Exhibit 4.1


 


THE ISSUANCE AND SALE OF THE SECURITY REPRESENTED BY THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITY MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (i) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITY UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR (B) AN OPINION OF COUNSEL, IN A FORM GENERALLY ACCEPTABLE TO THE COMPANY’S LEGAL COUNSEL, THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT OR (ii) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.


 


DEMAND PROMISSORY NOTE


 


	$6,806,849.55	July 13, 2018
	 	New York, New York



 


FOR
VALUE RECEIVED, Helios and Matheson Analytics Inc., a Delaware corporation (the “Maker”), promises
to pay to the order of  Hudson Bay Master Fund Ltd or its assigns (“Holder”), the principal amount
of $6,806,849.55 (Six million, eight hundred and six thousand, eight hundred and forty nine dollars and .55 cents) (the
“Principal”), which includes $5,000,000 in cash borrowed by the Maker from the Holder on the date hereof
and $1,806,849.55 required to be paid by the Maker to the Holder pursuant to that certain redemption notice, dated July 10,
2018 pursuant to that certain Series B-2 Note (the “June Note”) issued by the Maker to the Holder on June
26, 2018. The Maker also agrees to pay interest (computed on the basis of a 360-day year of twelve 30-day months) on the
unpaid principal balance from the date hereof, at a simple rate per annum (calculated on the basis of a 365-day year) equal
to ten percent (10%), payable as set forth below, provided that in no event shall the rate of interest hereunder exceed the
maximum rate permitted by applicable law.


 


1. Payment
on Demand. The entire unpaid Principal of this demand promissory note (this “Note”), together with
accrued and unpaid interest hereunder, shall be due and payable at any time, or from time to time, upon a demand made by Holder
for any reason or no reason from and after the date hereof. All demands for repayment received by the Maker prior to 3:00 P.M.
New York city time on a given business day shall be paid to the Holder on such given business day. All demands for repayment received
by the Maker after 3:00 P.M. New York city time on a given business day shall be paid to the Holder on the immediately following
business day. The Maker will pay to the Holder of this Note on demand such further amount as shall be sufficient to cover all
costs and expenses of such Holder incurred in the drafting and negotiation of this Note and all costs and expenses of any enforcement
or collection of this Note, including, without limitation, reasonable attorneys’ fees, expenses and disbursements. Payments
shall be credited first to the accrued interest then due and payable and the remainder applied to Principal.


 






     


     


    

 


2. Prepayment;
Mandatory Prepayment. Prepayment of principal, together with accrued interest, may be made at any time without notice, premium
or penalty. With the agreement of Holder, the Principal and accrued interest under this Note may be applied to all, or any part,
of the purchase price of securities to be issued upon the consummation after the date hereof of an offering of securities by Maker
to Holder. At any time any amounts remain outstanding hereunder, all proceeds from the ATM (as defined in the June Note) (the “ATM
Proceeds”) shall be used to repay this Note (as defined below), pro rata (such portion of any given ATM Proceeds required
to be mandatorily paid to the Holder hereunder, each an “ATM Mandatory Payment”). Any ATM Mandatory Payment
received by the Maker prior to 3:00 P.M. New York city time on a given date shall be paid to the Holder on such given date. Any
ATM Mandatory Payment received by the Maker after 3:00 P.M. New York city time on a given date shall be paid to the Holder on
the immediately following business day. All ATM Mandatory Payments shall be made in U.S. dollars and immediately available funds
in accordance with the wire transfer instructions of the Holder delivered to the Maker on or prior to such applicable payment
date. The Maker shall deliver written notice of any transactions with respect to the ATM as soon as commercially practicable following
the close of the Nasdaq Capital Market on such date of determination, but in no event later than 9:00 AM, New York city time,
on the calendar day immediately following the date of such transaction.


 


3. Representations
and Warranties of Maker. Maker represents and warrants as follows as of the date hereof: (a) it is duly organized, validly
existing and in good standing under the laws of its state of Delaware; (b) the execution, delivery and performance by Maker
of this Note are within Maker's powers, have been duly authorized by all necessary actions, and do not contravene its governing
agreements, certificates or other organization documents, and do not contravene any law or any contractual restriction binding
on or affecting Maker; (c) no authorization or approval or other action by, and no notice to or filing with any governmental
authority or regulatory body is required for the due execution, delivery and performance by Maker of this Note; (d) this
Note constitutes the legal, valid and binding obligation of Maker party thereto, enforceable against Maker in accordance with
its terms, except to the extent enforceability is limited by bankruptcy, insolvency, fraudulent conveyance, moratorium and other
laws for the protection of creditors generally and by general equitable principles; (e) after receipt of all cash amounts to be
paid to the Maker on the date hereof pursuant to this Note, the Maker and MoviePass expect to have sufficient capital for operations
through at least July 18, 2018; (f)  there is no pending or, to Maker's knowledge, threatened action or proceeding
affecting Maker before any governmental agency or arbitrator with respect to the transactions contemplated by this Note or which
may materially adversely affect the property, assets or condition (financial or otherwise) of Maker, and (g) neither Maker nor
MoviePass is under any obligation to pay any broker fee or commission in respect of the $5,000,000 borrowed by Maker from Holder
on the date hereof that has not been waived as of the date hereof.


 


4. Late
Charges. Any amount of principal or other amounts due under the Loan Documents which is not paid when due shall result in
a late charge being incurred and payable by the Maker in an amount equal to interest on such amount at the rate of fifteen percent
(15%) per annum from the date such amount was due until the same is paid in full.


 






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5. Use
of Proceeds. Maker shall immediately on the date hereof pay the proceeds of this Note to fund the general working capital
of MoviePass, Inc., a Delaware corporation (“MoviePass”) under Maker’s previously executed option to
acquire common equity of MoviePass, and not for any other purpose other than counsel fees of the Holder and Maker.


 


6. Grant
of Security Interest; Guaranty. The Maker hereby grants and pledges to the Holder a continuing security interest in the ATM
Proceeds, including any and all cash, proceeds, funds, credits, rights and other assets therein or arising therefrom, from time
to time, and any additions, dividends, profits and interest in the foregoing and any replacements or substitutions therefore (collectively,
the “Collateral”) to secure prompt repayment of any and all amounts outstanding hereunder from time to time
and to secure prompt performance by the Maker of each of its covenants and duties under this Note. Such security interest constitutes
a valid, first priority security interest in the Collateral, and will constitute a valid, first priority security interest in
later-acquired Collateral. Notwithstanding any filings undertaken related to the Holder’s rights under the Delaware Uniform
Commercial Code, the Holder’s Lien on the Collateral shall remain in effect for so long as this Note remains outstanding.
No later than the business day following the date of this Note, MoviePass shall execute and deliver the guaranty, in the form
attached hereto as Exhibit A, pursuant to which MoviePass shall guaranty all payment obligations of Maker hereunder.


 


7. Disclosure.
The Maker shall, on or before 10:30 a.m., New York City time on July 13, 2018, file a Current Report on Form 8-K describing this
Note and the transactions contemplated hereby in the form required by the Securities Exchange Act of 1934, as amended, and attaching
the form of this Amendment as an exhibit to such filing (including all attachments, the “8-K Filing”). From
and after the filing of the 8-K Filing, the Maker shall have disclosed all material, non-public information (if any) provided
up to such time to the Holder by the Maker or any of its Subsidiaries or any of their respective officers, directors, employees
or agents. In addition, effective upon the filing of the 8-K Filing, the Maker acknowledges and agrees that any and all confidentiality
or similar obligations under any agreement with respect to the transactions contemplated hereby or as otherwise disclosed in the
8-K Filing, whether written or oral, between the Maker, any of its Subsidiaries or any of their respective officers, directors,
affiliates, employees or agents, on the one hand, and any of the Holder or any of their affiliates, on the other hand, shall terminate.
Neither the Maker, its Subsidiaries nor the Holder shall issue any press releases or any other public statements with respect
to the transactions contemplated hereby; provided, however, the Maker shall be entitled, without the prior approval of the Holder,
to make a press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K
Filing and contemporaneously therewith or (ii) as is required by applicable law and regulations (provided that in the case of
clause (i) the Holder shall be consulted by the Maker in connection with any such press release or other public disclosure prior
to its release). Without the prior written consent of the Holder (which may be granted or withheld in the Holder’s sole
discretion), except as required by applicable law, the Maker shall not (and shall cause each of its Subsidiaries and affiliates
to not) disclose the name of the Holder in any filing, announcement, release or otherwise.


 






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8. Indemnification.
Maker hereby indemnifies and holds harmless Holder, each of its affiliates and correspondents and each of their respective directors,
officers, employees, agents and advisors (each an “Indemnified Party”) from and against any and all actions,
claims, damages, losses, liabilities, fines, penalties, costs and expenses of any kind (including, without limitation, counsel
fees and disbursements in connection with any subpoena, investigative, administrative or judicial proceeding, whether or not the
Indemnified Party shall be designated a party thereto) which may be incurred by the Indemnified Party or which may be claimed
against the Indemnified Party by any person by reason of or in connection with the execution, delivery or performance of this
Note, or action taken or omitted to be taken by Holder under, this Note. Nothing in this paragraph is intended to limit Maker’s
obligations contained elsewhere in this Note. Without prejudice to the survival of any other obligation of Maker hereunder, the
indemnities and obligations of Maker contained in this paragraph shall survive the payment in full of all obligations hereunder.


 


9. No
Distributions. Other than the cash proceeds of this Note, the Maker shall not, directly or indirectly, transfer (whether by
wire transfer, check, contribution, purchase of securities or any assets of a Subsidiary, intercompany loan or otherwise) any cash
or other assets to any Subsidiary of the Maker as long as this Note remains outstanding.


 


 10. Miscellaneous.






 


(a) All
amounts to be paid by hereunder shall be paid when due by wire transfer in United States dollars and immediately available funds
in accordance with the wire instructions delivered to such party entitled to receive such payment prior to such date; provided,
that the Principal shall be paid by Holder directly to MoviePass on the date hereof.


 


(b) If
any payment on this Note shall become due on a Saturday, Sunday or a bank or legal holiday, such payment shall be made on the next
succeeding business day.


 


(c) No
course of dealing and no delay on the part of the Holder of this Note in exercising any right, power or remedy shall operate as
a waiver thereof or otherwise prejudice such Holder’s rights, powers or remedies. No right, power or remedy conferred by
this Note upon the Holder hereof shall be exclusive of any other right, power or remedy referred to herein or now or hereafter
available at law, in equity, by statute or otherwise.


 


(d) Maker
hereby waives presentment, protest and demand, notice of protest, demand and dishonor and nonpayment of this Note.


 






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(e) If
interest or other amounts payable under this Note is in excess of the maximum permitted by law, the interest or other amounts chargeable
hereunder shall be reduced to the maximum amount permitted by law and any excess over the maximum amount permitted by law shall
be credited to the principal balance of this Note and applied to the same and not to the payment of interest or such other amounts,
as applicable.


 


(f) The
Borrower hereby (i) irrevocably submits to the jurisdiction of any Illinois State or Federal court sitting in Chicago, Illinois
in any action or proceeding arising out of or relating to this Note, (ii) waive any defense based on doctrines of venue or
forum non conveniens, or similar rules or doctrines and (iii) irrevocably agree that all claims in respect of such an action
or proceeding may be heard and determined in such Illinois State or Federal court. This Note shall be governed by, and construed
in accordance with, the laws of the State of Illinois. Maker HEREBY waiveS any right
to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Note.


 


(g) This
Note shall be binding upon and inure to the benefit of Maker and Holder and their respective successors, assigns, heirs and legal
representations, except that Maker may not assign any rights or obligations hereunder without the prior written consent of Holder.
Holder may assign to other affiliated entities all or a portion of its rights under this Note.


 


(h) Maker
acknowledges that the transaction of which this Note is a part is a commercial transaction and hereby waives its right to any notice
and hearing as may be allowed by any state or federal law with respect to any prejudgment remedy which any Holder or its successors
or assigns may use.


 


(i) Maker
hereby agrees to pay on demand all reasonable costs and expenses (including, without limitation, all reasonable fees, expenses
and other client charges of counsel to Holder) incurred by Holder in connection herewith and with the enforcement of Holder's
rights, and the collection of all amounts due, hereunder. The Holder of this Note may proceed to protect and enforce the rights
of such Holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any
agreement contained herein, or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise
of any power granted hereby or thereby or by law or otherwise.


 


(j) If
this Note is lost or destroyed, Maker shall, at Holder's request, execute and return to Holder a replacement promissory note identical
to this Note. No replacement of this Note shall result in a novation of Maker's obligations under this Note. Maker acknowledges
the need to act promptly upon its receipt of the documentation evidencing any request by Holder that the Note be replaced pursuant
to this paragraph and agrees that Maker will meet the reasonable deadlines of Holder provided that Maker has received the applicable
documents at least ten (10) business days prior to such deadline. Furthermore, Maker agrees to reasonably cooperate with Holder
to effectuate the obtainment of such title policy endorsements, or new title evidence and other assurances and documents as Holder
shall reasonably require.


 






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IN WITNESS WHEREOF,
this Note has been executed as of the date first written above.


 


	 	HELIOS AND MATHESON ANALYTICS INC.
	 	 
	 	By:	/s/ Theodore Farnsworth
	 	 	Name: Theodore Farnsworth
	 	 	Title: Chief Executive Officer


 


Agreed
and accepted by:


 


Hudson
Bay Master Fund Ltd


 


	By:	/s/ George Antonopoulos	 
	 	Name: George Antonopoulos	 
	 	Title: Authorized Signatory	 


 



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