior to the resale of securities acquired in a non-public offering, such as the Offering, without having
to satisfy the registration requirements under the Securities Act. The Subscriber understands that the Company makes no representation
or warranty regarding its fulfillment in the future of any reporting requirements under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), or its dissemination to the public of any current financial or other information concerning the
Company, as is required by Rule 144 as one of the conditions of its availability. The Subscriber consents that the Company may, if it
desires, permit the transfer of the Units out of his, her or its name only when his, her or its request for transfer is accompanied by
an opinion of counsel reasonably satisfactory to the Company that neither the sale nor the proposed transfer results in a violation of
the Securities Act, any applicable state “blue sky” laws or any applicable securities laws of any other country, province
or jurisdiction (collectively, “Securities Laws”). The Subscriber agrees to hold the Company and its directors, officers
and controlling persons and their respective heirs, representatives, successors and assigns harmless and to indemnify them against all
liabilities, costs and expenses incurred by them as a result of any misrepresentation made by him/her/it contained herein or in the Investor
Questionnaire or any sale or distribution by the undersigned Subscriber in violation of any Securities Laws.
2.10 The
Subscriber acknowledges and consents to the placement of one or more legends on any certificate or other document evidencing his, her
or its Notes, Warrants, Units or shares of common stock issuable upon conversion of the Notes or exercise of the Warrants, stating that
they have not been registered under the Securities Act, substantially in the form as set forth below and setting forth or referring to
the restrictions on the transferability and sale thereof:
THESE SECURITIES REPRESENTED
HEREBY OR THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
2.11 The
Subscriber understands that the Company will review this Subscription Agreement and the Investor Questionnaire and agrees that the Company
reserves the unrestricted right to reject or limit any subscription and to close the Offering pursuant to the terms of the Offering Documents.
2.12 The
Subscriber hereby represents that the address of the Subscriber furnished by him, her or it at the signature page of this Subscription
Agreement and in the Investor Questionnaire is the Subscriber’s principal residence if the Subscriber is an individual or its principal
business address if the Subscriber is a corporation or other entity.
2.13 The
Subscriber acknowledges that if the Subscriber is a Registered Representative of a Financial Industry Regulatory Authority (“FINRA”)
member firm, the Subscriber must give such firm the notice required by the FINRA Conduct Rules, or any applicable successor rules of the
FINRA, receipt of which must be acknowledged by such firm on the signature page hereof. The Subscriber shall also notify the Company if
the Subscriber or any affiliate of Subscriber is a registered broker-dealer with the SEC, in which case the Subscriber represents that
the Subscriber is purchasing the Units in the ordinary course of business and, at the time of purchase of the Units, has no agreements
or understandings, directly or indirectly, with any person to distribute the Units or any portion thereof.
2.14 The
Subscriber hereby represents that, except as set forth in the Offering Documents, no representations or warranties have been made to the
Subscriber by either the Company or its agents, employees or affiliates and in entering into this transaction, the Subscriber is not relying
on any information, other than that contained in the Offering Documents and the results of independent investigation by the Subscriber.
2.15 The
Subscriber agrees that he, she or it will purchase the Units in the Offering only if his, her or its intent at such time is to make such
purchase for investment purposes and not with a view toward resale.
2.16 If
the Subscriber is a partnership, corporation, trust or other entity, such partnership, corporation, trust or other entity further represents
and warrants that: (i) it was not formed for the purpose of investing in the Company; (ii) it is authorized and otherwise duly qualified
to purchase and hold the Units; and (iii) that this Subscription Agreement has been duly and validly authorized, executed and delivered
and constitutes the legal, binding and enforceable obligation of the Subscriber.
2.17 If
the Subscriber is not a United States person, such Subscriber hereby represents that he, she or it has satisfied himself/herself/itself
as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Units or any use of this
Subscription Agreement, including (i) the legal requirements within his/her/its jurisdiction for the purchase of the Units, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the
income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale or transfer of the Units.
Such Subscriber’s subscription and payment for, and his, her or its continued beneficial ownership of the Units, will not violate
any applicable securities or other laws of the Subscriber’s jurisdiction.
2.18 The
Subscriber acknowledges that (i) the Offering Documents contain material, non-public information concerning the Company, and (ii) the
Subscriber is obtaining such material, non-public information solely for the purpose of considering whether to purchase the Units pursuant
to a private placement that is exempt from registration under the Act. The Subscriber agrees to keep such information confidential and
not to disclose it to any other person or entity except the Subscriber’s legal counsel, advisors and other representatives who have
agreed (i) to keep such information confidential, (ii) to use such information only for the purpose set forth above, and (iii) to comply
with applicable securities laws with respect to such information.
2.19 The
Subscriber agrees to indemnify and hold harmless the Company and its officers, directors, employees and affiliates and each other person,
if any, who controls any of the foregoing, against any loss, liability, claim, damage and expense whatsoever (including, but not limited
to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened
or any claim whatsoever) arising out of or based upon any false representation or warranty by the Subscriber, or the Subscriber’s
breach of, or failure to comply with, any covenant or agreement made by the Subscriber herein or in any other document furnished by the
Subscriber to the Company or its respective officers, directors, employees or affiliates or each other person, if any, who controls any
of the foregoing in connection with this transaction.
2.20 The
Subscriber understands and acknowledges that (i) the Units are being offered and sold to the Subscriber without registration under
the Securities Act in a private placement that is exempt pursuant to Section 4(a)(2) of the Securities Act and/or Rule 506(b) of Regulation
D promulgated thereunder; and (ii) the availability of such exemption depends in part on, and that the Company will rely upon the
accuracy and truthfulness of, the foregoing representations made by the Subscriber, and such Subscriber hereby consents to such reliance.
2.21 The
Subscriber understands and acknowledges that he, she or it will at all times be in compliance with any and all state and federal securities
and other laws, statutes and regulations regarding his, her or its ownership and/or any sale, transfer or hypothecation of the Units including
but not limited to those rules and regulations promulgated by the SEC, FINRA and any exchange on which the Company’s securities
are listed, if applicable, and those of federal and state governments and other agencies such as improper short selling of the Company’s
securities and failure to properly file all documents required by the SEC or otherwise, to the extent such rules and regulations are applicable
to the Company’s common stock and/or the Units.
2.22 The
Subscriber understands and agrees that an investment in the Units involves special risks, and the undersigned understands those risks
(including without limitation the risks set forth in the Offering Documents), and the Subscriber is expressly assuming such risks. The
Subscriber acknowledges and is aware that the Units are speculative investments which involve a high degree of risk of loss by the Subscriber
of his, her or its entire investment in the Company. The Subscriber agrees and acknowledges that it is the Subscriber’s sole responsibility
to conduct a “due diligence” investigation of the Company and the financial prospects of the Company. The Subscriber has not
relied on the Company for due diligence or suitability or investment recommendations.
2.23 The
Subscriber should check the Office of Foreign Assets Control (“OFAC”) website at http://www.treas.gov/ofac before making
the following representations.
(a) The Subscriber
represents that the amounts invested by him, her or it in the Company in the Offering were not and are not directly or indirectly derived
from activities that contravene federal, state or international laws and regulations, including anti-money laundering laws and regulations.
Federal regulations and Executive Orders administered by OFAC prohibit, among other things, the engagement in transactions with, and the
provision of services to, certain foreign countries, territories, entities and individuals. The lists of OFAC prohibited countries, territories,
persons and entities can be found on the OFAC website at http://www.treas.gov/ofac. In addition, the programs administered by OFAC (the
“OFAC Programs”) prohibit dealing with individuals1
or entities in certain countries regardless of whether such individuals or entities appear on the OFAC lists.
(b)
To the best of the Subscriber’s knowledge, none of: (1) the Subscriber; (2) any person controlling or controlled by the Subscriber;
(3) if the Subscriber is a privately-held entity, any person having a beneficial interest in the Subscriber; or (4) any person for whom
the Subscriber is acting as agent or nominee in connection with this investment is a country, territory, individual or entity named on
an OFAC list, or a person or entity prohibited under the OFAC Programs. The Subscriber understands that the Company may not accept any
amounts from a prospective investor if such prospective investor cannot make the representation set forth in the preceding paragraph.
The Subscriber agrees to promptly notify the Company should the Subscriber become aware of any change in the information set forth in
these representations. The Subscriber understands and acknowledges that, by law, the Company may be obligated to “freeze the account”
of the Subscriber, either by prohibiting additional subscriptions from the Subscriber, declining any redemption requests and/or segregating
the assets in the account in compliance with governmental regulations, and may also be required to report such action and to disclose
the Subscriber’s identity to OFAC. The Subscriber further acknowledges that the Company may, by written notice to the Subscriber,
suspend the redemption rights, if any, of the Subscriber if the Company reasonably deems it necessary to do so to comply with anti-money
laundering regulations applicable to the Company or any of the Company’s other service providers. These individuals include specially
designated nationals, specially designated narcotics traffickers and other parties subject to OFAC sanctions and embargo programs.
| 1 | These individuals include specially designated nationals,
specially designated narcotics traffickers and other parties subject to OFAC sanctions and embargo programs. |
(c)
To the best of the Subscriber’s knowledge, none of: (1) the Subscriber; (2) any person controlling or controlled by the Subscriber;
(3) if the Subscriber is a privately-held entity, any person having a beneficial interest in the Subscriber; or (4) any person for whom
the Subscriber is acting as agent or nominee in connection with this investment is a senior foreign political figure,2
or any immediate family3 member or close associate4
of a senior foreign political figure, as such terms are defined in the footnotes below.
3. Representations
and Covenants by the Company
The Company represents and warrants
to the Subscriber that:
3.1 Organization
and Authority. The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this
Subscription Agreement and the Offering Documents being executed and delivered by it in connection herewith, and to consummate the transactions
contemplated hereby and thereby.
3.2 Authorization.
The Offering Documents have been duly and validly authorized by the Company. This Subscription Agreement, assuming due execution and delivery
by the Subscriber, when the Subscription Agreement is executed and delivered by the Company, will be, valid and binding obligations of
the Company, enforceable in accordance with their respective terms, except as the enforceability hereof and thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’
rights generally and general principles of equity, regardless of whether enforcement is considered in a proceeding in equity or at law.
3.3 Non-Contravention.
The execution and delivery of the Offering Documents by the Company and the issuance of the Units as contemplated by the Offering Documents
do not and will not, with or without the giving of notice or the lapse of time, or both, (i) result in any violation of any provision
of the articles of incorporation or by-laws or similar instruments of the Company or its subsidiaries, (ii) violate or contravene any
applicable law, rule or regulation or any applicable decree, judgment or order of any court, United States federal or state regulatory
body, administrative agency or other governmental body having jurisdiction over the Company or any of its subsidiaries or any of its respective
properties or assets that would have a material adverse effect on the business, properties, operations, condition (financial or other),
results of operations or prospects of the Company and its subsidiaries, taken as a whole, or the validity or enforceability of, or the
ability of the Company to perform its obligations under, the Offering Documents, or (iii) have any material adverse effect on any permit,
certification, registration, approval, consent, license or franchise necessary for the Company or its subsidiaries to own or lease and
operate any of its properties and to conduct any of its business or the ability of the Company or its subsidiaries to make use thereof.
3.4 Absence
of Certain Proceedings. The Company is not aware of any action, suit, proceeding, inquiry or investigation before or by any court,
public board or body, or governmental agency pending or threatened against or affecting the Company or any of its subsidiaries, in any
such case wherein an unfavorable decision, ruling or finding could adversely affect the validity or enforceability of, or the authority
or ability of the Company to perform its obligations under, the Offering Documents.
4. Miscellaneous
4.1 Any
notice or other communication given hereunder shall be deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, addressed to the Company, at Nyiax, Inc., 900 Easton Avenue, STE 26-1088, Somerset, NJ 08873-1760, , Attention: Teri
Gallo, CEO, and to the Subscriber at his, her or its address indicated on the signature page of this Subscription Agreement. Notices shall
be deemed to have been given three (3) business days after the date of mailing, except notices of change of address, which shall be deemed
to have been given when received.
| 2 | A “senior foreign political figure” is defined
as a senior official in the executive, legislative, administrative, military or judicial branches of a foreign government (whether elected
or not), a senior official of a major foreign political party, or a senior executive of a foreign government-owned corporation. In addition,
a “senior foreign political figure” includes any corporation, business or other entity that has been formed by, or for the
benefit of, a senior foreign political figure. |
| 3 | “Immediate family” of a senior foreign political
figure typically includes the figure’s parents, siblings, spouse, children and in-laws. |
| 4 | A “close associate” of a senior foreign political
figure is a person who is widely and publicly known to maintain an unusually close relationship with the senior foreign political figure
and includes a person who is in a position to conduct substantial domestic and international financial transactions on behalf of the
senior foreign political figure. |
4.2 This
Subscription Agreement may be amended through a written instrument signed by both the Subscriber and the Company; provided, however, that
the terms of this Subscription Agreement may be amended without the consent or approval of the Subscriber so long as such amendment applies
in the same fashion to the subscription agreements of all of the other subscribers for the Units in the Offering and at least holders
of a majority of the Units sold in the Offering have given their approval of such amendment, which approval shall be binding on all holders
of the Units.
4.3 This
Subscription Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective heirs, legal representatives,
successors and assigns. This Subscription Agreement sets forth the entire agreement and understanding between the parties as to the subject
matter hereof and merges and supersedes all prior discussions, agreements and understandings of any and every nature among them.
4.4 This
Subscription Agreement shall be construed in accordance with the laws of the State of New York, without regard to principles of conflicts
of law. The parties hereunder agree that any dispute arising out of or relating to an investment pursuant to this Subscription Agreement
or concerning this Subscription Agreement, including but not limited to disputes as to arbitrability and all disputes with the Company,
or any employee, agent, representative, officer, director or attorney of the Company, shall be resolved through final, binding, non-appealable
arbitration, before a single, neutral arbitrator, at JAMS, in New York County, New York in accordance with the rules and regulations of
the American Arbitration Association. Venue of all arbitration shall be JAMS Dispute Resolution Center, New York County, New York. The
Parties agree that each side will pay fifty percent (50%) of the cost of any arbitration proceedings. Judgment on any arbitration award
may be entered in any court having jurisdiction. Any arbitration award shall be in United States Dollars and may be enforced in any jurisdiction
in which the party against whom enforcement is sought maintains assets. The Parties agree to limit their respective testimony at any arbitration
hearing to three hours per side. SUBSCRIBER HEREBY WAIVES ANY RIGHT TO SEEK ANY TYPE OF DAMAGES OTHER THAN COMPENSATORY DAMAGES, INCLUDING
BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES AND PUNITIVE DAMAGES. SUBSCRIBER HEREBY FURTHER WAIVES THE RIGHT TO A TRIAL BY JURY, THE RIGHT
TO BRING A CLASS ACTION SUIT, AND OTHER POTENTIAL REMEDIES THAT OTHERWISE MAY BE AFFORDED BY LAW. THIS IS A CLASS ACTION WAIVER THAT APPLIES
TO ALL DISPUTES ARISING OUT OF THIS INVESTMENT, INCLUDING BUT NOT LIMITED TO ANY DISPUTES WITH THE COMPANY AND ALL OF ITS EMPLOYEES, AGENTS,
REPRESENTATIVES, OFFICERS, DIRECTORS, OR ATTORNEYS.
4.5 This
Subscription Agreement may be executed in counterparts. It shall not be binding upon the Company unless and until it is accepted by the
Company. Upon the execution and delivery of this Subscription Agreement by the Subscriber, this Subscription Agreement shall become a
binding obligation of the Subscriber with respect to the purchase of Units as herein provided; subject, however, to the right hereby reserved
to the Company to enter into the same agreements with other subscribers and to add and/or to delete other persons as subscribers. This
Subscription Agreement may be executed and delivered by facsimile or by email with scanned copy.
4.6 The
holding of any provision of this Subscription Agreement to be invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision of this Subscription Agreement, which shall remain in full force and effect.
4.7 It
is agreed that a waiver by either party of a breach of any provision of this Subscription Agreement shall not operate, or be construed,
as a waiver of any subsequent breach by that same party.
4.8 The
parties agree to execute and deliver all such further documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this Subscription Agreement.
4.9 The
Company agrees not to disclose the names, addresses or any other information about the Subscriber, except as required by law.
4.10 The
obligation of the Subscriber hereunder is several and not joint with the obligations of any other subscribers for the purchase of Units
in the Offering (the “Other Subscribers”), and the Subscriber shall not be responsible in any way for the performance
of the obligations of any Other Subscribers of the Offering. Nothing contained herein or in any other agreement or document delivered
at the closing, and no action taken by the Subscriber pursuant hereto, shall be deemed to constitute the Subscriber and the Other Subscribers
of the Offering as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Subscriber
and the Other Subscribers of the Offering are in any way acting in concert with respect to such obligations or the transactions contemplated
by this Subscription Agreement. The Subscriber shall be entitled to protect and enforce the Subscriber’s rights, including without
limitation the rights arising out of this Subscription Agreement, and it shall not be necessary for any other subscriber(s) of the Offering
to be joined as an additional party in any proceeding for such purpose. The Subscriber is not acting as part of a “group”
(as that term is used in Section 13(d) of the Exchange Act) in negotiating and entering into this Subscription Agreement or purchasing,
disposing of or voting any of the Units. The Company hereby confirms that it understands and agrees that the Subscriber is not acting
as part of any such group.
4.11 The
language used in this Subscription Agreement will be deemed to be the language chosen by the Parties to express their mutual intent, and
no rules of strict construction will be applied against any party.
[INVESTOR QUESTIONNAIRE AND SIGNATURE PAGE FOLLOWS]
Appendix I
Investor Questionnaire
Unless instructed otherwise, the Investor should
answer each question on the Questionnaire. If the answer to a particular question is “None” or “Not Applicable,” please
so state. If the Questionnaire does not provide sufficient space to answer a question, please attach a separate schedule to your executed
Questionnaire that indicates which question is being answered thereon. Persons having questions concerning any of the information requested
in this Questionnaire should consult with their purchaser representative or representatives, lawyer, accountant or broker.
PART I — FOR INDIVIDUALS
1. Personal Data
Name: ______________________________
Residence Address: ____________________________________________________
____________________________________________________________________
____________________________________________________________________
Business Address: ______________________________________________________
____________________________________________________________________
State of residence, if different: ___________________
Telephone: Residence ______________________ Business ____________
Age: ______________________ Citizenship: ____________
Send all correspondence to: Residence ____________ Business ____________
2. Investor Status
To be qualified to invest in the Units, the Investor
must either (i) be an Accredited Investor, or (ii) have, either alone or with your purchaser representative or representatives, such knowledge
and experience in financial and business matters that you are capable of evaluating the merits and risks of such investment.
Please check the appropriate representation that
applies to you.
Accredited Investors:
________ I am an Accredited Investor (as defined
in Rule 501 of Regulation D promulgated under the Securities Act) because I certify that (check all appropriate descriptions that apply):
| a. | ____________ I have a net worth, or joint net worth with my spouse or spousal equivalent, of more than
US$1,000,000. (“Net worth” means the excess of total assets at fair market value (including personal and real property but
excluding the estimated fair market value of your primary home) over total liabilities. “Total liabilities” excludes any mortgage
on the primary home in an amount of up to the home’s estimated fair market value as long as the mortgage was incurred more than 60 days
before the Units are purchased, but includes (i) any mortgage amount in excess of the home’s fair market value and (ii) any mortgage amount
that was borrowed during the 60-day period before the closing date for the sale of the Units for the purpose of investing in the Units.
“Spousal equivalent” means a cohabitant occupying a relationship generally equivalent to that of a spouse. “Joint net
worth” is the aggregate net worth of a person and spouse or spousal equivalent; assets do not need to be held jointly to be included
in the calculation.) |
| b. | ____________ I have had an individual income in excess of US$200,000 in each of the two most recent calendar
years, or joint income with my spouse or spousal equivalent in excess of US$300,000 in each of those years and have a reasonable expectation
of reaching the same income level in the current calendar year. (“Income” means annual adjusted gross income, as reported
for federal income tax purposes, plus (i) the amount of any tax-exempt interest income received; (ii) the amount of losses claimed as
a limited partner in a limited partnership; (iii) any deduction claimed for depletion; (iv) amounts contributed to an IRA or Keogh retirement
plan; (v) alimony paid; and (vi) any gains excluded from the calculation of adjusted gross income pursuant to the provisions of Section
1202 of the U.S. Internal Revenue Code of 1986, as amended.) |
| c. | ____________ I hold in good standing one of the following professional licenses: the General Securities
Representative license (Series 7), the Private Securities Offerings Representative license (Series 82), or the Investment Adviser Representative
license (Series 65). |
| d. | ____________ I am a director, executive officer or general partner of the Company, or a director, executive
officer or general partner of a general partner of the Company. (For purposes of this item 2, “executive officer” means the
president; any vice president in charge of a principal business unit, division or function, such as sales, administration or finance;
or any other person or persons who perform(s) similar policymaking functions for the Company.) |
PART II—PURCHASERS WHO ARE NOT INDIVIDUALS
1. General Information
Name of Entity: __________________________________
Address of Principal Office: _______________________________________________
____________________________________________________________________
____________________________________________________________________
Type of Organization: _______________________________
Date and State of Organization: _________________________________
2. Accredited Investor Status
To be qualified to invest in the Units, the Investor
must either (i) be an Accredited Investor, or (ii) have, and if applicable, its officers, employees, directors or equity owners have,
either alone or with its purchaser representative or representatives, such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of such investment.
Please check the appropriate description which
applies to you.
| a. | ____________ A bank, as defined in Section 3(a)(2) of the Securities Act or any savings and loan association
or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in an individual or a fiduciary capacity. |
| b. | ____________ A broker or dealer registered under Section 15 of the Securities Exchange Act of 1934, as
amended. |
| c. | ____________ An investment adviser registered pursuant to Section 203 of the U.S. Investment Advisers
Act of 1940 or registered pursuant to the laws of a state. |
| d. | ____________ An investment adviser relying on the exemption from registering with the SEC under Section
203(l) or (m) of the Investment Advisers Act of 1940. |
| e. | ____________ An insurance company, as defined in Section 2(a)(13) of the Securities Act. |
| f. | ____________ An investment company registered under the Investment Company Act of 1940 or a business development
company, as defined in Section 2(a)(48) of that act. |
| g. | ____________ A Small Business Investment Company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the U.S. Small Business Investment Act of 1958. |
| h. | ____________ A Rural Business Investment Company as defined in Section 384A of the U.S. Consolidated Farm
and Rural Act. |
| i. | ____________ A plan established and maintained by a state, its political subdivisions or any agency or
instrumentality of a state or its political subdivisions for the benefit of its employees, if the plan has total assets in excess of US$5
million. |
| j. | _____________ An employee benefit plan within the meaning of Title I of the Employee Retirement Income
Security Act of 1974, if the investment decision is being made by a plan fiduciary, as defined in Section 3(21) of such act, and the plan
fiduciary is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, or if the employee
benefit plan has total assets in excess of US$5 million, or if the employee benefit plan is a self-directed plan in which investment decisions
are made solely by persons that are accredited investors. |
| k. | _____________ A private business development company, as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940. |
| l. | ______________A corporation, Massachusetts or similar business trust, partnership, or limited liability
company or an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, that was not formed for the
specific purpose of acquiring the Securities, and that has total assets in excess of US$5 million. |
| m. | ______________ A trust with total assets in excess of US$5 million not formed for the specific purpose
of acquiring the Securities, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the Securities
Act. |
| n. | ______________ An entity in which all of the equity owners (whether entities themselves or natural persons)
are accredited investors and meet the criteria listed under the section of “For Individual Investors Only” of this Certification. |
| o. | ______________ An entity of a type not listed above, that is not formed for the specific purpose of acquiring
the Shares and owns investments in excess of US$5 million. For purposes of this clause, “investments” means investments as defined
in Rule 2a51-1(b) under the Investment Company Act of 1940. |
| p. | ______________ A family office, as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act of
1940, that (i) has assets under management in excess of US$5 million; (ii) is not formed for the specific purpose of acquiring the Securities
and (iii) has a person directing the prospective investment who has such knowledge and experience in financial and business matters so
that the family office is capable of evaluating the merits and risks of the prospective investment. |
| q. | _____________ A family client, as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940, of a family office meeting
the requirements of the immediately preceding clause and whose prospective investment in the Issuer is directed by that family office
pursuant to subclause (iii) of the immediately preceding clause. |
Subscription Procedures
To subscribe for the Units, a prospective
investor will be required to deliver funds to us, by check made payable to “Nyiax, Inc.” or by wire transfer to the Company.
In addition, the prospective investor must complete, execute and deliver to us this Subscription Agreement and Investor Questionnaire,
including information necessary for us to determine whether the prospective investor is qualified under federal and state securities laws
and regulations to be an investor.
Wire Transfer Instructions
[signature page follows]
This page constitutes the
signature page for the Subscription Agreement, the Investor Questionnaire and execution of this signature page constitutes execution of
each.
IN WITNESS WHEREOF, the Subscriber
has executed this Subscription Agreement and Investor Questionnaire this _____ day of ______________, 2024.
| |
$ |
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Total Purchase Price |
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For Individuals: |
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Name of Prospective Investor (print or type) |
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(Signature) |
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Name of Joint Prospective Investor (print or type) |
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(if applicable) |
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(Joint Signature, if applicable) |
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For Entities: |
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Name of Prospective Investor (print or type) |
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By: |
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(Signature) |
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Name: |
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Title: |
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(Name and Initials of IRA custodian, if applicable) |
$
Total Purchase Price Accepted
Accepted and Agreed, as of ______________, 2024:
| Nyiax, Inc. |
|
| |
|
|
| By: |
|
|
| Name: |
Teri Gallo |
|
| Title: |
CEO |
|
Exhibit B
Form of Unsecured Convertible Promissory Note
(see attached)
Exhibit C
Form of Common Stock Purchase Warrant
(see attached)
Exhibit D
Wire Instructions
Exhibit E
Risk Factors
(see attached)
Exhibit F
See attached (Business Summary)
Exhibit F-1
