Exhibit 10.2


 





NOTE
PURCHASE AGREEMENT


 


THIS
NOTE PURCHASE AGREEMENT (this “Agreement”), dated as of December 11, 2017, is entered into by and among
Christopher Kelly, an individual (“Seller”), Helios and Matheson Analytics Inc., a Delaware corporation (“Buyer”),
and, for purposes of Sections 6 and 8 of this Agreement only, MoviePass Inc., a Delaware corporation (the “Company”).


 


RECITALS


 


WHEREAS,
Seller is the holder of those certain convertible promissory notes set forth on Schedule A attached hereto, issued by the Company
to Seller in the aggregate principal amount of $1,000,000 (the “Transferred Notes”);


 


WHEREAS,
in accordance with the terms and conditions of that certain Securities Purchase Agreement, dated August 15, 2017, as amended on
October 6, 2017 and December 11, 2017, by and between Buyer and the Company (as amended, the “SPA”), which
is subject to the Waiver Agreement, dated November 6, 2017, Buyer agreed to purchase the Transferred Notes from Seller within
two business days after the closing of the transactions contemplated by the SPA (such date, the “Effective Date”);
and


 


WHEREAS,
Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, the Transferred Notes, subject to the terms and conditions
set forth herein.


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:


 


		1.	Purchase
                                         and Sale. Subject to the terms and conditions set forth herein, on the Effective
                                         Date, Seller shall sell, transfer and assign to Buyer, and Buyer shall purchase from
                                         Seller, all of Seller’s right, title and interest in and to the Transferred Notes.
                                         The aggregate purchase price for the Transferred Notes shall be $1,000,000 (the “Purchase
                                         Price”).



 


		2.	Deliverables.
                                         On the Effective Date:



 


		(a)	Seller
                                         shall deliver to the Company the Transferred Notes and all appropriate instruments of
                                         transfer, duly executed in blank, necessary to transfer the Transferred Notes from Seller
                                         to Buyer free and clear of all Encumbrances (as defined herein).



 


		(b)	Buyer
                                         shall deliver to Seller the Purchase Price by wire transfer of immediately available
                                         funds to the account that has been designated in writing by Seller to Buyer.



 






     


     


    




 


		3.	Representations
                                         and Warranties of Seller. Seller hereby represents and warrants to Buyer as follows:



 


		(a)	Seller
                                         has all requisite power and authority to execute and deliver this Agreement, to carry
                                         out his obligations hereunder, and to consummate the transactions contemplated hereby.
                                         This Agreement has been duly executed and delivered by Seller and (assuming due execution
                                         and delivery by Buyer) constitutes Seller’s legal, valid and binding obligation,
                                         enforceable against Seller in accordance with its terms except as such enforceability
                                         may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidity
                                         or similar laws relating to or affecting generally the enforcement of creditors’
                                         rights and remedies or by other equitable principles of general application.



 


		(b)	The
                                         Transferred Notes are fully paid and non-assessable, and are owned of record and beneficially
                                         solely by Seller, free and clear of all liens, pledges, security interests, charges,
                                         claims, encumbrances, agreements, options, voting trusts, proxies and other arrangements
                                         or restrictions of any kind (“Encumbrances”).



 


		(c)	The
                                         execution, delivery and performance by Seller of this Agreement do not conflict with,
                                         violate or result in the breach of, or create any Encumbrance on the Transferred Notes
                                         pursuant to, any agreement, instrument, order, judgment, decree, law or governmental
                                         regulation to which Seller is a party or is subject or by which the Transferred Notes
                                         are bound.



 


		(d)	There
                                         are no actions, suits, claims, investigations or other legal proceedings pending or,
                                         to the knowledge of Seller, threatened against or by Seller that challenge or seek to
                                         prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.



 


		(e)	Seller,
                                         either alone or together with his representatives (if any), has such knowledge, sophistication
                                         and experience in business and financial matters so as to be capable of evaluating the
                                         merits and risks of the transactions contemplated by this Agreement, and has so evaluated
                                         the merits and risks of such transactions.



 


		(f)	No
                                         broker, finder or investment banker is entitled to any brokerage, finder’s or other
                                         fee or commission in connection with the transactions contemplated by this Agreement
                                         based upon arrangements made by or on behalf of Seller.



 


		4.	Representation
                                         and Warranties of Buyer. Buyer hereby represents and warrants to Seller as follows:



 


		(a)	Buyer
                                         has all requisite power and authority to execute and deliver this Agreement, to carry
                                         out its obligations hereunder, and to consummate the transactions contemplated hereby.
                                         Buyer has obtained all necessary approvals for the execution and delivery of this Agreement,
                                         the performance of its obligations hereunder, and the consummation of the transactions
                                         contemplated hereby. This Agreement has been duly executed and delivered by Buyer and
                                         (assuming due authorization, execution and delivery by Seller) this Agreement constitutes
                                         a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance
                                         with its terms except as such enforceability may be limited by applicable bankruptcy,
                                         insolvency, reorganization, moratorium, liquidity or similar laws relating to or affecting
                                         generally the enforcement of creditors’ rights and remedies or by other equitable
                                         principles of general application.



 






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		(b)	No
                                         governmental, administrative or other third party consents or approvals are required
                                         by or with respect to Buyer in connection with the execution and delivery of this Agreement
                                         and the consummation of the transactions contemplated hereby.



 


		(c)	There
                                         are no actions, suits, claims, investigations or other legal proceedings pending or,
                                         to the knowledge of Buyer, threatened against or by Buyer that challenge or seek to prevent,
                                         enjoin or otherwise delay the transactions contemplated by this Agreement.



 


		(d)	Buyer,
                                         either alone or together with its representatives (if any), has such knowledge, sophistication
                                         and experience in business and financial matters so as to be capable of evaluating the
                                         merits and risks of the transactions contemplated by this Agreement, and has so evaluated
                                         the merits and risks of such transactions.



 


		(e)	No
                                         broker, finder or investment banker is entitled to any brokerage, finder’s or other
                                         fee or commission in connection with the transactions contemplated by this Agreement
                                         based upon arrangements made by or on behalf of such Buyer.



 


		5.	Independent
                                         Analysis. Each of Buyer and Seller acknowledges that such party understands the transactions
                                         contemplated by this Agreement and that such party has had the opportunity to review
                                         this Agreement and the transactions contemplated hereby with such party’s own legal
                                         counsel, tax advisors and other advisors. Each Buyer and Seller is relying solely on
                                         such party’s own counsel and advisors and not on any statements or representations
                                         of the other party, the Company or of their respective representatives or agents for
                                         legal or other advice with respect to the transactions contemplated by this Agreement.



 


		6.	Consent
                                         to Transfer of the Transferred Notes. In accordance with Section 11(d) of each of
                                         the Transferred Notes, the Company hereby consents to Seller’s assignment and transfer
                                         of the Transferred Notes to Buyer in accordance with the terms and conditions of this
                                         Agreement.



 


		7.	Survival.
                                         All representations and warranties contained herein shall survive the execution and delivery
                                         of this Agreement and the Effective Date.



 


		8.	Further
                                         Assurances. Following the Effective Date, each of Buyer, Seller and the Company shall
                                         execute and deliver such additional documents, instruments, conveyances and assurances,
                                         and take such further actions as may be reasonably required to carry out the provisions
                                         hereof and give effect to the transactions contemplated by this Agreement.



 


		9.	Expenses.
                                         All costs and expenses incurred in connection with this Agreement and the transactions
                                         contemplated hereby shall be paid by the party incurring such costs and expenses.



 


		10.	Notices.
                                         All notices, requests, consents, claims, demands, waivers and other communications hereunder
                                         (each, a “Notice”) shall be in writing and addressed to the parties
                                         at the addresses set forth on the first page of this Agreement or on the books and records
                                         of the Company (or to such other address that may be designated by the receiving party
                                         from time to time in accordance with this section). All Notices shall be delivered by
                                         personal delivery, nationally recognized overnight courier (with all fees pre-paid),
                                         facsimile or e-mail of a .PDF document (with confirmation of transmission) or certified
                                         or registered mail (in each case, return receipt requested, postage prepaid). Except
                                         as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt
                                         by the receiving party, and (b) if the party giving the Notice has complied with
                                         the requirements of this Section.



 






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		11.	Entire
                                         Agreement. This Agreement constitutes the sole and entire agreement of the parties
                                         hereto with respect to the purchase of the Transferred Notes by Buyer from Seller, and
                                         supersedes all prior and contemporaneous understandings, agreements, representations
                                         and warranties, both written and oral, with respect to such subject matter.



 


		12.	Successor
                                         and Assigns. This Agreement shall be binding upon and shall inure to the benefit
                                         of the parties hereto and their respective successors and assigns.



 


		13.	Amendment
                                         and Modification; Waiver. This Agreement may only be amended, modified or supplemented
                                         by an agreement in writing signed by each party hereto. No waiver by any party of any
                                         of the provisions hereof shall be effective unless explicitly set forth in writing and
                                         signed by the party so waiving. No failure to exercise, or delay in exercising, any rights,
                                         remedy, power or privilege arising from this Agreement shall operate or be construed
                                         as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power
                                         or privilege hereunder preclude any other or further exercise thereof or the exercise
                                         of any other right, remedy, power or privilege.



 


		14.	Severability.
                                         If any term or provision of this Agreement is invalid, illegal or unenforceable in any
                                         jurisdiction, such invalidity, illegality or unenforceability shall not affect any other
                                         term or provision of this Agreement or invalidate or render unenforceable such term or
                                         provision in any other jurisdiction. If any court determines that any term or other provision
                                         in this Agreement is invalid, illegal or unenforceable, it is the parties’ intention
                                         that such court shall have the power to modify this Agreement so as to effect the original
                                         intent of the parties as closely as possible to the maximum extent permitted by applicable
                                         law.



 


		15.	Governing
                                         Law; Submission to Jurisdiction. This Agreement shall be construed in accordance
                                         with the laws of the State of New York, without regard to the principles of conflicts
                                         of laws that would result in the application of the laws of another jurisdiction. The
                                         parties further agree that any action between them shall be heard in New York City, New
                                         York, and expressly consent to the jurisdiction and venue of the state and federal courts
                                         sitting in New York City, New York, for the adjudication of any civil action asserted
                                         pursuant to this Agreement.



 


		16.	Interpretation.
                                         The words “this Agreement,” “herein,” “hereby,” “hereunder”
                                         and “hereof,” and words of similar import, refer to this Agreement as a whole
                                         and not to any particular section, subsection or other subdivision unless expressly limited.
                                         All references to “$” shall be deemed references to United States Dollars.
                                         Titles appearing at the beginning of any section, subsection or other subdivision contained
                                         in this Agreement are for convenience only, do not constitute any part of this Agreement,
                                         and shall be disregarded in construing the language hereof. If an ambiguity, question
                                         of intent or question of interpretation arises, this Agreement must be construed as if
                                         drafted jointly by the parties hereto, and there must not be any presumption, inference
                                         or conclusion drawn against either party by virtue of the fact that its representatives
                                         have authored this Agreement or any of its terms.



 


		17.	Counterparts.
                                         This Agreement may be executed in counterparts, each of which shall be deemed an original,
                                         but all of which together shall be deemed to be one and the same agreement. A signed
                                         copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission
                                         shall be deemed to have the same legal effect as delivery of an original signed copy
                                         of this Agreement.



 


[SIGNATURE
PAGE FOLLOWS]





 






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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.





 





	 	By: 	/s/ Christopher Kelly
	 		Name: Christopher Kelly




 


[Kelly Signature Page to Note Purchase Agreement]


 






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







 





[HMNY Signature Page to Note Purchase Agreement]







 






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	 	MOVIEPASS INC.
	 	 
	 	By:	/s/ Mitch Lowe
	 	 	Name: Mitch Lowe
	 	 	Title:   Chief Executive Officer
















 


[MoviePass Signature Page to Note Purchase Agreement]


 






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SCHEDULE
A


 


List
of Transferred Notes


 


	Note
    Holder	 	Principal
    Amount	 	 	Interest
    Rate	 	Issuance Date
	Secured
    Promissory Note
	 
	Christopher
    Kelly	 	$	250,000.00	 	 	 	5.000%	 	05/26/16



 








	Note Holder	 	 	Principal Amount	 	 	Interest Rate	 	 	Issuance Date	 
	Subordinated Convertible Notes	 
	 	 
	Christopher Kelly	 	$	75,000.00	 	 	5.000%	 	 	10/05/16	 
	Christopher Kelly	 	$	75,000.00	 	 	5.000%	 	 	10/12/16	 
	Christopher Kelly	 	$	50,000.00	 	 	5.000%	 	 	10/21/16	 
	Christopher Kelly	 	$	50,000.00	 	 	5.000%	 	 	12/06/16	 
	Christopher Kelly	 	$	100,000.00	 	 	5.000%	 	 	1/17/17	 
	Christopher Kelly	 	$	50,000.00	 	 	5.000%	 	 	02/23/17	 
	Christopher Kelly	 	$	50,000.00	 	 	5.000%	 	 	03/02/17	 
	Christopher Kelly	 	$	300,000.00	 	 	5.000%	 	 	05/03/17	 




  


 


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