exv10w28






Exhibit 10.28



No. ____




THIS WARRANT MAY NOT BE EXERCISED PRIOR TO ___, 2010 AND MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED PRIOR TO THAT DATE EXCEPT TO AN OFFICER, DIRECTOR OR PARTNER OF THE HOLDER. THIS WARRANT
WILL EXPIRE AND BE VOID AFTER ___, 2015.




Warrant To Purchase Up To 160,000 Shares




of



THE FILM DEPARTMENT HOLDINGS, INC.

(A Delaware Corporation)



     THIS CERTIFIES THAT, in consideration of that certain Investment Advisory Services letter
agreement dated March 30, 2010, the Film Department Holdings, Inc. (the “Company”) grants to Girard
Securities, Inc. (the “Holder”) as registered owner of this Warrant the right to purchase at any
time or from time to time at or after ___, 2010 and at or before 5:00 p.m., Eastern Time,
___, 2015 (the “Termination Date”), but not thereafter, 160,000 shares of common stock, ___
par value (“Common Stock”) of the Company. This Warrant is
exercisable at $___ per share so
purchased (the “Exercise Price”), upon presentation and surrender of this Warrant and upon payment
of the Exercise Price for such of the Common Stock at the principal office of the Company;
provided, however, that upon the occurrence of any of the events specified in the Statement of
Rights of Warrant, a copy or which is attached as Annex I hereto and by this reference made a part
hereof, the rights granted by this Warrant, including the number of shares of Common Stock to be
received upon such exercise, shall be adjusted as therein specified. If the Termination Date is a
day on which banking institutions are authorized by law to close, then this Warrant may be
exercised in accordance with the terms herein on the next succeeding day which is not such a day on
which banking institutions are authorized by law to close. During the period ending on the
Termination Date, the Company agrees not to take any action that would terminate the Warrant.



     This Warrant may be exercised, in whole or in part, at any time and from time to time during
the Exercise Period. Such exercise shall be accomplished by tender to the Company of the purchase
price set forth above as the warrant price (the “Warrant Price”), either (a) in cash, by wire
transfer or by certified check or bank cashier’s check, payable to the order of the Company, or (b)
by surrendering all or a portion of the of the Warrant using the amount by which the Fair Market
Value, as defined, exceeds the Warrant Price to purchase a number of shares of Common Stock without
the payment of any cash as illustrated in the formula provided below (a “Cashless Exercise”),
together with presentation and surrender to the Company of this Warrant with an executed form of
election and instructions for registration in substantially the form attached hereto as Exhibit A.
Upon receipt of the foregoing, the Company will deliver to the Holder, as promptly as possible but
in no event more than three business days, a certificate or certificates representing the shares of
Common Stock so purchased, registered in the name of the Holder or its transferee. With respect to
any exercise of this Warrant, the Holder will for all purposes be deemed to have become the holder
of record of the number of shares of Common Stock purchased hereunder on the date this Warrant and
payment of the Warrant Price is received by the Company (the “Exercise Date”), irrespective of the
date of delivery of the certificate evidencing such shares, except that, if the date of such
receipt is a date on which the stock transfer books of the Company are closed, such person will be
deemed to have become the holder of such shares at the close of business on the next succeeding
date on which the stock transfer books are open. Fractional shares of Common Stock will not be
issued upon the exercise of this Warrant. In lieu of any fractional shares that would have been
issued but for the immediately preceding sentence, the Holder will be entitled to receive cash
equal to the current Fair Market Value of such fraction of a share of Common Stock on the trading
day immediately preceding the Exercise Date. In the event this Warrant is exercised in part, the
Company shall issue a new Warrant to the Holder covering the aggregate number of shares of Common
Stock for which this Warrant remains exercisable.



If the
Holder elects to conduct a Cashless Exercise, the Company shall cause
to be delivered to the Holder a certificate or certificates
representing the number of shares of Common Stock computed using the following formula:



 









 





	 	 	 	 
	X = Y *
	 	(A-B)
	

	A
	 

	 






	 	 	 	 	 
	Where:
	 	 	 	 
	 

	 	X =
	 	the number of shares of Common Stock to be issued to the Holder;
	 
	 

	 	Y =
	 	the portion of the Warrant (in number of shares of Common
Stock) being exercised by the Holder (at the date of such
calculation);
	 
	 

	 	A =
	 	the Fair Market Value of one share of Common Stock on the
Exercise Date (as calculated below); and
	 
	 

	 	B =
	 	the Warrant Price.






For purposes of the foregoing calculation, “Fair Market Value of one share of Common Stock on the
Exercise Date” shall mean: (i) if the principal trading market for such securities is a national
securities exchange, the Nasdaq Stock Market or the Over-the-Counter Bulletin Board (“OTCBB”), the
closing or last sale price on such exchange or market (during regular hours) on the last trading
day immediately prior to such Exercise Date; or (ii) if (i) is not applicable, and if bid and ask
prices for shares of Common Stock are reported by the National Quotation Bureau (“NQB”), the
average of the high bid and low ask prices so reported on the last trading day immediately prior to
such Exercise Date. Notwithstanding the foregoing, if there is no reported closing price, last
sales price, or bid and ask prices, as the case may be, for the period in question, then the Fair
Market Value shall be determined in good faith by, and reflected in a formal resolution of the
Board of Directors of the Company.




     Upon exercise of this Warrant, the form of election attached hereto as Exhibit A must be duly
executed and the instructions for registration of the Common Stock acquired by such exercise must
be completed. If the subscription rights represented hereby shall not be exercised at or before
5:00 p.m., Eastern Time, on the Termination Date, then, from and after such date and time, this
Warrant shall become and be void without further force or effect, and all rights represented hereby
shall cease and expire.



     The registered Holder of this Warrant, by its acceptance hereof, agrees that it will not sell,
transfer or assign or hypothecate this Warrant prior to ______, 2010 to anyone other than an
officer, director or partner of such Holder. Subsequent to that date, this Warrant may be assigned
by the Holder in whole or in part by execution by the Holder of the form of assignment, a copy of
which is attached hereto as Exhibit B, to certain persons, including dealers or their officers or
partners, In the event of any assignment made as aforesaid, the Company, upon request and surrender
of this Warrant by the Holder at the principal office of the Company accompanied by payment of all
transfer taxes, if any, payable in connection therewith, shall transfer this Warrant on the books
of the Company and shall execute and deliver a new Warrant or Warrants of like tenor to the
appropriate assignee expressly evidencing the right to purchase the aggregate number of Common
Stock purchasable hereunder or such portion of such aggregate number as shall be contemplated by
any such agreement.



     Notwithstanding anything herein to the contrary, each certificate for securities purchased
under this Warrant shall bear a legend as follows:




	 	 	“THE SHARES REPRESENTED BY THIS STOCK CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE FEDERAL
OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH LAWS AS MAY BE APPLICABLE OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION THAT AN EXEMPTION FROM SUCH APPLICABLE
LAWS EXISTS.”




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     The Holder agrees for itself and all subsequent owners, that before any disposition is made of
any securities purchased pursuant to the Warrant, the owner shall give written notice to the
Company describing briefly the manner of any such proposed disposition. The securities shall not be
transferred unless and until (i) the Company has received the opinion of counsel for such owners
that the securities may be sold pursuant to an exemption from registration under the Securities Act
of 1933 (the “Act”), or (ii) a Registration Statement relating to such securities has been filed by
the Company and declared effective by the Securities and Exchange Commission (the “Commission”).



     Subject to the above, this Warrant may be exercised or assigned in whole or in part. In the
event of the exercise or assignment hereof in part only, upon surrender of this Warrant for
cancellation, together with the duly executed exercise or assignment and funds sufficient, to pay
any transfer tax, the Company shall cause to be delivered to the Holder without charge a new
Warrant of like tenor to this Warrant in the name of the Holder evidencing the right of the Holder
to purchase the number of Common Stock purchasable hereunder as to which this Warrant has not been
exercised or assigned.



     Upon receipt of the Company of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant and execution of a customary affidavit of loss and indemnity agreement,
the Company shall execute and deliver a new Warrant of like tenor and date. Any such new Warrant
executed and delivered as a result of such loss, theft, mutilation or destruction shall constitute
an additional contractual obligation on the part of the Company.



     The Company, upon request of the then Holder(s) of a majority of the outstanding Warrant or
shares of Common Stock issuable upon exercise of the Warrant, agrees to register expeditiously, on
one occasion, the Common Stock underlying the Warrants and will file on such occasion a
registration statement on Form S-3 (subject to the Company’s eligibility to use such form) covering
such Common Stock underlying the Warrants. Such request must be made at any time during a period of
four and one-half years beginning six months from the effective date of the Company’s initial
public offering filed with the Securities and Exchange Commission on Form S-1, file number
333-163514. In connection with the request, the Company shall bear all expenses, one time only,
attendant to registering the securities and shall immediately after the receipt of the registration
request, give a notice to the other holders of Warrants who shall have 20 days to elect to include
their shares of Common Stock in such registration. In addition, for a period of four and one-half
years beginning six months after the date of the Warrant, the holders of the Warrants shall have
the right to include such securities as part of any other registration of securities, other than on
Forms S-4, S-8 or other inappropriate form, filed by the Company; .; provided, that if in the
opinion of the managing underwriter in connection with any such offering the aggregate number of
shares to be sold in such offering exceeds the maximum number which may be distributed without
adversely affecting the price, timing or distribution of the shares being distributed, then each
holder of Warrants shall be entitled to include in such registration not more than its pro rata
portion of such maximum number of shares. The Company shall bear all expenses attendant to such
registrations, and agrees to give the holders thereof not less than 30 days’ written notice
thereof, including any terms or conditions, prior to the filing of any such registration statement
with the Commission. The Company agrees to use its best efforts to promptly file and cause the
filing required herein to become effective to register the Common Stock underlying the Warrants and
to use its best efforts to keep the registration statement current and accurate for a period of 180
days (12 months on Form S-3).



     In each instance in which registration of the Common Stock underlying the Warrant is required,
the Company shall:




     (1) Supply to the Holders intending to make a public distribution of their Common
Stock, one executed copy of each registration statement and a reasonable number of copies of
the preliminary, final and other prospectus in conformity with requirements of the Act and
the Rules and Regulations promulgated thereunder and such other documents as the Holders
shall reasonably request.




     (2) Indemnify and hold harmless each such Holder and each underwriter, within the
meaning of the Act, who may purchase from or sell for any such Holder, any Common Stock,
from and against any and all losses, claims, damages, and liabilities (including, but not
limited to, any and all expenses whatsoever reasonably incurred in investigation, preparing,
defending or settling any claim) arising from (i) any untrue or alleged untrue statement of
material fact contained in any such registration statement or any prospectus



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contained therein or delivered thereunder, or from (ii) any omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, unless each untrue statement or omission or such alleged untrue statement or
omission was based upon information furnished or required to be furnished in writing to the
Company by such Holders expressly for use therein, or the alleged liability arises from a
violation by any Holders and/or any underwriter of the securities laws of any state relating
to registration of securities or brokers or dealers, which indemnification shall include
each person, if any, who controls any such Holders or underwriter within the meaning of the
Act; provided, however, that the Company shall not be so obligated to indemnify any such
Holders or controlling person unless such Holders shall at the same time indemnify the
Company, its directors, each officer signing any registration statement and each person, if
any, who controls the Company within the meaning of the Act, from and against any and all
losses, claims, damages and liabilities (including, but not limited to, any and all expenses
whatsoever reasonably incurred in investigation, preparing, defending or settling any claim)
arising from (a) any untrue or alleged untrue statement of a material fact contained in any
registration statement or prospectus contained therein or (b) any omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but the indemnity of such Holders or controlling
person shall be limited to liability based upon information furnished in writing to the
Company by such Holders or controlling person expressly for use therein or relating the
registration of securities or brokers or dealers in any state.



     The Company will also cooperate with the Holder(s) of the or Warrants issued upon the exercise
of the Warrants in preparing and signing any registration statement or notification, in addition to
the registration rights hereinabove provided, required in order to sell or transfer the Common
Stock underlying this Warrant and will supply all information required therefor; but such
additional registration or notification shall be at the Holder(s) cost and expense. The Company’s
agreements with respect to registration of the securities will continue in effect regardless of the
exercise or surrender of this Warrant.



     In no event shall this Warrant (or the securities issuable upon full or partial exercise
hereof) be offered or sold except in conformity with the Act.



     This Warrant shall be governed by, and construed in accordance with, the laws of the State of
California, without regard to its conflicts of laws principles or rules.



     IN WITNESS WHEREOF, the Company has caused this Warrant to be signed as of this            day of      , 2010.



	 	 	 	 	 
	 	THE FILM DEPARTMENT HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Mark Gill, Chief Executive Officer 	 
	 	 	 	 



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ANNEX I




THE FILM DEPARTMENT HOLDINGS, INC.



STATEMENT OF RIGHTS OF WARRANTS




     (a) In the event, prior to the expiration of the Warrant to which this Statement of Rights
is attached by exercise or by its terms, the Company shall issue any of its Common Stock as a share
dividend or shall subdivide the number of outstanding Common Stock into a greater number of shares,
then, in either of such events, the then applicable Exercise Price per share purchasable pursuant
to this Warrant in effect at the time of such action shall be reduced proportionately and the
number of shares of Common Stock at that time purchasable pursuant to this Warrant shall be
increased proportionately; and, conversely, in the event that the Company shall reduce the number
of outstanding shares of Common Stock by combining such shares into a smaller number of shares,
then, in such event, the then applicable Exercise Price per share purchasable pursuant to this
Warrant in effect at the time of such action shall be increased proportionately and the number of
shares of Common Stock at that time purchasable pursuant to this Warrant proportionately shall be
decreased. Any dividend paid or distributed upon the Common Stock in shares of any other class of
the Company or securities convertible into Common Stock shall be treated as a dividend paid in
Common Stock to the extent that the shares of Common Stock are issuable upon the conversion
thereof.



     (b) In the event, prior to the expiration of this Warrant by exercise or by its terms, the
Company shall be recapitalized by reclassifying its outstanding Common Stock (other than into
shares with a different par value, or by changing its outstanding Common Stock to shares without
par value), or in the event the Company or a successor corporation shall consolidate or merge with
or convey all or substantially all of its, or of any successor corporation’s, property and assets
to any other corporation or corporations (any such other corporation being included within the
meaning of the term “successor corporation” hereinbefore used in the context of any consolidation
or merger of any other corporation with, or the sale of all or substantially all of the property of
any such other corporation to, another corporation or corporations), or in the event of any other
material change in the capital structure of the Company or of any successor corporation by reason
of any reclassification, reorganization, recapitalization, consolidation, merger, conveyance or
otherwise, then, as a condition of any such reclassification, reorganization, recapitalization,
consolidation, merger or conveyance, a prompt, proportionate, equitable, lawful and adequate
provision shall be made whereby the Holder of this Warrant shall thereafter have the right to
purchase, upon the basis and the terms and conditions specified in this Warrant, in lieu of the
securities of the Company theretofore purchasable upon the exercise of this Warrant, such shares,
securities or assets as may be issued or payable with respect to or in exchange for the number of
securities of the Company theretofore purchasable upon the exercise of this Warrant had such
reclassification, reorganization, recapitalization, consolidation, merger or conveyance not taken
place; and in any such event, the rights of the Holder of this Warrant to any adjustment in the
number of Common Stock purchasable upon exercise of this Warrant, as provided herein, shall
continue and be preserved in respect of any shares, securities or assets which the Holder becomes
entitled to purchase. Notwithstanding anything herein to the contrary, the provisions of this
paragraph (b) shall not apply to a merger with a subsidiary provided the Company is the continuing
corporation and provided further such merger does not result in any reclassification, capital
reorganization or other change of the securities issuable under this Warrant. The foregoing
provisions of this paragraph (b) shall apply to successive reclassifications, capital
reorganizations and changes of securities and to successive consolidation, mergers, sales or
conveyances.



     (c) In the event the Company, at any time while this Warrant shall remain unexpired and
unexercised, shall sell all or substantially all of its property, or dissolves, liquidates, or
winds up its affairs, prompt, proportionate, equitable, lawful and adequate provision shall be made
as part of the terms of any such sale, dissolution, liquidation, or winding up such that the Holder
of this Warrant may thereafter receive, upon exercise hereof, in lieu of the securities of the
Company which it would have been entitled to receive, the same kind and amount of any shares,
securities or assets as may be issuable, distributable or payable upon any such sale, dissolution,
liquidation or winding up with respect to each Common Share of the Company; provided, however, that
in the event of any such sale, dissolution, liquidation or winding up, the right to exercise this
Warrant shall terminate on a date fixed by the Company, such date so fixed to be not earlier than
5:00 p.m., Eastern Time, on the 45th day next succeeding the date



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on which notice of such termination of the right to exercise this Warrant has been given by mail to
the Holder of this Warrant at such Holder’s address as it appears on the books of the Company.



     (d) Upon any exercise of this Warrant by the Holder, the Company shall not be required to
deliver fractions of any securities; but prompt, proportionate, equitable, lawful and adequate
adjustment in the Exercise Price payable by the Holder shall be made in respect of any such
fraction of any securities on the basis of the Exercise Price then applicable upon the exercise of
this Warrant.



     (e) In the event, prior to the expiration of this Warrant by exercise or by its terms, the
Company shall determine to take a record of its securities holders for the purpose of determining
securities holders entitled to receive any share dividend, distribution or other right which will
cause any change or adjustment in the number, amount, price or nature of the Common Stock or other
shares, securities or assets deliverable upon the exercise of this Warrant pursuant to the
foregoing provisions, the Company shall specify the date as of which such record is to be taken;
the purpose for which such record is to be taken; and the number, amount, price and nature of the
shares of Common Stock or other securities or assets which will be deliverable upon exercise of
this Warrant after the action for which such record will be taken has been consummated.



     (f) The Company may deem and treat the registered Holder of this Warrant at any time as the
absolute owner hereof for all purposes, and the Company shall not be affected by any notice to the
contrary.



     (g) Whenever the Exercise Price shall be adjusted as required by the provisions of paragraph
(a) hereof, the Company shall forthwith file in the custody of its Secretary or Assistant Secretary
at its principal office, and with its stock transfer agent, if any, an officer’s certificate
showing the adjusted Exercise Price determined as herein provided and setting forth in reasonable
detail the facts requiring such adjustment. Each such officer’s certificate shall be made available
at all reasonable times for inspection by the Holder and the Company shall, forthwith after each
such adjustment, deliver a copy of such certificate to the Holder. Such certificate shall be
conclusive as to the correctness of such adjustment.



     (h) This Warrant shall not entitle the Holder hereof to any of the rights of shareholders or
to any dividend declared upon the Common Stock unless the Holder shall have exercised this Warrant
prior to the record date fixed by the Board of Directors of the Company for the determination of
holders of Common Stock entitled to such dividend or other right.



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EXHIBIT A




FORM TO BE USED TO EXERCISE WARRANT:



The Film Department Holdings, Inc.

8439 Sunset Blvd., 2nd Floor

West Hollywood, California 90069



Date:                    , 20




     The Undersigned hereby elects irrevocably to exercise the attached Warrant dated
        , 2010 and to purchase            shares of The Film Department Holdings, Inc. called for
thereby, and hereby makes payment of
$         (at the rate of $         per share) in
payment of the Exercise Price pursuant thereto or the surrender herewith of the Warrant to purchase
shares in consideration of the Cashless Exercise Price pursuant thereto, as the case may
be. Please issue the shares as to which this Warrant is exercised in accordance with the
instructions given below.





	 	 	 	 	 
	 	Signature	 
	 	 	 
	 	 	 
	 	Signature Guaranteed (Medallion)	 
	 



INSTRUCTIONS FOR REGISTRATION OF COMMON STOCK




	 	 	 
	 	 
	Name	 	 
	 	(Print in Block Letters)	 
	 
	Address	 	 
	 
	FEIN #	 	 



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EXHIBIT B




FORM TO BE USED TO ASSIGN WARRANT:



ASSIGNMENT




     (To be executed by the registered Holder to effect a transfer of the within Warrant:)



     FOR
VALUE RECEIVED,              does hereby sell, assign and transfer unto
            the right to purchase            shares of The Film Department Holdings,
Inc. evidenced by that certain Warrant dated      , 2010 and does hereby irrevocably
constitute and appoint            attorney to transfer such right on the books of such
Company with full power of substitution in the premises.



Dated:
                  , 20    .




	 	 	 	 	 
	 	Signature	 
	 	 	 
	 	 	 
	 	Signature Guaranteed (Medallion)	 
	 




     NOTICE: The signature to the form to exercise or form to assign must correspond with the name
as written upon the face of the Warrant in every particular without alteration or enlargement or
any change whatsoever, and must be medallion guaranteed by a bank, other than a savings bank, or by
a trust company or by a firm having membership on a registered national securities exchange.




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