Helios & Matheson Analytics Inc. (Form: 8-K, Received: 12/11/2017 09:03:26)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 11, 2017

HELIOS AND MATHESON ANALYTICS INC.

(Exact name of Registrant as specified in charter)

Delaware		0-22945		13-3169913
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification Number)

Empire State Building

350 5 ^th Avenue

New York, New York 10118

(Address of principal executive offices)

Registrant’s telephone number, including area code: (212) 979-8228

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions (see General Instruction A.2 below).

☐		Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☒		Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐		Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)).

☐		Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13(e)-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01

Entry into a Material Definitive Agreement.

Completion of the MoviePass Transaction

On December 11, 2017, Helios and Matheson Analytics Inc. (the “Company” or “HMNY”) completed its acquisition of a majority interest in MoviePass Inc., a Delaware corporation (“MoviePass”) (such acquisition, the “MoviePass Transaction”), pursuant to the previously announced Securities Purchase Agreement, dated as of August 15, 2017, between HMNY and MoviePass (as amended, the “MoviePass SPA”), and the Investment Option Agreement, dated October 11, 2017, between HMNY and MoviePass (the “MoviePass Option Agreement”).

At the closing of the MoviePass Transaction (the “Closing”), MoviePass issued HMNY 81,542,016 shares of its common stock representing 51.71% of its outstanding common stock in exchange for the following consideration: (1) a subordinated convertible promissory note in the principal amount of $12,000,000 (the “Helios Convertible Note”), which is convertible into shares of HMNY’s common stock, as further described below; (2) a $5,000,000 promissory note issued to MoviePass (the “Helios Note”); and (3) the cancellation of a convertible promissory note issued by MoviePass to HMNY in an aggregate principal amount of $11,500,000.

In addition, pursuant to the terms of the Note Purchase Agreement, dated as of December 11, 2017 (the “Kelly Note Purchase Agreement”), among HMNY, MoviePass and Christopher Kelly, a director, stockholder and noteholder of MoviePass (“Kelly”), HMNY agreed to purchase from Kelly, within two business days after the Closing, MoviePass convertible promissory notes in an aggregate principal amount of $1,000,000 (the “Kelly Notes”) for $1,000,000 in cash, which will automatically convert into 6,813,178 shares of MoviePass’ common stock amounting to an additional 2% of the outstanding shares of MoviePass common stock on a post-transaction basis within two business days after the Closing, pursuant to a Note Conversion Agreement to be entered into between HMNY and MoviePass (the “Kelly Note Conversion Agreement”).

Pursuant to the MoviePass Option Agreement, upon the Closing, the outstanding convertible promissory notes issued by MoviePass to HMNY (each a “MoviePass Option Note”) in an aggregate principal amount of $12,150,000 as of the Closing date, which includes additional option exercises by HMNY on December 5, 2017 and December 7, 2017 in an aggregate amount of $2,800,000, were cancelled in exchange for 15,789,764 additional shares of MoviePass’ common stock.

Upon completion of the above issuances, HMNY will own approximately 57.8% of MoviePass’ issued and outstanding common stock, which may be increased in connection with additional option exercises following Closing in accordance with the terms of the MoviePass Option Agreement.

Amendment No. 2 to the MoviePass SPA and Other Ancillary Agreements

Immediately prior to the completion of the MoviePass Transaction, HMNY and MoviePass entered into a second amendment to the MoviePass SPA (“Amendment No. 2”), pursuant to which, in lieu of issuing 4,000,001 unregistered shares of HMNY common stock to MoviePass at the Closing (the “Helios Shares”), HMNY agreed to issue the Helios Convertible Note to MoviePass, which will convert automatically upon HMNY’s receipt of approval of its stockholders relating to the issuance of the Helios Shares as required by and in accordance with Nasdaq Listing Rule 5635 (the “Stockholder Approval”) into 4,000,001 unregistered shares of HMNY common stock (the “Conversion Shares”). If MoviePass fails to list its common stock on The Nasdaq Stock Market or the New York Stock Exchange by March 31, 2018, 666,667 of the Conversion Shares will be subject to forfeiture by MoviePass, in HMNY’s sole discretion.

Pursuant to the terms of a voting agreement (the “Voting Agreement”) entered into at the Closing among HMNY, MoviePass and 5% or greater stockholders of MoviePass, subject to applicable rules and regulations, the Chief Executive Officer of HMNY has the right to designate two directors to the board of directors of MoviePass and the Chief Executive Officer of MoviePass has the right to designate three directors of the board of directors of MoviePass. In accordance with the terms of the Voting Agreement, each party is required to vote in favor of such designees.

At the Closing, HMNY, MoviePass and certain stockholders of MoviePass, entered into an investors’ rights agreement (the “Investors’ Rights Agreement”), which provides such investors with certain information rights, including access to financial information of MoviePass and inspections rights. In addition, HMNY will receive the right to approve certain MoviePass corporate actions and will require MoviePass to register the shares of its common stock issued to HMNY with the U.S. Securities and Exchange Commission (the “SEC”).

At the Closing, HMNY and MoviePass each entered into a lock-up agreement (with respect to HMNY, the “HMNY Lock-Up Agreement” and with respect to MoviePass, the “MoviePass Lock-Up Agreement” and collectively, the “Lock-Up Agreements”). Pursuant to the Lock-Up Agreements, each of MoviePass and HMNY agreed that from the date of the Lock-Up Agreement and ending on the later of one (1) year from the date thereof or six (6) months after the date on which shares of MoviePass’ common stock begin trading on the Nasdaq Stock Market or the New York Stock Exchange, neither MoviePass nor HMNY (i) shall sell, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of, or (iii) permit to exist any security interest, lien, claim, pledge, option, right of first refusal, agreement or limitation on MoviePass’ or HMNY’s voting rights, engage in any hedging or other transaction which is designed to, or which reasonably could be expected to lead to or result in a sale or disposition of, the shares of MoviePass owned by HMNY or the Conversion Shares, when issued.

At the Closing, HMNY and MoviePass also entered into a voting proxy agreement, pursuant to which MoviePass granted a proxy in favor of Theodore Farnsworth, in his capacity as the Chief Executive Officer of HMNY, with respect to the Conversion Shares (the “MoviePass Voting Proxy”).

The above discussion does not purport to be a complete description of the MoviePass SPA, MoviePass Option Agreement, Amendment No. 2, the Helios Convertible Note, the Helios Note, the Kelly Note Purchase Agreement, the Kelly Note Conversion Agreement, the MoviePass Option Notice, the Voting Agreement, the Investors’ Rights Agreement, the Lock-Up Agreements, and the MoviePass Voting Proxy and is qualified in its entirety by reference to the full text of such documents, which are attached exhibits to this Current Report on Form 8-K (this “Current Report”) and incorporated herein by reference.

Item 2.01

Completion of Acquisition or Disposition of Assets.

To the extent required by this Item 2.01, the information included in Item 1.01 is incorporated herein by reference.

Item 2.03

Creation of a Direct Financial Obligation.

To the extent required by this Item 2.03, the information included in Item 1.01 about the Helios Note and the Helios Convertible Note is incorporated herein by reference.

At the Closing of the MoviePass Transaction, HMNY issued the Helios Note and the Helios Convertible Note to MoviePass. Each note accrues interest from the issuance date 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.

The principal amount of the Helios Note together with all unpaid interest is due and payable on the later of (i) the 180th calendar day following the Closing of the MoviePass Transaction and (ii) such date when MoviePass’ common stock becomes listed on the Nasdaq Stock Market or the New York Stock Exchange; provided, however, that if MoviePass’ common stock is not listed on a national exchange on or before June 1, 2018, unless otherwise extended (the “Listing Maturity Date”), then, HMNY will redeem the outstanding principal amount and accrued unpaid interest as of the Listing Maturity Date (the “Redemption Amount”) in exchange for HMNY tending to MoviePass for immediate cancellation such number of shares equal to the Redemption Amount divided by the per share price of the MoviePass shares issued to HMNY based on the Purchase Price.

While the Helios Convertible Note is outstanding, the principal amount and any accrued but unpaid interest under the Helios Convertible Note will be due and payable upon demand of MoviePass at any time after the two-year anniversary of the issuance date. The Helios Convertible Note will be immediately payable in the event of HMNY’s dissolution, bankruptcy or insolvency.

Upon the later of (i) receipt of the Stockholder Approval and (ii) the date on which all of MoviePass convertible notes outstanding prior to the Closing have been cancelled, extinguished or otherwise exchanged by HMNY for shares of MoviePass common stock, the entire unpaid and outstanding principal amount of the Helios Convertible Note and any accrued unpaid interest thereon will convert automatically, upon HMNY obtaining the Stockholder Approval, into the Conversion Shares.

In the event of a Change in Control, as defined in the Helios Convertible Note, the Helios Note shall be immediately due and payable in full. HMNY may prepay the Helios Convertible Note only with the consent of MoviePass.

The Helios Convertible Note is subordinated to Senior Indebtedness, as defined in the Helios Convertible Note.

The above discussion does not purport to be a complete description of the Helios Note and the Helios Convertible Note and is qualified in its entirety by reference to the full text of such documents, which are attached as exhibits to this Current Report and is incorporated herein by reference.

Item 3.02

Unregistered Sales of Equity Securities.

To the extent required by this Item 3.02, the information included in Items 1.01 and 2.03 about the Helios Convertible Note is incorporated herein by reference. The Company relied on Section 4(a)(2) of the Securities Act of 1933, as amended, to issue the Helios Convertible Note, inasmuch as MoviePass has received from the Company information that registration would provide and neither the Company nor any person acting on its behalf offered or sold the Helios Convertible Note by any form of general solicitation or general advertising.

Item 9.01

Financial Statements and Exhibits.

(a) Financial statements of businesses acquired. The audited financial statements of MoviePass for the years ended December 31, 2016 and 2015, are attached herewith as Exhibit 99.1. The unaudited financial statements of MoviePass for the nine months ended September 30, 2017 and September 30, 2016, are filed herewith as Exhibit 99.2.

(b) Pro forma financial information. The unaudited pro forma combined financial statements of the Company and MoviePass are attached herewith as Exhibit 99.3.

(d) Exhibits

Exhibit No.		Description

2.1(1)		MoviePass SPA (incorporated by reference to Exhibit 2.1 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
2.2		Amendment No. 1 to MoviePass SPA (incorporated by reference to Exhibit 2.2 to the Company’s Current Report on Form 8-K filed with the SEC on October 11, 2017).
2.3*		Amendment No. 2 to MoviePass SPA.
4.1*		Helios Convertible Note issued by the Company to MoviePass on December 11, 2017.
4.2		Helios Note (incorporated by reference to Exhibit 4.2 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on October 11, 2017).
4.3*		Form of MoviePass Option Note.
10.1		MoviePass Option Agreement (incorporated by reference to Exhibit 10.2 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on October 11, 2017).
10.2*		Note Purchase Agreement dated December 11, 2017 between the Company, MoviePass and Christopher Kelly.
10.3*		Note Conversion Agreement to be entered into between the Company and MoviePass.
10.4		Voting Agreement (incorporated by reference to Exhibit 10.2 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
10.5		Investors’ Rights Agreement (incorporated by reference to Exhibit 10.1 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
10.6		MoviePass Lock-Up Agreement (incorporated by reference to Exhibit 10.5 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
10.7		HMNY Lock-Up Agreement (incorporated by reference to Exhibit 10.6 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
10.9		MoviePass Voting Proxy (incorporated by reference to Exhibit 10.8 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
99.1		Audited Financial Statements of MoviePass Inc. as of December 31, 2016 and December 31, 2015 (incorporated by reference to Exhibit 99.1 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on November 30, 2017).
99.2		Unaudited Financial Statements of MoviePass Inc. for the nine months ended September 30, 2017 and September 30, 2016 (incorporated by reference to Exhibit 99.2 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on November 30, 2017).
99.3		Unaudited Pro Forma Combined Financial Statements of Helios and Matheson Analytics Inc. and MoviePass Inc. (incorporated by reference to Exhibit 99.1 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on November 30, 2017).

* Filed herewith.

(1) The schedules and similar attachments have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The descriptions of the omitted schedules and similar attachments are contained within the MoviePass SPA. HMNY hereby agrees to furnish a copy of any such omitted schedule or similar attachment to the SEC upon request.

Cautionary Statement on Forward-looking Information

Certain information in this communication contains “forward-looking statements” about HMNY and MoviePass within the meaning of the Private Securities Litigation Reform Act of 1995 or under Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (collectively, “forward-looking statements”), that may not be based on historical fact, but instead relate to future events. Forward-looking statements are generally identified by words such as “projects,” “may,” “will,” “could,” “would,” “should,” “believes,” “expects,” “anticipates,” “estimates,” “intends,” “plans,” “potential” or similar expressions. Such forward-looking statements include, without limitation, statements regarding (i) the receipt of HMNY stockholder approval of the issuance of the Conversion Shares as required by and in accordance with Nasdaq Listing Rule 5635, (iii) the expected benefits to HMNY and MoviePass from completing the MoviePass Transaction and (iv) MoviePass’ business. Statements regarding future events are based on the parties’ current expectations and are necessarily subject to associated risks related to, among other things, the inability to obtain stockholder approval relating to the issuance of the Conversion Shares in a timely manner, if at all, MoviePass’ and HMNY’s continuing need for additional financing, and general economic conditions. Therefore, actual results may differ materially and adversely from those expressed in any forward-looking statements.

Such forward-looking statements are based on a number of assumptions. Although management of HMNY and MoviePass believe that the assumptions made and expectations represented by such statements are reasonable, there can be no assurance that a forward-looking statement contained herein will prove to be accurate. Actual results and developments may differ materially and adversely from those expressed or implied by the forward-looking statements contained herein and even if such actual results and developments are realized or substantially realized, there can be no assurance that they will have the expected consequences or effects.

Risk factors and other material information concerning HMNY and MoviePass are described in HMNY’s Quarterly Report on Form 10-Q filed with the SEC on November 14, 2017, in HMNY’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016 and other HMNY filings, including subsequent current and periodic reports, information statements and registration statements filed with the SEC. You are cautioned to review such reports and other filings at www.sec.gov.

Given these risks, uncertainties and factors, you are cautioned not to place undue reliance on such forward-looking statements and information, which are qualified in their entirety by this cautionary statement. All forward-looking statements and information made herein are based on HMNY’s and MoviePass’ current expectations and HMNY does not undertake an obligation to revise or update such forward-looking statements and information to reflect subsequent events or circumstances, except as required by law.

In particular, MoviePass’ $9.95 per month subscription pricing model is new. There can be no assurance that the resulting rate of increase in its subscribers from the previously announced $9.95 per month pricing model will continue or be sustained. Also, MoviePass has previously offered a one year subscription pricing model and may offer similar pricing models in the future. There can be no assurance that any rate of increase in its subscribers will result from new pricing models, and even if such an increase is achieved, that it will be sustained. Moreover, an increase in the number of MoviePass™ subscribers provides no assurance that the MoviePass™ business model will lead to profitability.

Additional Information for Stockholders of HMNY about the MoviePass Transaction between HMNY and MoviePass and Where to Find It

HMNY plans to file with the SEC and furnish its stockholders with a proxy statement in connection with the approval of the issuance of the Conversion Shares to MoviePass and security holders of HMNY are urged to read the proxy statement and the other relevant materials when they become available because such materials will contain important information about HMNY, MoviePass and their respective affiliates and such issuance and the MoviePass Transaction. The proxy statement and other relevant materials (when they become available), and any and all other documents filed by HMNY with the SEC, may be obtained free of charge at the SEC’s website at www.sec.gov.

In addition, investors may obtain a free copy of HMNY’s filings from HMNY’s website at www.hmny.com or by directing a request to: Helios and Matheson Analytics Inc., Attn: Secretary, Empire State Building, 350 Fifth Avenue, Suite 7520, New York, New York 10118, (212) 979-8228.

INVESTORS AND SECURITY HOLDERS OF HMNY ARE URGED TO READ THE PROXY STATEMENT AND THE OTHER RELEVANT MATERIALS WHEN THEY BECOME AVAILABLE BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT TO THE ISSUANCE OF THE CONVERSION SHARES TO MOVIEPASS.

Participants in the Solicitation

HMNY and its directors and executive officers may be deemed to be participants in the solicitation of proxies from the security holders of HMNY in connection with the approval of the issuance of the Conversion Shares to MoviePass. Information about those directors and executive officers of HMNY, including their ownership of HMNY securities, is set forth in its annual report on Form 10-K for the year ended December 31, 2016, which HMNY filed with the SEC on April 14, 2017, and its definitive proxy statement on Schedule 14A filed with the SEC on October 3, 2017. Investors and security holders may obtain additional information regarding the direct and indirect interests of HMNY and its directors and executive officers in the such transaction by reading the proxy statement and other public filings referred to above.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: December 11, 2017

	HELIOS AND MATHESON ANALYTICS INC.

	By:	/s/ Theodore Farnsworth
		Theodore Farnsworth, Chief Executive Officer

EXHIBIT INDEX

Exhibit No.		Description

2.1(1)		MoviePass SPA (incorporated by reference to Exhibit 2.1 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
2.2		Amendment No. 1 to MoviePass SPA (incorporated by reference to Exhibit 2.2 to the Company’s Current Report on Form 8-K filed with the SEC on October 11, 2017).
2.3*		Amendment No. 2 to MoviePass SPA.
4.1*		Helios Convertible Note issued by the Company to MoviePass on December 11, 2017.
4.2		Helios Note (incorporated by reference to Exhibit 4.2 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on October 11, 2017).
4.3*		Form of MoviePass Option Note.
10.1		MoviePass Option Agreement (incorporated by reference to Exhibit 10.2 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on October 11, 2017).
10.2*		Note Purchase Agreement dated December 11, 2017 between the Company, MoviePass and Christopher Kelly.
10.3*		Note Conversion Agreement to be entered into between the Company and MoviePass.
10.4		Voting Agreement (incorporated by reference to Exhibit 10.2 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
10.5		Investors’ Rights Agreement (incorporated by reference to Exhibit 10.1 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
10.6		MoviePass Lock-Up Agreement (incorporated by reference to Exhibit 10.5 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
10.7		HMNY Lock-Up Agreement (incorporated by reference to Exhibit 10.6 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
10.9		MoviePass Voting Proxy (incorporated by reference to Exhibit 10.8 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on August 15, 2017).
99.1		Audited Financial Statements of MoviePass Inc. as of December 31, 2016 and December 31, 2015 (incorporated by reference to Exhibit 99.1 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on November 30, 2017).
99.2		Unaudited Financial Statements of MoviePass Inc. for the nine months ended September 30, 2017 and September 30, 2016 (incorporated by reference to Exhibit 99.2 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on November 30, 2017).
99.3		Unaudited Pro Forma Combined Financial Statements of Helios and Matheson Analytics Inc. and MoviePass Inc. (incorporated by reference to Exhibit 99.1 filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on November 30, 2017).

* Filed herewith.

Exhibit 2.3

AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT

This Amendment No. 2 to Securities Purchase Agreement (the “ Amendment ”) is made and entered into as of December 11, 2017 by and between MoviePass Inc., a Delaware corporation (“ MoviePass ”), and Helios and Matheson Analytics Inc., a Delaware corporation (“ Helios ”).

WHEREAS , MoviePass and Helios are signatories to that certain Securities Purchase Agreement, dated August 15, 2017, as amended on October 6, 2017, which is subject to the Waiver Agreement, dated November 6, 2017, between MoviePass and Helios (collectively, the “ Purchase Agreement ”); and

WHEREAS , MoviePass and Helios now desire to further amend the Purchase Agreement as provided for herein.

NOW, THEREFORE , in consideration of the premises set forth above, which are incorporated in this Amendment as if fully set forth below, and the representations, warranties, covenants and agreements contained in the Purchase Agreement, and intending to be legally bound hereby, and in accordance with Section 7.11 of the Purchase Agreement, the parties hereby agree to amend the Purchase Agreement as follows:

1. Unless otherwise expressly defined herein, all capitalized terms used in this Amendment shall have the same meaning as they are defined in the Purchase Agreement.

2. Section 1.1(c)(i) of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“a convertible promissory note in the principal amount of $12,000,000 in the form agreed to by Helios and MoviePass, to be delivered by Helios to MoviePass at the Closing (the “ Helios Convertible Note ”), which shall convert automatically upon Helios obtaining the Helios Stockholder Approval (as defined in Section 6.15 below) into 4,000,001 unregistered shares of Helios Common Stock (as defined below), based on an agreed upon value of $3.00 per share, for a total agreed upon value of approximately $12,000,000 (the “ Helios Shares ”), as more particularly set forth in the Helios Convertible Note; provided , however , 666,667 of the Helios Shares (and MoviePass’ right to receive such number of Helios Shares) shall be subject to forfeiture by MoviePass, in Helios’ sole discretion, if MoviePass fails to list its Common Stock on The Nasdaq Stock Market (“ Nasdaq ”) or New York Stock Exchange (“ NYSE ”) by March 31, 2018 (the foregoing agreed upon value per share and numbers of Helios Shares are subject to appropriate adjustment in the event of any stock dividend, stock split, combination or similar recapitalization affecting the Helios Common Stock);”

3. The Helios Convertible Note shall be in the form attached as Exhibit A to this Amendment.

4. Section 1.1(c)(ii)(C) of the Purchase Agreement is hereby deleted in its entirety.

5. Section 1.2(b) of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“At the Closing, MoviePass shall deliver to Helios a certificate representing the Shares against receipt by MoviePass of the Helios Convertible Note, the Initial Cash Payment (which shall have been delivered as of the date of this Agreement) and the Helios Note.”

Page 2 of 7

6. Section 1.4(j) of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“‘ Helios Securities ’ means the Helios Convertible Note, the Helios Note and the Helios Shares.”

7. Section 2.2(b) of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“(b) Effective as of the Closing, the authorized and outstanding capital of MoviePass will consist of the following:

(i) 380,000,000 shares of Common Stock, of which 190,495,559 shares will be issued and outstanding (assuming that none of the outstanding options described in Subsection 2.2(b)(iii) or warrants described in Subsection 2.2(b)(iv) are exercised and assuming that the Outstanding Notes (as defined below) have been converted into Common Stock pursuant to their terms). All of the outstanding shares of Common Stock, when issued, will be duly authorized, fully paid and nonassessable and will be issued in compliance with all applicable federal and state securities laws. The rights, privileges and preferences of the Common Stock will be as stated in the Restated Certificate and as provided by the DGCL. MoviePass will hold no Common Stock in its treasury as of the Closing.

(ii) 20,000,000 shares of Preferred Stock, none of which will be designated or issued and outstanding as of the Closing. MoviePass will hold no Preferred Stock in its treasury as of the Closing.

(iii) 45,880,947 shares of Common Stock will be reserved for issuance to officers, directors, employees and consultants of MoviePass pursuant to the Stock Plan. Of such reserved shares of Common Stock, as of the Closing, 319,150 shares will have been issued pursuant to restricted stock purchase agreements or option exercises and options to purchase 28,096,711 shares will have been granted and will be outstanding, and all remaining shares of Common Stock reserved for issuance pursuant to the Stock Plan will remain available for issuance thereunder.

(iv) The warrants described on Subsection 2.2(a)(iv) of the Disclosure Schedule.

(v) 6,813,178 shares of Common Stock issuable upon conversion of the Kelly Note.”

8. The first sentence of Section 2.15 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“ Changes . Since June 30, 2017 there has not been, except as specifically contemplated by the Transaction Agreements, disclosed in MoviePass’ Audited Financial Statements or unaudited financial statements as delivered pursuant to Section 5.15 herein or as otherwise specifically disclosed in writing to Helios’ management prior to December 11, 2017:”

Page 3 of 7

9. Section 2.30 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“No Public Market . MoviePass understands that no public market now exists for the Helios Convertible Note or the Helios Note, and that Helios has made no assurances that a public market will ever exist for the Helios Convertible Note or the Helios Note.”

10. The second sentence of Section 3.2 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“All action on the part of the officers of Helios necessary for the execution and delivery of the Transaction Agreements to which Helios is a party, the performance of all obligations of Helios under the Transaction Agreements to which Helios is a party to be performed as of or prior to the Closing, and the issuance and delivery of the Helios Securities (other than receipt of the Helios Stockholder Approval) has been taken or will be taken prior to Closing.”

11. Section 4.1 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“ MoviePass Employment Agreements . The Board of Directors of MoviePass shall take such action as reasonably required such that, effective within thirty (30) business days following Closing, Mitch Lowe will remain appointed as Chief Executive Officer of MoviePass under a customary five (5) year employment agreement, in form and substance reasonably acceptable to Mr. Lowe, MoviePass and Helios (the “ Lowe Employment Agreement ”).”

12. New Section 4.11 shall be added to the Purchase Agreement as follows:

“4.11 Outstanding Notes and Kelly Note . Within five (5) business days of the Closing, MoviePass shall have cancelled, extinguished or otherwise exchanged for shares of Common Stock all of the Outstanding Notes. Within two (2) business day of the Closing, Helios shall have purchased the Kelly Note from Chris Kelly for $1,000,000 and MoviePass shall have agreed with Helios to convert all outstanding principal and any unpaid interest under the Kelly Note into Common Stock in accordance with the terms of the Kelly Note, provided, that in the event that the number of shares of Common Stock to be issued thereunder is less than two percent (2%) of the then outstanding shares of Common Stock of MoviePass (on a fully-diluted basis, giving effect to the payment or conversion of any notes that convert into MoviePass capital stock that are outstanding immediately prior to the Closing, but excluding any outstanding options to purchase shares of Common Stock and warrants to purchase shares of MoviePass’s capital stock and the shares of Common Stock issuable upon conversion of the Kelly Note), MoviePass hereby agrees that the Kelly Note will be convertible into such number of shares of Common Stock to provide Helios with the foregoing two percent (2%) interest under the Kelly Note (the shares of Common Stock to be issued under the Kelly Note.”

13. New Section 4.12 shall be added to the Purchase Agreement as follows:

“ Approval of Stockholders of Helios . Helios shall provide each stockholder entitled to vote at a special meeting of stockholders of Helios (the “ Helios Stockholder Meeting ”), which shall be promptly called and held not later than March 31, 2018 (the “ Helios Stockholder Meeting Deadline ”), a proxy statement, in a form reasonably acceptable to MoviePass, soliciting each such stockholder’s affirmative vote at the Helios Stockholder Meeting for approval of resolutions (“ Helios Stockholder Resolutions ”) providing for the issuance of all of the Helios Shares in accordance with Nasdaq Listing Rule 5635 (the “ Helios Stockholder Approval ”, and the date Helios Stockholder Approval is obtained, the “ Helios Stockholder Approval Date ”), and Helios shall use its reasonable best efforts to solicit its stockholders’ approval of such resolutions and to cause the Board of Directors of Helios to recommend to the stockholders that they approve such resolutions. Helios shall be obligated to seek to obtain Helios Stockholder Approval by the Helios Stockholder Meeting Deadline. If, despite Helios’s reasonable best efforts Helios Stockholder Approval is not obtained on or prior to the Helios Stockholder Meeting Deadline, Helios shall cause an additional Helios Stockholder Meeting to be held on or prior to June 30, 2018. If, despite Helios’s reasonable best efforts Helios Stockholder Approval is not obtained after such subsequent stockholder meetings, Helios shall cause an additional Helios Stockholder Meeting to be held semi-annually thereafter until such Helios Stockholder Approval is obtained.”

Page 4 of 7

14. Section 5.6 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“ Board of Directors . As of the Closing, the authorized size of the Board of Directors of MoviePass shall be five, and the Board of Directors shall be comprised of the following persons: Mitch Lowe, Theodore Farnsworth, one (1) director designated prior to the Closing by MoviePass’ Board of Directors who qualifies as an independent director under Nasdaq requirements, one (1) director designated by Mitch Lowe following Closing who qualifies as an independent director under Nasdaq requirements and one (1) director designated by Helios who qualifies as an independent director under Nasdaq requirements.”

15. Section 5.13 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“ Exchange of Preferred Stock and Convertible Notes . Prior to the Closing, MoviePass shall have caused all Preferred Stock and convertible notes (other than the convertible notes in the aggregate principal amount of $1,000,000 held by Chris Kelly (collectively, the “ Kelly Note ”) and convertible notes in the aggregate principal amount of approximately $600,000 held by various note holders (collectively, the “ Outstanding Notes ”)) to have been cancelled, extinguished or otherwise exchanged for shares of Common Stock, as applicable, and consistent with MoviePass’ representations and warranties in Subsection 2.2(b).”

16. Section 5.14 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“ Debt Repayment . Prior to the Closing, MoviePass shall have repaid or converted to Common Stock of MoviePass, consistent with MoviePass’ representations and warranties in Subsection 2.2(b), all of its outstanding indebtedness for borrowed money, except with respect to such indebtedness represented by the Kelly Note and the Outstanding Notes (which Kelly Note and such Outstanding Notes shall be repaid or converted in accordance with Section 4.11).”

17. Section 6.11 of the Purchase Agreement is hereby deleted in its entirety and indicated as: [Intentionally Omitted.]

18. Section 6.15 of the Purchase Agreement is hereby deleted in its entirety and indicated as: [Intentionally Omitted.]

Page 5 of 7

19. Section 6.18 of the Purchase Agreement is hereby deleted in its entirety and indicated as: [Intentionally Omitted.]

20. The second sentence of Section 7.1 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“Neither party shall be liable after the Closing for any claims made for any breaches of representations or warranties by such party in this Agreement in excess of, in the aggregate, $2,500,000, and the maximum liability for each party under this Agreement from and after the Closing shall not exceed, in the aggregate, $4,000,000, in addition to the consideration required to be delivered under this Agreement (including the Helios Shares), except in each case for common law fraud by such party in connection with the transactions contemplated by this Agreement.”

21. Exhibit K-2 to the Purchase Agreement is hereby deleted in its entirety.

22. Except as specifically amended hereby, the Agreement shall remain in full force and effect and all other terms of the Agreement remain unchanged. To the extent any provision of the Agreement is inconsistent with this Amendment, this Amendment shall control.

23. This Amendment is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.

24. The language used in this Amendment will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

25. This Amendment may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile signature delivered by fax or e-mail/.pdf transmission shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile signature, and delivery by such means shall be due delivery hereof.

26. The headings of this Amendment are for convenience of reference and shall not form part of, or affect the interpretation of, this letter agreement.

[ Signature Page Follows ]

Page 6 of 7

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.

MOVIEPASS, INC.

By:	/s/ Mitch Lowe
	Name:	Mitch Lowe
	Title:	Chief Executive Officer

HELIOS AND MATHESON ANALYTICS INC.

By:	/s/ Theodore Farnsworth
	Name:	Theodore Farnsworth
	Title:	Chief Executive Officer

[Signature Page to Amendment No. 2 to Securities Purchase Agreement]

EXHIBIT A

Form of Helios Convertible Note

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.

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.

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:

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

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.

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.

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.

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.

Subordination .

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.

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.

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.

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.

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.

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.

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 .

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.

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.

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.

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.

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.

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]

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]

Exhibit 4.3

SUBORDINATED CONVERTIBLE PROMISSORY NOTE

$[______]

Issuance Date: [_____]

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 [_____] Dollars ($[______]), 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.

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.

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

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;

cancellation of this Note as provided above shall constitute full satisfaction of the Holder’s obligation to pay the purchase price for $[_____] of the Option Shares pursuant to the Option Agreement; and

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.

Next Equity Conversion .

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 “N ext 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).

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.

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).

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.

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.

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.

Subordination .

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.

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)

12)

Miscellaneous .

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.

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.

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.

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.

[Signature Page Follows]

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:
		(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:
	(Signature)
Name:	Stuart Benson
Title:	CFO

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

[Signature Page to the Subordinated Convertible Promissory Note of MoviePass Inc.]

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:

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 ”).

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.

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.

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.

(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)

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.

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.

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

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.

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.

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]

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]

	HELIOS AND MATHESON ANALYTICS INC.

	By:	/s/ Theodore Farnsworth
		Name: Theodore Farnsworth
		Title: Chief Executive Officer

[HMNY Signature Page to Note Purchase Agreement]

	MOVIEPASS INC.

	By:	/s/ Mitch Lowe
		Name: Mitch Lowe
		Title: Chief Executive Officer

[MoviePass Signature Page to Note Purchase Agreement]

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

Exhibit 10.3

NOTE CONVERSION AGREEMENT

This Note Conversion Agreement (this “ Agreement ”) is made and entered into as of ______________, 2017 by and among MoviePass Inc., a Delaware corporation (the “ Company ”), and the undersigned holder (the “ Holder ”) of the Notes (as defined below).

WHEREAS, the Company issued one or more convertible promissory notes to the Holder on such dates and in such aggregate principal amounts as set forth on Exhibit A hereto (the “ Notes ”);

WHEREAS, the Company and the Holder have entered into the Securities Purchase Agreement, dated August 15, 2017, as amended on October 6, 2017 and December 11, 2017 and subject to that certain Waiver Agreement, dated November 6, 2017, by and between the Company and the Holder (as may be further amended, the “ Purchase Agreement ”), pursuant to which the Holder will purchase shares of Common Stock equal to 51.71% of the then outstanding shares of Common Stock of the Company (excluding outstanding options to purchase shares of Common Stock and warrants to purchase shares of the Company’s capital stock) for an aggregate purchase price of up to $28,500,000, as set forth in the Purchase Agreement (the “ Helios Transaction ”);

WHEREAS, the Holder has agreed to convert all outstanding principal and accrued unpaid interest under the Notes into shares of Common Stock immediately following the closing of the Helios Transaction; and

WHEREAS, notwithstanding anything in the Notes to the contrary, and notwithstanding that the Company will issue and sell shares of Common Stock and not Preferred Stock (as defined in the applicable Notes), the Holder desires to agree to deem the Helios Transaction as a “Qualified Financing” and/or “Next Equity Financing” (as defined in the applicable Notes) and convert the entire outstanding principal amount of, and all interest accrued under, the Notes through and as of the date hereof (the “ Interest Date ”), into shares of Common Stock as set forth on Exhibit A (the “ Conversion Shares ”) as if the Helios Transaction were a Qualified Financing and/or Next Equity Financing, as applicable, and the Company desires to issue the Conversion Shares in full satisfaction of its obligations under the Notes (the “ Conversion Election ”).

NOW, THEREFORE, in consideration of the terms and provisions of this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the execution and delivery hereof, the parties hereto, constituting the parties necessary to take the actions contemplated herein, agree as follows:

1. Conversion of Note .

(a) The Holder and the Company hereby agree to the Conversion Election. The Notes shall cease to accrue interest from and after the Interest Date, so that immediately following such conversion, the outstanding principal amount of, and all interest accrued under, the Notes shall be $0.

(b) The Notes shall continue in full force and effect, subject to the terms of this Agreement, until terminated pursuant to the Conversion Election as of the date hereof (or such other date as determined by the mutual agreement of the Company and the Holder), or otherwise pursuant to its terms. The Notes shall be fully satisfied and shall expire, terminate and be canceled in its entirety and be of no further force or effect upon the Conversion Election.

(c) By entering into this Agreement and agreeing to the Conversion Election, the Holder hereby acknowledges and agrees that the terms of the Notes are hereby amended to the extent necessary to permit the Conversion Election and to effect the conversion of the Notes in accordance with the terms of this Agreement. In addition, any notice of the Helios Transaction and any notice of the execution of the Purchase Agreement, in each case that may be required pursuant to the Note, are hereby waived pursuant to the terms of the Notes.

2. Acknowledgment . The Holder acknowledges that its receipt of the Conversion Shares in accordance with this Agreement shall fully satisfy any and all of the Company’s obligations to the Holder pursuant and with respect to the Notes (including, without limitation, any and all of the Company’s obligations with respect to interest owed or penalties or additional fees owed to the Holder pursuant to the Notes) and any other agreements and commitments (written or oral) to issue capital stock or other convertible securities to the Holder, except with respect to the Purchase Agreement or Investment Option Agreement, dated October 11, 2017, and that the Company shall not have any further obligation with respect to the Notes other than the issuance of the Conversion Shares. The Holder further acknowledges and waives any and all breaches and events of default that may have occurred under the Notes or any other agreement to which the Holder and the Company are party. The Holder understands that the Conversion Shares will be issued in reliance on specific exemptions from the registration requirements of the United States federal and state securities laws and that for the purposes thereof, the Company is relying upon the truth and accuracy of the representations made by the Holder in the Notes.

3. Entire Agreement . This Agreement contains the sole and entire understanding of the parties with respect to the subject matter hereof and supersedes all prior negotiations, commitments, agreements and understandings heretofore had among any of them with respect thereto.

4. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and which, together, shall constitute one and the same instrument. Any such counterpart may contain one or more signature pages. This Agreement may be executed by facsimile or electronic signatures.

5. Governing Law . This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to principles of conflicts of law.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties have executed this Note Conversion Agreement as of the date first written above.

	MoviePass INC.

	By:
	Name:	Mitch Lowe
	Title:	Chief Executive Officer

Signature Page to Note Conversion Agreement

IN WITNESS WHEREOF, the parties have executed this Note Conversion Agreement as of the date first written above.

	HOLDER:


	(PRINT HOLDER NAME)

	By:
	Name:
	Title:

Signature Page to Note Conversion Agreement

Exhibit A

Name of Holder

Note Issuance Date

Note Principal Amount as of Issuance Date

Conversion Shares

Helios and Matheson Analytics Inc.

12/__/2017

1,000,000

[__] ¹

¹ NTD: In the event that the number of shares of Common Stock to be issued under the Note is less than two percent (2%) of the then outstanding shares of Common Stock of MoviePass (on a fully-diluted basis, giving effect to the payment or conversion of any notes that convert into MoviePass capital stock that are outstanding immediately prior to the Closing, but excluding any outstanding options to purchase shares of Common Stock and warrants to purchase shares of MoviePass’s capital stock and the shares of Common Stock issuable upon conversion of the Kelly Note), MoviePass will issue such number of shares of Common Stock to provide Helios with the foregoing two percent (2%) interest under the Note.