As filed with the Securities and Exchange Commission on December 29, 2010
Registration No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Youku.com Inc.
(Exact name of registrant as specified in its charter)
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Cayman Islands
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Not Applicable
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(State or other jurisdiction of
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(I.R.S. Employer
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incorporation or organization)
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Identification Number)
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5/F, SinoSteel Plaza
8 Haidian Street
Haidian District
Beijing 100080
The Peoples Republic of China
(86-10) 5885-1881
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
2006 Stock Option Scheme
2010 Share Incentive Plan
(Full title of the plan)
Law Debenture Corporate Services Inc.
400 Madison Avenue, 4
th
Floor
New York, New York 10017
(212) 750-6474
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Indicate by
check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and
smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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Copies to:
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Dele Liu
Chief Financial Officer
Youku.com Inc.
5/F, SinoSteel Plaza
8 Haidian Street
Haidian District
Beijing 100080
The Peoples Republic of China
(86-10) 5885-1881
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Z. Julie Gao, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
c/o 42/F, Edinburgh Tower, The Landmark,
15 Queens Road Central
Hong Kong
(852) 3740-4700
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CALCULATION OF
REGISTRATION FEE
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Title of Securities to be Registered (1)
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Amount to be
Registered (2)
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Proposed Maximum
Offering Price Per
Share
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Proposed Maximum
Aggregate
Offering Price
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Amount of
Registration
Fee
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Class A Ordinary Shares, par value $0.00001 per share
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12,031,834 (3)
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$0.02 (3)
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$240,637
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$27.94
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Class A Ordinary Shares, par value $0.00001 per share
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39,269,624 (3)
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$0.036 (3)
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$1,413,706
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$164.13
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Class A Ordinary Shares, par value $0.00001 per share
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16,503,332 (3)
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$0.081128308 (3)
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$1,338,887
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$155.44
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Class A Ordinary Shares, par value $0.00001 per share
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22,431,331 (3)
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$0.143036134 (3)
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$3,208,491
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$372.51
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Class A Ordinary Shares, par value $0.00001 per share
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19,449,400 (3)
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$0.190850707 (3)
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$3,711,932
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$430.96
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Class A Ordinary Shares, par value $0.00001 per share
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19,103,000 (3)
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$0.4 (3)
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$7,641,200
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$887.14
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Class A Ordinary Shares, par value $0.00001 per share
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11,438,000 (3)
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$0.48 (3)
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$5,490,240
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$637.42
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Class A Ordinary Shares, par value $0.00001 per share
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100,214,710 (4)
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$2.08 (4)
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$208,446,597
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$24,200.65
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Total
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240,441,231 (5)
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-
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$231,491,690
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$26,876.19
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(1)
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These shares may be represented by the Registrants ADSs, each of which represents 18 Class A ordinary shares. The Registrants ADSs issuable upon
deposit of the ordinary shares registered hereby have been registered under a separate registration statement on Form F-6 (File No. 333-170709).
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(2)
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Represents Class A ordinary shares issuable upon exercise of options granted under the 2006 Stock Option Scheme, as amended (the 2006 Plan). No awards
have been granted under the 2010 Share Incentive Plan (the 2010 Plan) as of December 29, 2010. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement also covers
an indeterminate number of additional shares which may be offered and issued to prevent dilution from share splits, share dividends or similar transactions as provided in the 2006 Plan and the 2010 Plan.
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(3)
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The amount to be registered represents shares issuable upon exercise of outstanding options granted under the 2006 Plan and the corresponding proposed maximum offering
price per share represents the exercise price of such outstanding options.
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(4)
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These shares are reserved for future award grants under the 2006 Plan and the 2010 Plan, and the proposed maximum offering price per share, which is estimated solely
for the purposes of calculating the registration fee under Rule 457(c) and Rule 457(h) under the Securities Act, is based on US$37.49 per ADS (the average of the high and low prices for the Registrants ADSs as reported on the New York Stock
Exchange on December 28, 2010.
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(5)
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Any Class A ordinary shares covered by an award granted under the Plan (or portion of an award) that terminates, expires or lapses for any reason will be deemed
not to have been issued for purposes of determining the maximum aggregate number of Class A ordinary shares that may be issued under the 2006 Plan and the 2010 Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.
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Plan Information*
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Item 2.
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Registrant Information and Employee Plan Annual Information*
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Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the
Securities Act and the Note to Part I of Form S-8. The documents containing information specified in this Part I will be separately provided to the participants covered by the Plan, as specified by Rule 428(b)(1) under the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference
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The following documents previously filed by Youku.com (the Registrant) with the Securities and Exchange Commission (the Commission) are incorporated by reference herein:
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(a)
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The Registrants prospectus dated December 8, 2010 filed with the Commission on December 8, 2010 pursuant to Rule 424(b)(4) under the Securities Act; and
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(b)
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The description of the Registrants ordinary shares incorporated by reference in the Registrants registration statement on Form 8-A (File No. 001-34977)
filed with the Commission on November 19, 2010, including any amendment and report subsequently filed for the purpose of updating that description.
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All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the Exchange Act), after the date of this Registration
Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement in a document incorporated or deemed to be incorporated by reference in this Registration Statement will be deemed to be
modified or superseded to the extent that a statement contained in this Registration Statement or in any other later filed document that also is or is deemed to be incorporated by reference modifies or supersedes such statement. Any such statement
so modified or superseded will not be deemed, except as so modified or superseded, to be a part of this Registration Statement.
Item 4.
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Description of Securities
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel
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Not applicable.
Item 6.
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Indemnification of Directors and Officers
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Cayman Islands law does not limit the extent to which a companys articles of association may provide for indemnification of directors and officers, except to the extent any such provision may be
held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime. The Registrants amended and restated articles of association, adopted by its
shareholders on November 12, 2010, provides that the Registrant shall indemnify its directors and officers against actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred by such persons in their capacity as
such, except through their own willful neglect or default.
1
Pursuant to the indemnification agreements, the form of which was filed as Exhibit 10.3 to
the Registrants registration statement on Form F-1, as amended (File No. 333-170603), the Registrant has agreed to indemnify its directors and officers against certain liabilities and expenses incurred by such persons in connection with
claims made by reason of their being such a director or officer.
The Registrant also maintains a directors and officers
liability insurance policy for its directors and officers.
Item 7.
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Exemption From Registration Claimed
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Not applicable.
The
Exhibits listed on the accompanying Exhibit Index are filed as a part of, or incorporated by reference into, this Registration Statement. (See Exhibit Index below).
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
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(iii)
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to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to that
information in the Registration Statement;
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provided
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however
, that paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement;
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(2)
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(b)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrants annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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2
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Beijing, China, on December 29, 2010.
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YOUKU.COM INC.
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By:
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/s/ V
ICTOR
W
ING
C
HEUNG
K
OO
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Name:
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Victor Wing Cheung Koo
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Title:
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Chairman of the Board of
Directors, Chief Executive Officer
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1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, severally and not jointly,
each of Victor Wing Cheung Koo and Dele Liu, with full power to act alone, as his or her true and lawful attorney-in-fact, with the power of substitution, for and in such persons name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each
said attorney-in-fact full power and authority to do and perform each and every act and thing requisite and necessary to be done as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that
each said attorney-in-fact may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on December 29, 2010.
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Signature
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Title
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S
/ V
ICTOR
W
ING
C
HEUNG
K
OO
Victor Wing Cheung
Koo
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Chairman of the Board of Directors and Chief Executive Officer (principal executive officer)
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S
/ D
ELE
L
IU
Dele Liu
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Director, Chief Financial Officer and Senior Vice President
(principal financial and accounting officer)
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S
/ G
EORGE
L
EONARD
B
AKER
J
R
.
George Leonard Baker
Jr.
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Director
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S
/ J
ONATHAN
J
IA
Z
HU
Jonathan Jia Zhu
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Director
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S
/ Y
E
S
HA
Ye Sha
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Director
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S
/ N
ICHOLAS
F
REDERICK
L
AWLER
Nicholas Frederick
Lawler
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Director
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S
/ B
RYAN
Z
ONGWEI
L
I
Bryan Zongwei Li
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Director
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S
/ K
ATE
L
EDYARD
Kate Ledyard, on behalf of Law Debenture Corporate
Services Inc.
Title: Manager
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Authorized U.S. Representative
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2
EXHIBIT INDEX
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Exhibit
Number
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Description
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4.1
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Amended and Restated Memorandum and Articles of Association of the Registrant (incorporated herein by reference to Exhibit 3.2 to the registration statement on Form F-1, as amended
(File No. 333-170603))
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4.2
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Registrants Specimen Certificate for Ordinary Shares (incorporated herein by reference to Exhibit 4.2 to the registration statement on Form F-1, as amended (File No.
333-170603))
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4.3*
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Deposit Agreement among the Registrant, Citibank, N.A. as depositary, and holders and beneficial owners of American Depositary Shares evidenced by American Depositary Receipts
issued thereunder
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5.1*
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Opinion of Appleby, Cayman Islands counsel to the Registrant, regarding the legality of the ordinary shares being registered
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10.1
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2006 Stock Option Scheme, as amended (incorporated herein by reference to Exhibit 10.1 to the registration statement on Form F-1, as amended (File No. 333-170603))
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10.2
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2010 Share Incentive Plan (incorporated herein by reference to Exhibit 10.2 to the registration statement on Form F-1, as amended (File No. 333-170603))
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23.1*
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Consent of Ernst & Young Hua Ming
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23.2*
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Consent of Appleby (included in Exhibit 5.1)
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24.1*
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Power of Attorney (included on signature page hereto)
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Youku Tudou Inc. American Depositary Shares, Each Representing 18 Class A Ordinary Shares. (NYSE:YOKU)
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Youku Tudou Inc. American Depositary Shares, Each Representing 18 Class A Ordinary Shares. (NYSE:YOKU)
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