United States securities and exchange commission logo
June 29, 2022
Christopher Hogan
Interim Chief Executive Officer
NYIAX, INC.
180 Maiden Lane, 11th Floor
New York, NY 10005
Re: NYIAX, INC.
Registration
Statement on Form S-1
Filed June 1, 2022
File No. 333-265357
Dear Mr. Hogan:
We have reviewed your 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
February 24, 2022 letter.
Registration Statement on Form S-1 filed June 1, 2022
Management's Discussion and Analysis of Financial Condition and Results
of Operations
NYIAX's Revenue Drivers, page 25
1. We note your reference
to "Other Potential Fees." Please quantify the seat licensing and
transaction fees in
your revenue discussion, or tell us if these fees are immaterial.
Liquidity and Capital Resources, page 29
2. 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.
Christopher Hogan
FirstName LastNameChristopher Hogan
NYIAX, INC.
Comapany
June NameNYIAX, INC.
29, 2022
June 29,
Page 2 2022 Page 2
FirstName LastName
Non GAAP Financial Measures, page 29
3. We note your disclosures indicate that Adjusted EBITDA Loss is your
only non-
GAAP financial measure. In regard to your tables reconciling the
non-GAAP financial
measure, please ensure that the GAAP reconciliations begin with the
GAAP measure (Net
Loss) and end with the non-GAAP measure. Also, provide an analysis of
changes in
Adjusted EBITDA Loss between periods.
4. Please remove the reconciliations that begin in Revenue, net and end
in Adjusted
EBITDA Loss as the manner of presentation resembles a full income
statement and begins
with Revenue, contrary to the equal or greater prominence requirement.
See Item
10(e)(1)(i)(A) of Regulation S-K and Question 102.10 of the Compliance
& Disclosure
Interpretations for Non-GAAP Financial Measures.
5. Furthermore, in order to avoid confusion, please remove the
discussions related to Net
Revenue (Non-GAAP) and Operating Expenses (Non-GAAP), unless they are
also non-
GAAP measures. If Net Revenue (Non-GAAP) and Operating Expenses
(Non-GAAP)
are in fact non-GAAP measures, please revise their presentations to
comply with all
requirements in Item 10(e) of Regulation S-K. Please also note that
non-GAAP measures
should not have titles that are confusingly similar to GAAP measures.
6. In regard to your key performance indicators, Media Contracts and
average compensation
per Media Contract, please move the discussion of these metrics to
support your GAAP-
based results discussion.
NYIAX Platform and Nasdaq Technology, page 38
7. We note your response to prior comment 5. To the extent applicable,
please disclose the
termination provision of your IT Services Agreement and the term and
termination
provisions of your Joint IP Agreement.
Business
Our Clients, page 53
8. We note your response to prior comment 6 and reissue it in part.
Please disclose the
material terms of your agreements with Pubmatic, OpenX and Univision.
For example,
please disclose the specific terms and termination provisions under
such agreements.
Statements of Operations, page F-16
9. Disclose cost of revenues separately on your income statement,
pursuant to Rule 5-
03(b)(2) of Regulation S-X.
Christopher Hogan
FirstName LastNameChristopher Hogan
NYIAX, INC.
Comapany
June NameNYIAX, INC.
29, 2022
June 29,
Page 3 2022 Page 3
FirstName LastName
10. In regard to share-based compensation, please explain to us how
excluding employee
costs from cost of revenues, technology and development, and sales,
general and
administrative expenses complies with generally accepted accounting
principles and
Rule 5-03(b) of Regulation S-X.
Note 11. Subsequent Events, page F-37
11. Please provide us with a breakdown of the details of all stock-based
compensation awards
granted since March 31 2021, including the fair value of the
underlying stock used to
value such awards. To the extent there were any significant
fluctuations in the fair values,
please describe for us the factors that contributed to such
fluctuations, including any
intervening events within the company or changes in your valuation
assumptions or
methodology.
General
12. We note your response to prior comment 8 and your responses to
comments 24 and 25 of
our letter dated January 21, 2022. We note, however, that page 44
continues to state that
your platform enables advertising or audience campaigns to be "listed,
bought and sold as
if they were a financial instrument through a forward or a future
contract methodology."
Please revise to remove this disclosure or advise.
13. The risk factor you added on page 8 states that you use a U.S.-based
developer that
employs Russian employees and notes that sanctions imposed on Russia
could limit your
ability to transact with this developer that has employees located in
Russia. Please revise
to identify this developer and clarify whether this developer is
subject to sanctions.
Additionally, please tell us whether any import or export control
restrictions are applicable
to your business.
14. We note your response to comment 7, as well as your previous related
responses. While
we do not have any further comments at this time regarding your
responses, please
confirm your understanding that our decision not to issue additional
comments should not
be interpreted to mean that we agree with your responses, including
any conclusions you
have made, positions you have taken and/or practices you have engaged
in or may engage
in with respect to this matter.
Christopher Hogan
FirstName LastNameChristopher Hogan
NYIAX, INC.
Comapany
June NameNYIAX, INC.
29, 2022
June 29,
Page 4 2022 Page 4
FirstName LastName
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Refer to Rules 460 and 461 regarding requests for acceleration. Please
allow adequate
time for us to review any amendment prior to the requested effective date of
the registration
statement.
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