Exhibit 4.1


 


THE SECURITIES REFERENCED HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION
MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.


 


SUBORDINATED CONVERTIBLE
PROMISSORY NOTE


 


	$1,800,000	Issuance Date: November 27, 2017


 


For value received, MoviePass Inc., a Delaware
corporation (the “Company”), promises to pay to Helios and Matheson Analytics Inc., a Delaware corporation (the
“Holder”), the principal sum of One Million Eight Hundred Thousand Dollars ($1,800,000), or such lesser amount
as shall then equal the outstanding principal amount hereunder (the “Principal Amount”). Interest shall accrue
on this Note from the Issuance Date of this Note on the unpaid Principal Amount at a rate equal to 5.00% per annum, compounded
annually and computed on the basis of a 365-day year and the actual number of days elapsed. This Note is being issued to the Holder
pursuant to that certain Second Amended and Restated Subordinated Convertible Note Purchase Agreement, dated August 18, 2017, as
amended from time to time, among the Company, the Holder and a Requisite Majority (as defined therein) (the “Amended Note
Purchase Agreement”), that certain Securities Purchase Agreement, dated August 15, 2017, as amended on October 6, 2017,
by and between the Company and the Holder (the “SPA”), subject to that certain Waiver Agreement, dated November
6, 2017, by and between the Company and the Holder, and that certain Investment Option Agreement, dated October 11, 2017, by and
between the Company and the Holder (the “Option Agreement”). Capitalized terms not otherwise defined herein
have the meaning given them in the Option Agreement or the SPA, as applicable. This Note is subject to the following terms
and conditions.


 


	1)	Maturity. While this Note is outstanding, the Principal
                                 Amount and any accrued but unpaid interest under this Note shall be due and payable upon demand
                                 of the Holder at any time after the two-year anniversary of the Issuance Date of this Note first
                                 stated above (the “Maturity Date”). Subject to Section 2 below, interest shall
                                 accrue on this Note and shall be due and payable on the Maturity Date. Notwithstanding the foregoing,
                                 the entire unpaid Principal Amount, together with accrued and unpaid interest thereon, shall
                                 become immediately due and payable upon the commencement of any bankruptcy, insolvency or dissolution
                                 proceeding by the Company, the execution by the Company of a general assignment for the benefit
                                 of creditors, the filing by or against the Company of a petition in bankruptcy or any petition
                                 for relief under the federal bankruptcy act or the continuation of such petition without dismissal
                                 for a period of 90 days or more, or the appointment of a receiver or trustee to take possession
                                 of the property or assets of the Company.



 


		2)	Cancellation of Note Upon Consummation of SPA Transaction. Upon the Closing:



 


		a)	this Note shall be immediately cancelled and of no further force or effect, automatically and without
any action being required on the part of the Holder, and the Company will be forever released from all of its obligations and liabilities
under this Note including (without limitation) the obligation to pay the Principal Amount and accrued interest;



 






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		b)	cancellation of this Note as provided above shall constitute
full satisfaction of the Holder’s obligation to pay the purchase price for $1,800,000 of the Option Shares pursuant to the
Option Agreement; and



 


		c)	the Holder shall deliver any original executed copy of this Note
in the Holder’s possession to the Company for destruction, provided that any failure by the Holder to deliver such original
executed copy of this Note to the Company shall not affect the automatic cancellation of this Note as provided by Section 2(a)
above.



 


		3)	Next Equity Conversion.



 


		a)	Next Equity Financing.
                                         If the Holder terminates the SPA due to the Company’s material breach of any representation,
                                         warranty or covenant thereof that remains uncured within the time frame specified in
                                         Section 7.18 of the SPA (an “SPA Termination”), the outstanding Principal
                                         Amount and any accrued but unpaid interest under this Note (the amount being converted,
                                         the “Conversion Amount”) may, at the Holder’s option, be converted,
                                         in whole or in part, into equity securities issued and sold at the initial closing of
                                         the Company’s next equity financing following such SPA Termination (the “Next
                                         Equity Securities”) in a single transaction or a series of related transactions
                                         yielding gross proceeds to the Company of at least $1,000,000 (excluding the principle
                                         amount or accrued interest or any other amounts owing on any notes, including the Notes
                                         (as defined in the Amended Note Purchase Agreement), converted into capital stock and
                                         issued therein) other than an Exempt Issuance (the “Next Equity Financing”).
                                         “Exempt Issuance” means the issuance of (a) shares of the Company’s
                                         common stock, options or other equity-based awards to employees, officers, directors,
                                         consultants or vendors of the Company for services rendered to the Company pursuant to
                                         any stock or option plan or agreement that was duly adopted for such purpose, by a majority
                                         of the non-employee members of the Board of Directors or a majority of the members of
                                         a committee of non-employee directors established for such purpose, (b) securities upon
                                         the exercise or exchange of or conversion of any Notes issued hereunder and/or other
                                         securities exercisable or exchangeable for or convertible into shares of Company’s
                                         common stock issued and outstanding on the date of this Note, provided that such securities
                                         have not been amended since the date of this Note to increase the number of such securities
                                         or to decrease the exercise price, exchange price or conversion price of such securities
                                         (other than in connection with stock splits or combinations) or to extend the term of
                                         such securities and (c) securities issued pursuant to acquisitions or strategic transactions
                                         of other assets or businesses approved by a majority of the disinterested directors of
                                         the Company or the shareholders of the Company prior to such issuance; provided that
                                         (x) the primary purpose of such issuance is not to raise capital, (y) the purchaser or
                                         acquirer of such shares of the Company’s common stock in such issuance solely consists
                                         of either (1) the actual owners of such assets or securities acquired in such merger
                                         or acquisition or (2) the shareholders, partners or members of the foregoing persons,
                                         and (z) the number or amount (as the case may be) of such shares of the Company’s
                                         common stock issued to such person by the Company shall not be disproportionate to such
                                         person’s actual ownership of such assets or securities to be acquired by the Company
                                         (as applicable).
	 	 	 



		b)	Notice of Conversion.
                                         If this Note is eligible to be converted pursuant to Section 3(a), at least fifteen (15)
                                         business days prior to the proposed initial closing of the Next Equity Financing, the
                                         Company shall deliver written notice to the Holder of this Note at the address last shown
                                         on the records of the Company for the Holder or given by the Holder to the Company for
                                         the purpose of notice or, if no such address appears or is given, at the place where
                                         the principal executive office of the Company is located, notifying the Holder of the
                                         Next Equity Financing, specifying the conversion price, the Principal Amount and accrued
                                         interest of this Note eligible to be converted, the proposed closing date of the proposed
                                         Next Equity Financing requesting the Holder notify the Company of its election to convert
                                         this Note if any, in the manner and at the place designated in the Company’s notice.
                                         A Holder’s election to convert all or a portion of this Note in connection with
                                         the Next Equity Financing must be made at least five (5) business days before the expected
                                         initial closing date of the Next Equity Financing.



 






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		c)	Terms of Conversion.
                                         The number of shares of Next Equity Securities to be issued upon such conversion
                                         shall be equal to the quotient obtained by dividing (i) the Conversion Amount by (ii)
                                         80.00% of the cash price per share of the Next Equity Securities sold in the Next Equity
                                         Financing (excluding the Participation Shares, as defined in the Amended Note Purchase
                                         Agreement), rounded down to the nearest whole share (the “Note Conversion Price”).
                                         The issuance of such shares upon such conversion shall be upon the terms and subject
                                         to the conditions applicable to the Next Equity Financing and the Company’s Certificate
                                         of Incorporation, Bylaws, and other corporate governing documents, as determined by the
                                         Company and the investors in the Next Equity Financing in their sole discretion. The
                                         Note Conversion Price, however, shall not be greater than the quotient obtained by dividing
                                         (x) $210,000,000 by (y) the total number of shares of Common Stock outstanding (assuming
                                         full conversion and exercise of all convertible or exercisable securities other than
                                         (i) the Notes (as defined in the Amended Note Purchase Agreement), (ii) other outstanding
                                         convertible notes and (iii) outstanding convertible equity securities). Upon such conversion
                                         of this Note, the Holder hereby agrees to execute and deliver to the Company all transaction
                                         documents related to the Next Equity Financing, including any purchase agreement and
                                         other ancillary agreements, with customary representations and warranties and transfer
                                         restrictions (including, without limitation, a lock-up agreement in connection with an
                                         initial public offering).



 


		4)	Change of Control. In
                                         the event of a Change of Control (as defined below) prior to the conversion of this Note
                                         or repayment in full of this Note, immediately prior to such Change of Control, this
                                         Note shall become immediately due and payable. The term “Change of Control”
                                         means (i) a sale of all or substantially all of the Company’s assets other than
                                         to an Excluded Entity (as defined below), (ii) a merger, consolidation or other capital
                                         reorganization or business combination transaction of the Company with or into another
                                         corporation, limited liability company or other entity other than an Excluded Entity,
                                         or (iii) the consummation of a transaction, or series of related transactions, in which
                                         any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities
                                         Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the
                                         “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly
                                         or indirectly, of all of the Company’s then outstanding voting securities. Notwithstanding
                                         the foregoing, a transaction shall not constitute a Change of Control if its purpose
                                         is to (A) change the jurisdiction of the Company’s incorporation, (B) create a
                                         holding company that will be owned in substantially the same proportions by the persons
                                         who hold the Company’s securities immediately before such transaction, or (C) obtain
                                         funding for the Company in a financing that is approved by the Company’s Board
                                         of Directors. An “Excluded Entity” means a corporation or other entity
                                         of which the holders of voting capital stock of the Company outstanding immediately prior
                                         to such transaction are the direct or indirect holders of voting securities representing
                                         at least a majority of the votes entitled to be cast by all of such corporation’s
                                         or other entity’s voting securities outstanding immediately after such transaction.



 






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		5)	Mechanics and Effect of Conversion.
                                         No fractional shares of the Company’s capital stock will be issued upon conversion
                                         of this Note. In lieu of any fractional share to which the Holder would otherwise be
                                         entitled, the Company will pay to the Holder in cash the amount of the unconverted Principal
                                         Amount and accrued interest under this Note that would otherwise be converted into such
                                         fractional share. Upon conversion of this Note, the Holder shall surrender this Note,
                                         duly endorsed, at the principal offices of the Company or any transfer agent of the Company.
                                         At its expense, the Company will, as soon as practicable thereafter, issue the number
                                         of Next Equity Securities to which such Holder is entitled upon such conversion, together
                                         with any other securities and property to which the Holder is entitled upon such conversion
                                         under the terms of this Note, including a check payable to the Holder for any cash amounts
                                         payable as described herein and shall deliver to such Holder, at such principal office,
                                         a notice of issuance upon request for the number of shares to which such Holder is entitled
                                         upon such conversion. Upon conversion of this Note, the Company will be forever released
                                         from all of its obligations and liabilities under this Note with regard to that portion
                                         of the principal amount and accrued interest being converted including (without limitation)
                                         the obligation to pay such portion of the principal amount and accrued interest.



 


		6)	Payment; Prepayment. All
                                         payments shall be made in lawful money of the United States of America at such place
                                         as the Holder hereof may from time to time designate in writing to the Company. Payment
                                         shall be credited first to collection costs, if any, then the accrued interest then due
                                         and payable and the remainder shall be applied to principal. The Company may prepay this
                                         Note at any time without penalty only upon written consent of the Holder.



 


		7)	Stockholders, Officers and Directors
                                         Not Liable. In no event shall any stockholder, officer or director of the Company
                                         be liable for any amounts due or payable pursuant to this Note.



 


		8)	Subordination.



 


		a)	The indebtedness evidenced by
                                         this Note is hereby expressly subordinated, to the extent and in the manner hereinafter
                                         set forth, in right of payment to the prior payment in full of all of the Company’s
                                         Senior Indebtedness. The Holder further agrees to execute a form of subordination agreement,
                                         as requested by any current or future lender to the Company, to effect the foregoing
                                         subordination. “Senior Indebtedness” shall mean the principal of and
                                         unpaid interest and premium, if any, on (i) indebtedness of the Company or with respect
                                         to which the Company is a guarantor, whether outstanding on the date hereof or hereafter
                                         created, to banks, insurance companies or other lending or thrift institutions regularly
                                         engaged in the business of lending money, whether or not secured, (ii) any deferrals,
                                         renewals or extensions or any debentures, notes or other evidence of indebtedness issued
                                         in exchange for such Senior Indebtedness, (iii) those certain secured convertible promissory
                                         notes issued by the Company pursuant to the Secured Convertible Promissory Note and Warrant
                                         Purchase Agreement dated on May 27, 2016.



 


		b)	Upon any receivership, assignment for the benefit of creditors, bankruptcy, reorganization, or arrangement which creditors
(whether or not pursuant to bankruptcy or other insolvency laws), sale of all or substantially all of the assets, dissolution,
liquidation, or any other marshaling of the assets and liabilities of the Company or in the event this Note shall be declared due
and payable, (i) no amount shall be paid by the Company, whether in cash or property in respect of the principal of or interest
on this Note at the time outstanding, unless and until the full amount of any Senior Indebtedness then outstanding shall be paid
in full, and (ii) no claim or proof of claim shall be filed with the Company by or on behalf of the holder of this Note which shall
assert any right to receive any payments in respect of the principal of and interest on this Note except subject to the payment
in full all of the Senior Indebtedness then outstanding.



 


		c)	If an event of default has occurred with respect to any Senior Indebtedness, permitting the holder thereof to accelerate the
maturity thereof, then unless and until such event of default shall have been cured or waived or shall have ceased to exist, or
all Senior Indebtedness shall have been paid in full, no payment shall be made in respect of the principal of or interest on this
Note.



 


		d)	Nothing contained in the preceding paragraphs shall impair, as between the Company and the Holder, the obligation of the Company,
which is absolute and unconditional, to pay to the Holder hereof the principal hereof and interest hereon as and when the same
shall become due and payable, or shall prevent the Holder, upon default hereunder, from exercising all rights, powers and remedies
otherwise provided herein or by applicable law, all subject to the rights, if any, of the holders of Senior Indebtedness under
the preceding paragraphs to receive cash or other properties otherwise payable or deliverable to the Holder pursuant to this Note.



 






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		9)	Interest Rate Limitation.
                                         Notwithstanding anything to the contrary contained in this Note, the Amended Note
                                         Purchase Agreement, the SPA or the Option Agreement, as applicable (the “Loan
                                         Documents”), the interest paid or agreed to be paid under the Loan Documents
                                         shall not exceed the maximum rate of non-usurious interest permitted by applicable law
                                         (the “Maximum Rate”). If the Holder shall receive interest in an amount
                                         that exceeds the Maximum Rate, the excess interest shall be applied to the principal
                                         remaining owed under this Note or, if it exceeds such unpaid principal, refunded to the
                                         Company. In determining whether the interest contracted for, charged, or received by
                                         the Holder exceeds the Maximum Rate, the Holder may, to the extent permitted by applicable
                                         law, (a) characterize any payment that is not principal as an expense, fee, or premium
                                         rather than interest, (b) exclude voluntary prepayments and the effects thereof, and
                                         (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount
                                         of interest throughout the contemplated term of this Note.



 


		10)	Action
                                         to Collect on Note. If action is instituted to collect on this Note, the Company
                                         promises to pay all of each Holder’s costs and expenses, including reasonable attorney’s
                                         fees, incurred in connection with such action.



 


		11)	Loss
                                         of Note. Upon receipt by the Company of evidence satisfactory to it of the loss,
                                         theft, destruction or mutilation of this Note or any Note exchanged for it, and indemnity
                                         satisfactory to the Company (in case of loss, theft or destruction) or surrender and
                                         cancellation of such Note (in the case of mutilation), the Company will make and deliver
                                         in lieu of such Note a new Note of like tenor.



 


		12)	Miscellaneous.



 


		a)	Governing
                                         Law; Venue. The validity, interpretation, construction and performance of this
                                         Note, and all acts and transactions pursuant hereto and the rights and obligations of
                                         the Company and Holder shall be governed, construed and interpreted in accordance with
                                         the laws of the State of California, without giving effect to principles of conflicts
                                         of law. Venue for any legal action under this Note shall be in the state or federal courts
                                         located in the City of Los Angeles in the State of California.



 


		b)	Entire
                                         Agreement. This Note, together with the Amended Note Purchase Agreement, the
                                         SPA, the Option Agreement and the documents referred to therein, constitute the entire
                                         agreement and understanding between the Company and the Holder relating to the subject
                                         matter herein and supersede all prior or contemporaneous discussions, understandings
                                         and agreements, whether oral or written between them relating to the subject matter hereof.



 


		c)	Amendments
                                         and Waivers. Any term of this Note may be amended only with the written consent
                                         of the Company and the Holder. Any amendment or waiver effected in accordance with this
                                         Section 12(c) shall be binding upon the Company, the Holder and each transferee of the
                                         Note or any portion thereof.



 






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		d)	Successors and Assigns.
                                         The terms and conditions of this Note shall inure to the benefit of and be binding
                                         upon the respective successors and assigns of the Company and the Holder. Notwithstanding
                                         the foregoing, the Holder may not assign, pledge, or otherwise transfer this Note without
                                         the prior written consent of the Company except pursuant to the exercise of rights by
                                         the holder(s) of Helios’ senior secured convertible notes holding a security interest
                                         in Helios’ assets. Subject to the preceding sentence, this Note may be transferred
                                         only upon surrender of the original Note for registration of transfer, duly endorsed,
                                         or accompanied by a duly executed written instrument of transfer in form satisfactory
                                         to the Company. Thereupon, a new note for the same principal amount and interest will
                                         be issued to, and registered in the name of, the transferee. Interest and principal are
                                         payable only to the registered holder of this Note.



 


		e)	Notices.
                                         Any notice, demand or request required or permitted to be given under this Note shall
                                         be in writing and shall be deemed sufficient when delivered personally or by overnight
                                         courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified
                                         or registered mail with postage prepaid, addressed to the party to be notified at such
                                         party’s address as set forth on the signature page, as subsequently modified by
                                         written notice, or if no address is specified on the signature page, at the most recent
                                         address set forth in the Company’s books and records.



 


		f)	Counterparts.
                                         This Note may be executed in any number of counterparts, each of which when so executed
                                         and delivered shall be deemed an original, and all of which together shall constitute
                                         one and the same instrument.



 


[Signature Page Follows]


 






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IN WITNESS WHEREOF, the parties have
executed this Subordinated Convertible Promissory Note as of the date first set forth above.


 


	 	THE COMPANY:
	 	 
	 	MOVIEPASS INC.
	 	 
	 	By:	/s/ J Mitchell Lowe
	 	 	(Signature)
	 	Name:	J Mitchell Lowe
	 	Title:	CEO
	 	Address:	175 Varick, NY, NY 10014


 


AGREED TO AND ACCEPTED:


 


THE HOLDER:


 


	HELIOS AND MATHESON ANALYTICS INC.	 
	 	 
	By:	/s/ Stuart Benson	 
	 	(Signature)	 
	Name:	Stuart Benson	 
	Title:	CFO	 
	Address:	350 Fifth Avenue Suite #7520

New York, NY 10118