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


 


	$12,000,000	Issue
    Date: December 11, 2017


 


For
value received, Helios and Matheson Analytics Inc., a Delaware corporation (the “Company”), promises to pay
to MoviePass Inc., a Delaware corporation (the “Holder”), the principal sum of Twelve Million Dollars ($12,000,000),
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, as contemplated by Subsection 1.1(c)(i) of that certain Securities Purchase Agreement, dated August
15, 2017, as amended on October 6, 2017, and further amended on December 11, 2017, between the Company and the Holder, which is
subject to the Waiver Agreement, dated November 6, 2017, between the Company and the Holder (collectively, the “SPA”).
Capitalized terms not otherwise defined herein have the meaning given them in the SPA. This Note, which is referred
to as the Helios Convertible Note in the SPA, 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 Issue 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)	Automatic
                                         Conversion. Upon the later of (i) receipt of
                                         Helios Stockholder Approval and (ii) the date on which all convertible notes of the Holder
                                         outstanding prior to Closing have been cancelled, extinguished or otherwise exchanged
                                         for shares of Common Stock: 



 





	 	a)	the
entire unpaid and outstanding principal amount and any accrued unpaid interest thereon under this Note shall convert automatically
upon the Company obtaining the Helios Stockholder Approval, without any further action by the Company or the Holder required,
into an aggregate of 4,000,001 shares of Helios Common Stock, and, at the Company’s expense, the Company shall cause its
transfer agent to record such issuance in book-entry (uncertificated) form and provide documentary evidence of such issuance to
the Holder no later than five (5) business days following the Company obtaining the Helios Stockholder Approval; and







 






    	 		 



     


    

 


	 	b)	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 conversion
of this Note as provided by Section 2(a) above.






 


		3)	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 the Holder and any
                                         other 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.



 


		4)	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.



 


		5)	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.



 


		6)	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 convertible promissory notes issued by the Company to institutional investors
                                         on August 16, 2017 and November 7, 2017 and outstanding immediately prior to the Issue
                                         Date.



 






    	 	2	 



     


    

 


		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.



 


		7)	Interest
                                         Rate Limitation. Notwithstanding anything to the contrary contained in this Note
                                         or the SPA, 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.



 


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



 


		9)	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.



 


		10)	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 New York, without giving effect to principles of conflicts of
                                         law. Venue for any legal action under this Note shall be state courts of New York or
                                         the United States District Court for the Southern District of New York.



 






    	 	3	 



     


    

 


		b)	Entire
                                         Agreement. This Note, together with the SPA, 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 10(c) shall be binding upon the Company, the Holder and each transferee of the
                                         Note or any portion thereof.



 


		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. 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]


 




    	 	4	 



     


    


 


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


 


	 	THE
    COMPANY:
	 	 	 
	 	HELIOS
    AND MATHESON ANALYTICS INC.
	 	 	 
	 	By:
    	/s/
    Theodore Farnsworth
	 		(Signature)
	 	Name:
    	Theodore Farnsworth
	 	Title:
    	Chief
    Executive Officer



 


	 	Address:
    	350
    Fifth Avenue Suite #7520
	 	 	New
    York, NY 10118


 


	AGREED TO AND ACCEPTED:	 
	 	 	 
	THE
    HOLDER:	 
	 	 	 
	MOVIEPASS INC.	 
	 	 	 
	By:	/s/
    J Mitchell Lowe	 
	 	(Signature)	 
	Name:
    	J
    Mitchell Lowe	 
	Title:
    	CEO	 



 


	Address:
    	175
    Varick, NY, NY 10014	 


 


 


 


[Signature Page to the Helios Subordinated Convertible Promissory Note]