Exhibit 10.17 


 


SUBSCRIPTION AGREEMENT


 


This
SUBSCRIPTION AGREEMENT (“Subscription Agreement”) made as of this______ day of__________________, by and
between NYIAX, Inc., a Delaware corporation (the “Company”), and the undersigned (the
“Subscriber”).


 


RECITALS


 


WHEREAS, Company intends to
obtain subscriptions up to $5,000,000 (the “Maximum Offering Amount”) for the purchase and sale, in a private placement
transaction (the “Offering”) pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Act”)
and Rule 506(c) of Regulation D promulgated thereunder (“Regulation D”), of its units (collectively, the “Units”),
each consisting of (i) one share (collectively, the “Shares”) of its common stock, par value $0.0001 per share (collectively
the “Common Stock”), and (ii) one 5-year warrant (each whole warrant is referred to as a “Warrant”, and
collectively, the “Warrants”) to purchase one quarter (1/4) of a share of Common Stock at an exercise price of $6.60 per share.
Subject to the Company’s discretion, the Company may accept subscriptions up to $7,000,000 (the “Over-Subscription Amount”),
on the terms and conditions hereinafter set forth, and the Subscriber desires to acquire that number of Units set forth on the signature
page hereof.


 


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 


 


1.1 Subject to the
terms and conditions hereinafter set forth, the Subscriber hereby subscribes for and agrees to purchase from the Company the number
of Units as is set forth upon the signature page hereof at a price of $5.00 per Unit (the “Purchase Price”). The
Company agrees to sell such Units to the Subscriber for the Purchase Price, subject to the provisions of Section 1.7,
below.


 


1.2 The
subscription period will begin as of the date of this Subscription Agreement and will terminate at 5:00 PM Eastern Standard Time on
April 6, 2018, unless extended on one or more occasions for up to an additional 30 days by the Board of Directors of the Company and
the Placement Agent (as defined below) in their joint discretion (the “Termination Date”). The Units will be
offered on a “best efforts” basis as more particularly set forth in that Confidential Private Placement Memorandum and
any supplements thereto (the “Offering Memorandum”), dated December 7, 2017. The minimum investment per
subscription of the Offering is $50,000.00, subject to the Company’s right to accept a lesser amount. There is no minimum
number of Units that must be sold to close the Offering. The Company may conduct one or more closings (each, a
“Closing”) prior to the receipt of the Maximum Offering Amount of $5,000,000. In the event the Offering is
oversubscribed in excess of the Maximum Offering Amount, the Offering may be increased up to the Over-Subscription Amount in the
discretion of the Company (the “Over-Subscription”). The consummation of the Offering is subject to the
satisfaction of a number of conditions to be further described in the Offering Memorandum, one or more of which conditions may not
occur.


 


1.3 Placement of
the Units will be made by WestPark Capital, Inc. (the “Placement Agent”), which will receive certain compensation
therefore as will be more fully described in the Offering Memorandum.


 






     


     


    

 





1.4 The Purchase Price
will be placed in escrow pursuant to an escrow agreement (the “Escrow Agreement”) by and among the Placement
Agent, the Company and Signature Bank, as escrow agent (the “Escrow Agent”), and such escrowed funds shall be transmitted
and maintained in compliance with SEC Rule 15c2-4, as promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), as applicable, and shall be released to the Company at one or more Closings. Such funds will be held for the Subscriber’s
benefit, and will be returned promptly, without interest or offset if this Subscription Agreement is not accepted by the Company, or
the Offering is terminated pursuant to its terms or by the Company or the Placement Agent prior to the any Closing.


 



1.5 Certificates representing the Shares and the Warrants bearing the name of the Subscriber will be delivered by the
Company within a reasonable amount of time following the final Closing of the Offering. The Subscriber hereby authorizes and directs
the Company to deliver the aforementioned certificates to be issued to such Subscriber pursuant to this Subscription Agreement to
the residential or business address indicated in the Accredited Investor Representation Letter, as attached.


 


1.6 The Purchase Price
for the Units purchased hereunder shall be paid to the Escrow Agent pursuant to the following instructions:


 


If by wire transfer:


 


Beneficiary Bank:


ABA:


Beneficiary Name:


Beneficiary Account Number:


 


If by check:


 


Payable to:


 


Mailed to:


 


1.7 The Company or
the Placement Agent, may, in their sole discretion, 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. Neither the Company nor
the Placement Agent shall be required to allocate among investors on a pro rata basis in the event of an over-subscription.


 



2. Representations and Covenants of Subscriber


 


2.1 The
Subscriber recognizes that the purchase of the Units involves a high degree of risk in that (i) the Company will 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 Company and the
Units; (iii) an investor may not be able to liquidate his, her or its investment in the Units; (iv) transferability of the Shares
and/or the Warrants 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 Offering Memorandum,
the terms of which have been reviewed and accepted by the Subscriber.


 






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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 Act, as indicated by his, her or its responses to the Accredited Investor Representation Letter, the form of
which is attached hereto as Exhibit A, and that he, she or it is able to bear the economic risk of an investment in the
Units. The Subscriber understands and agrees that pursuant to Rule 506(c) of Regulation D promulgated under the Act, the Company
needs to take reasonable steps to verify that the Subscribers are accredited investors directly or by a third party verification
service. The Subscriber understands that the Company will review this Agreement and the results from a third party verification
service and the Company has the discretion to reject any subscription, in whole or in part. The Subscriber must complete the
applicable Accredited Investor Representation Letter to enable the third party verification service 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 and in the
Subscriber’s Accredited Investor Representation Letter, 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
agrees, as part of verifying the Subscriber’s status as an “accredited investor”, to submit supporting
documentation as described in the Accredited Investor Representation Letter.


 


2.5 The Subscriber
acknowledges that he, she or it has prior investment experience, including without limitation, investment in non-listed and
non-registered securities, 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
Units 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.


 


2.6 The Subscriber
acknowledges receipt and careful review of the Offering Memorandum, this Subscription Agreement, and the attachments hereto and
thereto (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.








 






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2.7 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.


 


2.8 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 Act and/or Rule 506(c) 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 unless they are registered under the 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.


 


2.9 The
Subscriber understands that the Units have not been registered under the Act by reason of a claimed exemption under the provisions
of the 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.


 


2.10
The Subscriber understands that Rule 144 (the “Rule”) promulgated under the Act requires, among other conditions,
a six (6) month holding period prior to the resale (in limited amounts) of securities acquired in a non-public offering, such as the Offering,
without having to satisfy the registration requirements under the Act. The Subscriber understands that the Company makes no representation
or warranty regarding its fulfillment in the future of any reporting requirements under 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 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 contained herein or in the Accredited Investor Representation Letter or any sale or distribution by the undersigned Subscriber
in violation of any Securities Laws.


 


2.11
The Subscriber acknowledges and consents to the placement of one or more legends on any certificate or other document evidencing
his, her or its Shares and Warrants stating that they have not been registered under the Act, substantially in the form as set forth below,
and are subject to the terms of this Subscription Agreement, including the lock up restriction set forth in Section 5.5, and setting
forth or referring to the restrictions on the transferability and sale thereof:


 


THESE SECURITIES [AND THE
SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE] 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.


 






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2.12
The Subscriber understands that the Company will review this Subscription Agreement and the Accredited Investor Representation
Letter and, if the Subscriber is a natural person, the Company is hereby given authority by the Subscriber to call his, her or its bank
or place of employment. The Subscriber further authorizes the Company to review his, her or its financial standing; and the Subscriber
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.


 


2.13
The Subscriber hereby represents that the address of Subscriber furnished by him, her or it at the end of this Subscription Agreement
and in the Accredited Investor Representation Letter is the undersigned’s principal residence if he, she or it is an individual
or its principal business address if it is a corporation or other entity.


 


2.14
The Subscriber acknowledges that if the Subscriber is a Registered Representative of a Financial Industry Regulatory Authority
(“FINRA”) member firm, he, she or it 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.


 


2.15
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.


 


2.16
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.


 


2.17
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.


 


2.18
If the Subscriber is not a United States person, such Subscriber hereby represents that it has satisfied 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 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.








 






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2.19 The
Subscriber acknowledges that (i) the Offering Memorandum contains material, nonpublic information concerning the Company within the
meaning of Regulation FD promulgated by the SEC, 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. In accordance with Regulation FD and other applicable provisions of the Securities Laws, 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. In addition, the
Subscriber further acknowledges that the Subscriber and such legal counsel, advisors and other representatives are prohibited from
trading in the Company’s securities while in possession of material, non-public information and agrees to refrain from
purchasing or selling securities of the Company until such material, non-public information has been publicly disseminated by the
Company. 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 Subscriber without registration under
the Act in a private placement that is exempt pursuant to Section 4(a)(2) of the Act and Rule 506(c) 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 Subscribers, 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
Common Stock is listed, if applicable, and those of federal and state governments and other agencies such as improper short selling of
the Company’s Common Stock and failure to properly file all documents required by the SEC or otherwise.


 


2.22
The Subscriber agrees that it, he, she or it shall not, directly or indirectly sell, assign, exchange, distribute, offer to sell,
contract to sell (including, without limitation, any short sale), hypothecate, pledge, grant any option to purchase or otherwise transfer
or dispose of any Units, Shares or Warrants of the Company held by it, him or her and purchased further to this Subscription Agreement,
at any time from the date hereof until that date that is six (6) months from the effective date of the Offering.


 


2.23
Special “Bad Actor” Risk Disclosures. The undersigned 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 undersigned is expressly assuming such risks. The undersigned acknowledges and is aware that the Units are speculative investments
which involve a high degree of risk of loss by Subscriber of his, her or its entire investment in the Company. The undersigned agrees
and acknowledges that it is the undersigned’s sole responsibility to conduct a “due diligence” investigation of the
Company and the financial prospects of the Company. The undersigned has not relied on the Placement Agent, WestPark Capital, Inc., for
due diligence or suitability or investment recommendations.


 






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3. Anti-Dilution Protection.
In the event that the Company effects a Qualified Financing (as defined below) at a pre-money valuation (on a primary basis without taking
into account the exercise of any options or warrants) that is lower than the post-money valuation of the Company after completion of
the Offering (on a primary basis without taking into account the exercise of any options or warrants), each Subscriber in the Offering
shall receive additional fully-paid and non-assessable shares of the Company’s Common Stock from the Company (the “Additional
Investor Shares”) so that upon receipt of such Additional Investor Shares, the average cost to each Subscriber of its, his
or her Shares shall be reduced to a pre-money valuation equal to a twenty percent (20%) discount to the pre-money valuation of the Qualified
Financing. The number of Additional Investor Shares to be issued to Subscriber herein in a Qualified Financing shall be equal to (x)
the total monetary amount invested by the Subscriber divided by (y) eighty percent (80%) of the per share purchase price of the Qualified
Financing, minus (z) the number of shares of Common Stock owned by the Subscriber in this Offering. A “Qualified Financing”
shall mean the next offering of equity or equity linked securities by the Company after the Offering in an amount of at least $1,000,000.


 


4. Reserved


 


5. Representations by the
Company 


 


     The Company represents and warrants to the Subscriber that:


 


5.1 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.


 


5.2 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.


 


5.3 Non-Contravention.
The execution and delivery of the Offering Documents by the Company, the issuance of the Units as contemplated by the Offering
Documents and the completion by the Company of the other transactions 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 certificate
of incorporation or by-laws or similar instruments of the Company or its subsidiaries, (ii) conflict with or result in a breach by
the Company or its subsidiaries of any of the terms or provisions of, or constitute a default under, or result in the modification
of, or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the properties or
assets of the Company or its subsidiaries, pursuant to any agreements, instruments or documents or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which Company or any of its
subsidiaries or any of its properties or assets are bound or affected, in any such case which 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, (iii) 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 (iv) 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.


 






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5.4 Absence of
Certain Proceedings. Other than a demand for arbitration filed with the American Arbitration Association against us by a former
employee/officer in May 2017 (please refer to the risk factor regarding litigation in the Offering Memorandum for more information),
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.


 


5.5 Piggy-Back
Registration Right. If the Company proposes to register any of its Common Stock (other than pursuant to a Registration on Form
S-4 or S-8 or any successor form), it will give prompt written notice to the Subscriber of its intention to effect such registration
(the “Incidental Registration”). Within ten (10) business days of receiving such written notice of an Incidental
Registration, the Subscriber may make a written request (the “Piggy-Back Request”) that the Company include in the
proposed Incidental Registration all, or a portion, of the Units owned by the Subscriber. The Company will use its commercially
reasonable efforts to include in any Incidental Registration all Units which the Company has been requested to register pursuant to
any timely Piggy-Back Request. Notwithstanding the foregoing, (i) the Company shall not be obligated pursuant to this Section
5.5 to effect a registration pursuant to a timely Piggy-Back Request if the Company discontinues the related Incidental
Registration at any time prior to the effective date of any Registration Statement filed in connection therewith; (ii) if a
registration pursuant to this Section 5.5 involves an underwritten offering, and the managing underwriter (or, in the case of
an offering that is not underwritten, an investment banker) shall advise the Company that, in its opinion, the number of securities
requested and otherwise proposed to be included in such registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include in such registration to the extent of the number
which the Company is so advised can be sold in such offering, first, the securities the Company proposes to sell for its own
account in such registration and second, the Units of the Subscriber requesting to be included in such registration and all
other securities requested to be included in such registration on a pro rata basis; (iii) if the Company is engaged in, or
has definitive plans to engage in, any activity or negotiations that, in the good faith determination of the Board of Directors of
the Company, would be adversely affected by disclosure that would be required in connection with a registration to the material
detriment of the Company, then the Company may delay such registration for a period of 80 days from the date of the conclusion of
such activity or negotiations; and (iv) the Company shall not be obligated pursuant to this Section 5.5 to effect a
registration pursuant to a timely Piggy-Back Request of any Units that are eligible for resale pursuant to Rule 144 promulgated
under the Act or that are the subject of a then effective registration statement.


 



6. Miscellaneous 


 


6.1 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., 85 Broad Street, New York, NY 10004, Attention: Carolina
Abenante, 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.


 






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6.2 This
Subscription Agreement may be amended through a written instrument signed by both the Subscriber and the Company; provided, however,
that the terms of Section 6 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.


 


6.3 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.


 


6.4 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 of its Placement Agents, or any employee, agent, representative, officer, director or attorney of
the Company or any Placement Agent, 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, ITS PLACEMENT AGENT, AND ALL OF THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, OFFICERS, DIRECTORS, OR ATTORNEYS.


 


6.5 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.


 


6.6 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.


 


6.7 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.








 






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6.8 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.


 


6.9 The Company
agrees not to disclose the names, addresses or any other information about the Subscribers, except as required by law, provided that
the Company may provide information relating to the Subscriber as required in any registration statement under the Act that may be
filed by the Company pursuant to the requirements of this Subscription Agreement.


 


6.10
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 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. 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.


 


[SIGNATURE
PAGE FOLLOWS]


 












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IN
WITNESS WHEREOF, the parties have executed this Subscription Agreement as of the day and year first written above.




 

Subscriber

 





	Full Legal Name of Subscriber (Please print)	 	Full Legal Name of Co-Subscriber (if applicable)
	 	 	 
	Signature of (or on behalf of) Subscriber	 	Signature of or on behalf of Co-Subscriber (if applicable)
	 	 	 
	Name:	 	 
	Title:	 	 
	 	 	 
	Address of Subscriber	 	Address of Co-Subscriber (if applicable)
	 	 	 
	Social Security or Taxpayer	 	Social Security or Taxpayer Identification
	Identification Number of Subscriber	 	Number of Co-Subscriber (if applicable)
	 	 	 
	Total Dollar Amount of Investment	 	 
	 	 	 
	Number of Units:_____________	 	 


 





 



 





Subscriber Acknowledgement


 


Please sign to indicate the acknowledgement of the following:


 


Robert Ainbinder is a shareholder and director
of NYIAX, INC. He is also a Principal and Branch Manager at the New York City office of WestPark Capital Inc., the Placement Agent. In
such capacities, there is potential for conflicts of interest that may arise in connection with his position as a director of the NYIAX,
INC.


 


	Name	 	



 


 


 


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