United States securities and exchange commission logo
February 24, 2022
Robert E. Ainbinder, Jr.
Chief Executive Officer
NYIAX, INC.
180 Maiden Lane, 11th Floor
New York, NY 10005
Re: NYIAX, INC.
Amendment No. 1 to
Draft Registration Statement on Form S-1
Submitted February
7, 2022
CIK No. 0001679379
Dear Mr. Ainbinder:
We have reviewed your amended 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 amending your registration
statement and providing the
requested information. 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 any amendment to your registration statement and
the information you
provide in response to these comments, we may have additional comments.
Unless we note
otherwise, our references to prior comments are to comments in our
January 21, 2022 letter.
Amendment No. 1 to Draft Registration Statement on Form S-1
Management's Discussion and Analysis of Financial Condition and Results
of Operations, page
22
1. We note your response
to prior comment 3; however, we also note your disclosure on
page 45 that you have
"commenced commercial use of the NYIAX platform as of 2021."
Please revise to
provide a clear timeline of when you began to monetize and
commercialize the NYIAX
platform.
Robert E. Ainbinder, Jr.
FirstName LastNameRobert E. Ainbinder, Jr.
NYIAX, INC.
Comapany24,
February NameNYIAX,
2022 INC.
February
Page 2 24, 2022 Page 2
FirstName LastName
Results of Operations, page 25
2. We note that your presentation of results of operations is combined
with your non-GAAP
measures and reconciliation. To avoid giving undue prominence to your
non-GAAP
financial measures, such as Adjusted EBITDA Loss and Operating
Expenses, excluding
share based compensation and amortization and depreciation, please
move references to
non-GAAP measures so that they follow the results of operations
disclosures, which are
presented on a GAAP basis. Refer to Item 10(e)(1)(i)(A) of Regulation
S-K and Question
102.10 of the non-GAAP C&DIs.
3. Please revise your results of operations to present and provide a
discussion of your
historical GAAP basis financial statements as required by Item 303 of
Regulation S-K.
Any discussion of non-GAAP measures (such as Operating Expenses,
excluding share
based compensation and amortization and depreciation) should be in
addition to, and not
in lieu of, a discussion of your historical results of operations
required by
Item 303 of Regulation S-K.
4. We note your response to prior comment 9 and additional disclosures.
In the discussion
of your historical GAAP financial statements, please revise to
separately discuss and
quantify each significant factor contributing to the change for each
of the line items
presented. For example, technology and development and selling and
general expenses both declined from 2019 to 2020, but there is no
discussion of the reason
for these decreases. Please revise your disclosure to comply with
Item 303(b) of Regulation S-K, which sets forth "where the financial
statements reflect
material changes from period-to-period in one or more line items,
including where
material changes within a line item offset one another, describe the
underlying reasons for
these material changes in quantitative and qualitative terms."
NYIAX Platform and Nasdaq Technology, page 33
5. We note your response to prior comment 13 and your revised disclosure
here. Please
revise to also disclose other material terms of your IT Services
Agreement or other
material agreements with Nasdaq, such as termination provisions,
exclusivity provisions
or any other provisions that restrict NYIAX's ability to freely use
the technology covered
by the co-patent. Additionally, please be advised that we may have
additional comments
once the agreement is filed.
Business
Our Clients, page 45
6. We note your response to prior comment 14 and your revised
disclosures. Please revise to
also provide a summary of the material terms of your agreements with
your material
customers. Additionally, while we note that you disclose the number of
customers you
provided services for during the year ended December 31, 2021, please
also disclose your
number of customers as of the end of each period presented in your
financial statements.
Robert E. Ainbinder, Jr.
NYIAX, INC.
February 24, 2022
Page 3
General
7. In order to better evaluate your responses to prior comments 17 and
24-27 and better
understand your current business operations, please provide the
following:
An illustrative example of the lifecycle of a contract;
The material terms of a representative contract;
A description of the services that the platform provides
through the lifecycle of a
contract, from pre-execution to post-execution, as well as of the
services that are
automated through the smart contract and/or blockchain;
An explanation as to whether the contracts are individually
negotiated or
standardized, and if the former how the contracts are
individually negotiated through
the platform;
An explanation as to how contracts are priced on the platform;
Clarification as to whether the contracts are tradeable after
execution. In this regard,
there is disclosure in the filing indicating that the contracts
can be traded or re-traded;
and
An explanation of why the company refers to the contracts as
traded if the market
is a bilateral contract market.
8. Your response to prior comment 24 states that the contracts managed on
your platform are
not financial instruments and that you removed disclosures stating
that your platform
provides a marketplace where advertising or audience campaigns are
listed, bought, or
sold and traded as if they were a financial instrument through a
forward or a future
contract methodology. We note, however, that pages 22 and 38 continue
to contain these
disclosures. Please revise to remove these disclosures or advise.
9. In response to prior comment 28, you state that you currently have no
plans to extend your
platform to other assets classes. However, disclosures on pages 1, 33
and 46 continue to
reference the use of your platform with other complex asset classes. We
also note your
disclosure on page 1 that your technology creates opportunities beyond
your initial market
in media and advertising. If you have no plans to extend your platform
to other asset
classes, please revise to explicitly state this. To the extent you do
have plans to extend
FirstName LastNameRobert E. Ainbinder, Jr.
your platform to other asset classes, we reissue prior comment 28.
Additionally, to the
Comapany NameNYIAX,
extent you continueINC.
to reference "complex asset classes", please
revise to provide your
definition
February 24, 2022ofPage
this term.
3
FirstName LastName
Robert E. Ainbinder, Jr.
FirstName LastNameRobert E. Ainbinder, Jr.
NYIAX, INC.
Comapany24,
February NameNYIAX,
2022 INC.
February
Page 4 24, 2022 Page 4
FirstName LastName
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) 344-5791 or Mitchell Austin, Staff Attorney, at (202)
551-3574 with any other
questions.
Sincerely,
Division of
Corporation Finance
Office of Technology
cc: Mitchell Lampert