Exhibit 10.1


 


SUBSCRIPTION AGREEMENT


 


THIS SUBSCRIPTION AGREEMENT
(this “Agreement”) is entered into as of April 16, 2018, by and between MoviePass Inc., a Delaware corporation (the
“Corporation”), and Helios and Matheson Analytics Inc., a Delaware corporation (the “Subscriber”).


 


Recitals:


 


WHEREAS, from February
27, 2018 through April 13, 2018 the Subscriber has advanced $35,000,000 in cash to the Corporation (the “Advance”);


 


WHEREAS, in lieu of
repayment of the Advance by the Corporation to the Subscriber in cash, the Subscriber desires to purchase, and the Corporation
desires to sell and issue to the Subscriber on the date hereof, shares of the Corporation’s common stock, $0.0001 par value
per share (“Common Stock”), as provided herein;


 


NOW, THEREFORE, in
consideration of the foregoing, and of the mutual provisions and covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Corporation and the Subscriber, intending to be legally bound,
hereby agree as follows:


 


1.            Issuance
of Shares. In consideration of the aggregate purchase price of $35,000,000 (the “Purchase Price”), the Corporation
hereby issues to the Subscriber 29,198,298 shares of Common Stock of the Corporation (the “Purchased Shares”) based
on an agreed $295,525,000 pre-money valuation of the Corporation as of March 31, 2018. In addition to the Purchased Shares, the
Corporation shall issue to the Subscriber on the date of this Agreement, without payment of any additional consideration by the
Subscriber, such number of shares of Common Stock as is necessary to cause the Subscriber to own 91.8% of the total outstanding
shares of Common Stock (on a fully-diluted basis, but excluding any outstanding options to purchase shares of Common Stock and
warrants to purchase shares of the Corporation’s capital stock) immediately after giving effect to the transactions contemplated
by this Agreement (such shares to be issued by the Corporation to the Subscriber pursuant to the Subscriber’s right to anti-dilution
protection pursuant to that certain securities purchase agreement, dated as of August 15, 2017, as subsequently amended, by and
between the Corporation and the Subscriber (the “Additional Shares”)). The Purchased Shares and the Additional Shares
are sometimes referred to herein collectively as the “Shares”. The Subscriber shall pay the Purchase Price with the
Advance, which such Advance shall be deemed repaid by the Corporation contemporaneously with the execution and delivery of this
Agreement and delivery of the Shares to the Subscriber.


 


2.            Representations
and Warranties of the Subscriber. The Subscriber hereby represents, warrants and covenants to the Corporation as follows:


 


a.       The
Subscriber is aware of the Corporation’s business affairs and financial condition and has acquired sufficient information about
the Corporation to reach an informed and knowledgeable decision to acquire the Shares. The Subscriber is capable of evaluating
the merits and risks of the Subscriber’s investment in the Corporation and has the capacity to protect the Subscriber’s own interests.
The Subscriber acknowledges that an investment in the Corporation is highly speculative and entails a substantial degree of risk
and the Subscriber is in a position to lose the entire amount of such investment.


 






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b.       The
Subscriber is acquiring the Shares for investment for the Subscriber’s own account, not as a nominee or agent, and not with the
view to, or for resale in connection with, any distribution thereof within the meaning of the Securities Act of 1933, as amended
(the “Securities Act”), and the Subscriber has no present intention of selling, granting any participation in, or otherwise
distributing the Shares.


 


c.       The
Subscriber does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person, or to any third person, with respect to any of the Shares. The Subscriber understands that the Shares
have not been, and will not be, registered under the Securities Act by reason of a specific exemption from the registration provisions
of the Securities Act, the availability of which depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Subscriber’s representations as expressed herein. The Subscriber understands that no public market now
exists for any of the securities issued by the Corporation and that the Corporation has made no assurances that a public market
will ever exist for the Corporation’s securities.


 


d.       The
Subscriber understands that the Shares constitute “restricted securities” under the Securities Act. The Subscriber
further understands that the Shares must be held indefinitely unless they are subsequently registered under the Securities Act
or an exemption from such registration is available. The Subscriber understands that the Corporation is under no obligation to
register the Shares.


 


3.            Representations
and Warranties of the Corporation. The Corporation hereby represents, warrants and covenants to the Subscriber as follows:


 


a.        The
Corporation is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business as presently conducted. The Corporation is duly qualified to transact business
and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on the Corporation.


 


b.        As
of the date hereof, the authorized and outstanding capital of the Corporation consists of:


 


(i)       600,000,000
shares of Common Stock, of which 402,816,977 shares are issued and outstanding immediately prior to the issuance of the Shares
and of which 463,281,459 shares will be issued and outstanding immediately after the issuance of the Shares (assuming that none
of the Corporation’s outstanding options or warrants are exercised). All of the issued and outstanding shares of Common Stock
have been duly authorized, fully paid and nonassessable and issued in compliance with all applicable federal and state securities
laws. The rights, privileges and preferences of the Common Stock are as stated in the Corporation’s Amended and Restated
Certificate of Incorporation (as amended), and as provided by the General Corporation Law of the State of Delaware. The Corporation
holds no Common Stock in its treasury as of the date hereof.


 


(ii)       20,000,000
shares of preferred stock, $0.0001 par value per share (“Preferred Stock”), none of which are designated or issued
and outstanding as of the date hereof. The Corporation holds no Preferred Stock in its treasury as of the date hereof.


 


(iii)       95,000,000
shares of Common Stock reserved for issuance to officers, directors, employees and consultants of the Corporation pursuant to its
2011 Equity Incentive Plan (“Stock Plan”). Of such reserved shares of Common Stock, 319,150 shares have been issued
pursuant to restricted stock purchase agreements or option exercises and options to purchase 73,348,746 shares have been granted
and are outstanding, and 21,651,254 shares of Common Stock are reserved for issuance pursuant to the Stock Plan and remain available
for issuance thereunder.


 






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(iv)       7,074,131
shares of Common Stock issuable upon the exercise of outstanding warrants to purchase Common Stock.


 


c.        The
Corporation has all requisite corporate power and corporate authority to enter into and deliver this Agreement, to perform its
obligations under this Agreement and to consummate the transactions contemplated by this Agreement. This Agreement, when executed
and delivered by the Corporation, shall constitute valid and legally binding obligations of the Corporation, enforceable against
the Corporation in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights
generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable
remedies.


 


d.        The
Shares, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement, will
be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under
the Investors’ Rights Agreement dated as of August 15, 2017 by and among the Corporation, the Subscriber and certain other
stockholders of the Corporation, applicable state and federal securities laws and liens or encumbrances created by or imposed by
the Subscriber.


 


e.        No
consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal,
state or local governmental authority is required on the part of the Corporation in connection with the consummation of the transactions
contemplated by this Agreement.


 


4.            Tax
Consequences. The Subscriber has reviewed with the Subscriber’s own tax advisors the federal, state, local and foreign tax
consequences of this investment and the transactions contemplated by this Agreement. The Subscriber is relying solely on such advisors
and not on any statements or representations of the Corporation or any of its agents.


 


5.            Applicable
Law; Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware
as they apply to contracts entered into and wholly to be performed within such state by residents thereof. Venue for any legal
action under this Agreement shall be in the state or federal courts located in the Borough of Manhattan in the City of New York,
New York.


 


6.            General
Provisions.


 


a.        This
Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes in their entirety
all prior undertakings and agreements of the Corporation and the Subscriber with respect to the subject matter hereof.


 


b.        Either
party’s failure to enforce any provision of this Agreement shall not in any way be construed as a waiver of any such provision,
nor prevent that party thereafter from enforcing each and every provision of this Agreement. The rights granted both parties hereunder
are cumulative and shall not constitute a waiver of either party’s right to assert all other legal remedies available to it under
the circumstances.


 


c.        The
parties agree upon request by the other party to execute any further documents or instruments necessary or desirable to carry out
the purposes or intent of this Agreement.


 


7.            Counterparts.
This Agreement may be executed in counterparts and multiple originals and by facsimile or other electronic transmission, each of
which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.


 


[Signature page follows]


 




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IN WITNESS WHEREOF, the parties hereto have
caused this Subscription Agreement to be duly executed as of the date first set forth above.


 


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


 








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