As filed with the Securities and Exchange Commission on
June 2, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC
20549
Amendment No 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
YOU ON DEMAND HOLDINGS,
INC.
(Exact name of registrant as specified in its charter)
Nevada
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20-1778374
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(State or other jurisdiction of incorporation or
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(I.R.S. Employer Identification Number)
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organization)
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27 Union Square West, Suite 502
New York, New York 10003
212-206-1216
(Address, including zip code, and telephone number, including
area code
of registrants principal executive offices)
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Copies of Correspondence to:
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Mr. Shane McMahon
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William N. Haddad
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27 Union Square West, Suite 502
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New York, New York 10003
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Reed Smith LLP
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599 Lexington Avenue
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(212) 206-1216
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New York, NY 10022
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(212) 521-5400
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(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
A
proximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. [ ]
If any
of the securities being registered on this form are to be offered on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this
form is a post-effective amendment for an offering pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this
form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. [ ]
If this
form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, and
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. (Check one):
Large accelerated filer [ ]
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Accelerated filer [ ]
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Non-accelerated filer [ ]
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Smaller reporting company [x]
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CALCULATION OF REGISTRATION FEE
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Proposed
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Maximum
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Proposed
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Amount
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Amount to be
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Offering
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Maximum
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of
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Title of each class of
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Registered
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Price Per
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Aggregate
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Registra
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securities to be registered
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(1)
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Unit (2)
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Offering Price (2)
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tion Fee
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Common Stock, $0.001 par value, issuable upon
conversion of Series E Preferred Stock
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7,428,574
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$
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2.66
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19,760,007
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2,545
(3)
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(1)
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All shares are being registered on this registration
statement for resale by the selling stockholders named in this prospectus.
Pursuant to Rule 416(a) of the Securities Act of 1933, this registration
statement also registers such additional shares of the registrants common
stock as may become issuable to prevent dilution as a result of stock
splits, stock dividends or similar transactions with respect to the shares
of common stock being registered hereunder.
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(2)
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Estimated solely for the purpose of calculating the
amount of the registration fee pursuant to Rule 457(c) under the
Securities Act of 1933, as amended, based on the average of the high and
low price for the Companys Common Stock on The NASDAQ Capital Market on
February 4, 2014.
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(3)
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Previously Paid
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The registrant hereby amends this
registration statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act or until this
registration statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may
be changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective.
This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
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PROSPECTUS
Subject to completion, dated June 2, 2014
7,428,574 Shares of Common Stock
YOU ON DEMAND HOLDINGS, INC.
This prospectus relates to 7,428,574 shares of common stock of
YOU On Demand Holdings, Inc. that may be sold from time to time by the selling
stockholders named in this prospectus, which include:
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7,428,574 shares of common stock issuable to the selling
stockholders upon the conversion of shares of Series E Preferred Stock.
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We will not receive any of the proceeds from the sale of shares
of our common stock by the selling stockholders.
The shares of our common stock may be offered through public or
private transactions at market prices prevailing at the time of sale, at a fixed
price or fixed prices, at negotiated prices, at various prices determined at the
time of sale or at prices related to prevailing market prices. In addition,
shares of our common stock may be offered from time to time through ordinary
brokerage transactions on the Nasdaq Capital Market. The timing and amount of
any sale are within the sole discretion of the selling stockholders, subject to
certain restrictions. See Plan of Distribution.
Our common stock is listed on the Nasdaq Capital Market under
the symbol YOD. On May 30, 2014, the closing sale price of our common
stock as reported on the Nasdaq Capital Market was $[].
Investing in our common stock involves a high degree of
risk. See Risk Factors beginning on page 2 of this prospectus and in our
Annual Report on Form 10-K to read about risk factors you should consider before
buying shares of our common stock.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The date of this prospectus
is June 2, 2014
TABLE OF CONTENTS
i
ABOUT THIS PROSPECTUS
You should rely only on the information contained in this
prospectus. We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent
information, you should not rely on it. For further information, please see the
section of this prospectus entitled Where You Can Obtain Additional
Information. The selling stockholders are not making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted.
You should not assume that the information appearing in this
prospectus is accurate as of any date other than the date on the front cover of
this prospectus, regardless of the time of delivery of this prospectus or any
sale of a security. Our business, financial condition, results of operations,
and prospects may have changed since those dates.
We obtained statistical data, market data, and other industry
data and forecasts used throughout this prospectus from market research,
publicly available information, and industry publications. Industry publications
generally state that they obtain their information from sources that they
believe to be reliable, but they do not guarantee the accuracy and completeness
of the information. Similarly, while we believe that the statistical data,
industry data, and forecasts and market research are reliable, we have not
independently verified the data, and we do not make any representation as to the
accuracy of the information. We have not sought the consent of the sources to
refer to their reports appearing in this prospectus.
USE OF TERMS
Except as otherwise indicated by the context, all references in
this prospectus to (i) YOU On Demand, we, us, our, our Company, or
the Company are to YOU On Demand Holdings, Inc., a Nevada corporation, and its
consolidated subsidiaries and variable interest entities, or VIEs; (ii)
Securities Act are to the Securities Act of 1933, as amended; and (iii)
Exchange Act means the Securities Exchange Act of 1934, as amended.
YOU ON DEMAND HOLDINGS, INC.
Our Business
We operate in the Chinese media segment, through our Chinese
subsidiaries and VIEs, a business which provides integrated value-added service
solutions for the delivery of video on demand, or VOD, and enhanced premium
content for cable providers.
Through our VIE, Beijing Sino Top Scope Technology Co., Ltd.,
and its 80% owned operating joint venture Zhong Hai Shi Xun Information
Technology Co., Ltd., or Zhong Hai Video, we provide integrated value-added
service solutions for the delivery of VOD, and enhanced premium content for
cable providers and other distribution platforms. Zhong Hai Video's revenue is
derived primarily from a VOD model, consisting of a fee to view movies, popular
titles and live events.
The following chart illustrates our current corporate
structure:
Note: Zhang Yan, the sole shareholder of Sinotop Beijing, and a
party to certain VIE arrangements between Sinotop Hong Kong and Sinotop Beijing,
is the wife of Weicheng Liu, our Chief Executive Officer.
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1.
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Sinotop Beijing VIE Agreements, including with Zhang Yan,
the sole shareholder of Sinotop Beijing.
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(1)
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Management Services Agreement between Sinotop Beijing and
Sinotop Hong Kong, dated as of March 9, 2010.
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(2)
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Option Agreement among Sinotop Hong Kong, Sinotop Beijing
and the sole shareholder of Sinotop Beijing (Zhang Yan), dated March 9,
2010.
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(3)
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Termination, Assignment and Assumption Agreement, dated
June 4, 2012, by and among Sinotop Hong Kong, YOD WFOE, Sinotop Beijing
and Zhang Yan, as the sole shareholder of Sinotop Beijing.
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(4)
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Equity Pledge Agreement, dated June 4, 2012, by and among
Sinotop Beijing, YOD WFOE and Zhang Yan, as the sole shareholder of
Sinotop Beijing. Pursuant to the Pledge Agreement, the Pledge Agreement
was registered with the competent office of the PRC SAIC in Beijing
shortly after the Pledge Agreement was executed.
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(5)
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Voting Rights Proxy Agreement, dated June 4, 2012, by and
among Sinotop Beijing, YOD WFOE and Zhang Yan, as the sole shareholder of
Sinotop Beijing.
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(6)
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Power of Attorney, dated June 4, 2012 executed by Zhang
Yan as the sole shareholder of Sinotop
Beijing.
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2.
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Cooperation Agreement, by and among, Sinotop Beijing, Hua
Cheng Hu Dong (Beijing) Film and Television Communication Co., Ltd. (Hua
Cheng) and Zhong Hai Shi Xun Information Technology Co., Ltd. (Zhong Hai
Video), dated September 30, 2010. The controlling party of Hua Cheng is
Hua Cheng Film and Television Digital Programs Co. Ltd. (Hua Cheng
Digital). Hua Cheng Digital is not related to us or our
principles.
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Our Corporate History
YOU On Demand Holdings, Inc., our parent holding company, was
formed in the State of Nevada on October 19, 2004, pursuant to a reorganization
of a California entity formed in 1988. Prior to January 2007, we were a blank
check shell company.
On January 23, 2007, we acquired China Broadband, Ltd., a
Cayman Islands company, which at the time was a party to the cooperation
agreement with our PRC-based wholly-foreign-owned-entity, in a reverse
acquisition transaction.
Office Location
The address of our principal executive office is 27 Union
Square West, Suite 502, New York, New York 10003 and our telephone number is
(212) 206-1216. We maintain a website at
www.yod.com
that contains
information about our Company, though no information contained on our website is
part of this prospectus.
1
THE OFFERING
Common stock offered by the selling stockholder
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7,428,574 shares, consisting entirely of shares of common stock issuable upon the
conversion of shares of Series E Preferred Stock held by the selling
stockholders.
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Offering Price
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The selling stockholders will determine at what price
they
may sell the offered shares, and such sales may be made at prevailing
market prices or at privately negotiated prices.
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Use of proceeds
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All of the shares of common stock being offered under
this prospectus are being offered and sold by the selling stockholders. We
will not receive any proceeds from the resale of the shares by the selling
security holders.
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The Nasdaq Capital Market
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Our common stock is quoted on the Nasdaq Capital Market
under the symbol YOD.
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RISK FACTORS
An investment in our securities involves a high degree of risk.
Prior to making a decision about investing in our securities, you should
carefully consider the important risk factor below and the specific risk factors
discussed in the sections entitled Risk Factors contained in our most recent
Annual Report on Form 10-K filed on March 31, 2014, and in any applicable
prospectus supplement and our other filings with the Securities and Exchange
Commission (the "SEC") and incorporated by
reference in this prospectus, together with all of the other information
contained in this prospectus, or any applicable prospectus supplement.
Additional risks and uncertainties not presently known to us, or that we
currently view as immaterial, may also impair our business. If any of the risks
or uncertainties described in our SEC filings or any prospectus supplement or
any additional risks and uncertainties actually occur, our business, financial
condition and results of operations could be materially and adversely affected.
In that case, the trading price of our securities could decline and you might
lose all or part of your investment.
The number of shares being registered for sale is
significant in relation to our trading volume.
All of the shares registered for sale on behalf of the selling
stockholders are restricted securities as that term is defined in Rule 144
under the Securities Act. We have filed this registration statement to register
these restricted shares for sale into the public market by the selling
stockholders. These restricted securities, if sold in the market all at once or
at about the same time, could depress the market price during the period the
registration statement remains effective and also could affect our ability to
raise equity capital. Any outstanding shares not sold by the selling
stockholders pursuant to this prospectus will remain as restricted shares in
the hands of the holders, except for those held by non-affiliates for a period
of six months, calculated pursuant to Rule 144.
FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference
forward-looking statements within the meaning of section 27A of the Securities
Act and section 21E of the Exchange Act. These forward-looking statements are
managements beliefs and assumptions. In addition, other written or oral
statements that constitute forward-looking statements are based on current
expectations, estimates and projections about the industry and markets in which
we operate and statements may be made by or on our behalf. Words such as
should, could, may, expect, anticipate, intend, plan, believe,
seek, estimate, variations of such words and similar expressions are
intended to identify such forward-looking statements. These statements are not
guarantees of future performance and involve certain risks, uncertainties and
assumptions that are difficult to predict. There are a number of important
factors that could cause our actual results to differ materially from those
indicated by such forward-looking statements.
We describe material risks, uncertainties and assumptions that
could affect our business, including our financial condition and results of
operations, under Risk Factors and may update our descriptions of such risks,
uncertainties and assumptions in any prospectus supplement. We base our
forward-looking statements on our managements beliefs and assumptions based on information
available to our management at the time the statements are made. We caution you
that actual outcomes and results may differ materially from what is expressed,
implied or forecast by our forward-looking statements. Accordingly, you should
be careful about relying on any forward-looking statements. Reference is made in
particular to forward-looking statements regarding growth strategies, financial
results, product and service development, competitive strengths, intellectual
property rights, litigation, mergers and acquisitions, market acceptance or
continued acceptance of our products and services, accounting estimates,
financing activities, ongoing contractual obligations and sales efforts. Except
as required under the federal securities laws and the rules and regulations of
the SEC, we do not have any intention or obligation to update publicly any
forward-looking statements after the distribution of this prospectus, whether as
a result of new information, future events, changes in assumptions, or
otherwise.
2
SELLING STOCKHOLDERS
This prospectus relates to the resale by the selling
stockholders named below from time to time of up to a total of 7,428,574 shares
of common stock issuable upon the conversion of shares of Series E Preferred
Stock issued and issuable to the selling stockholders pursuant to transactions
exempt from registration under the Securities Act. The conversion price for the
Series E Preferred Stock is $1.75 and each share of Series E Preferred Stock is
convertible at any time at the option of the holder into one share of Common
Stock (subject to certain adjustments set forth in its Certificate of
Designation). All of the common stock
offered by this prospectus is being offered by the selling stockholders for
their own accounts.
The table below, which was prepared based on information filed
publicly or supplied to us by the selling stockholders, sets forth information
regarding the beneficial ownership of outstanding shares of our common stock
owned by the selling stockholders and the shares that it may sell or otherwise
dispose of from time to time under this prospectus. The selling stockholders, or
their transferees, donees or successors, may resell, from time to time, all,
some or none of the shares of our common stock covered by this prospectus, as
provided in this prospectus under the section entitled Plan of Distribution
and in any applicable prospectus supplement. However, we do not know when or in
what amount the selling stockholders may offer their shares for sale under this
prospectus, if any.
The number of shares disclosed in the table below as
"beneficially owned" are those beneficially owned as determined under the rules
of the SEC. Such information is not necessarily indicative of ownership for any
other purpose. Under the rules of the SEC, a person is deemed to be a
"beneficial owner" of a security if that person has or shares "voting power,"
which includes the power to vote or to direct the voting of such security, or
"investment power," which includes the power to dispose of or to direct the
disposition of such security. In computing the number of shares beneficially
owned by a selling stockholder and the percentage of ownership of that selling
stockholder, shares of common stock underlying shares of convertible preferred
stock, options or warrants held by that selling stockholder that are convertible
or exercisable, as the case may be, within 60 days are included. The selling
stockholders percentage of ownership in the following table is based upon
16,553,021 shares of common stock outstanding as of May 30, 2014. Prior to this
offering, the aggregate number of common stock held by non-affiliates was
11,725,648.
Unless otherwise indicated and subject to community property
laws where applicable, the selling stockholders named in the following table
have, to our knowledge, sole voting and investment power with respect to the
shares beneficially owned by them. In addition, except for as specifically set
forth in the footnote to the table below, the selling stockholders do not have
any family relationships with our officers, directors or controlling
stockholders. Except for as specifically set forth in the footnote to the table below, no selling stockholders have held a position as an officer or director of the Company within the past three years. Other than Chardan Capital Markets LLC, which is
a registered broker-dealer, none of the selling stockholders is a broker-dealer.
Furthermore, except as specifically set forth in the footnote to the table
below, none of the selling stockholders is an affiliate of a registered
broker-dealer.
Information concerning the selling stockholders may change from
time to time, and any changed information will be presented in a prospectus
supplement as necessary. Please carefully read the footnotes located below the
table in conjunction with the information presented in the table.
3
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Beneficial
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Percentage of
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Shares of
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Beneficial
Ownership
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Percentage of
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Ownership
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Ownership
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Common
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of Common Stock
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Common
Stock
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Before the
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Before
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Stock Included
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After the
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Owned After
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Name
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Offering
(1)
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the Offering
(3)
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in Prospectus
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Offering
(1)(2)
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Offering
(3)
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Xuechu He
(4)
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2,285,715
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12.6%
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2,285,715
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0
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*
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Fresh Reward Development
Limited
(5)
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1,714,286
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9.8%
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1,714,286
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0
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*
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Best Ease Holdings Limited
(6)
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1,714,286
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9.8%
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1,714,286
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0
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*
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Justlead Investment Holding
Limited
(7)
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857,143
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5.1%
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857,143
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0
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*
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South Ocean Capital, LLC
(8)
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399,550
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2.5%
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114,286
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285,264
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1.8%
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Aaron Wolfson
(9)
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115,000
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*
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100,000
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15,000
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*
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Abraham Wolfson
(10)
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262,306
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1.6%
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100,000
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162,306
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1.0%
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Evan Genack
(11)
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325,773
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2.0%
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100,000
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225,773
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1.4%
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Harry & Charlotte Katz
(12)
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192,706
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1.2%
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71,429
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121,277
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*
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Stillwater Trust
LLC
(13)
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57,143
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*
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57,143
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0
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*
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Chardan Capital Markets LLC
(14)
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182,364
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1.2%
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56,429
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125,935
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*
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National Society For Hebrew Day
Schools
(15)
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94,406
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*
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50,000
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44,406
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*
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Steven Urbach
(16)
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54,829
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*
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40,000
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14,829
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*
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Jonas Grossman
(17)
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68,342
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*
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40,000
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28,342
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*
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George Kaufman
(18)
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108,800
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*
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38,857
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69,943
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*
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Kerry Propper
(19)
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123,157
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*
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37,143
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86,014
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*
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Eli Levitin
(20)
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74,471
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*
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18,571
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55,900
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*
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Morris Wolfson
(21)
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15,000
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*
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15,000
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0
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*
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Shai Gerson
(22)
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32,886
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*
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14,286
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18,600
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*
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Shuqin Zheng
(23)
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2,857
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*
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2,857
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0
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*
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Shaner Zhang
(24)
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1,143
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*
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1,143
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0
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*
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Total
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8,682,163
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*
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7,428,574
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1,253,589
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*Less than 1%
(1) Assumes that each selling shareholder has converted its
shares of Series E Preferred Stock into common stock.
(2) Assume that all securities offered are sold.
(3) As of May 30, 2014, a total of 16,553,021 shares of
common stock of the Company are considered to be outstanding pursuant to SEC
Rule 13d-3(d) (1). Shares of Series E Preferred Stock are deemed to be
outstanding for computing the percentage ownership of the person holding these
shares and the percentage ownership of any group of which the holder is a member
but are not deemed outstanding for computing the percentage of any other person.
(4) Includes 2,285,715 shares of common stock underlying the
Company's Series E Preferred Stock.
(5) Includes 1,714,286 shares of common stock underlying the
Companys Series E Preferred Stock. Congyan Xue maintains voting and dispositive
control over the securities held by Fresh Reward Development Limited.
(6) Includes 1,714,286 shares of common stock underlying the
Companys Series E Preferred Stock. Xiuzhen Lin maintains voting and dispositive
control over the securities held by Best Ease Holdings Limited.
(7) Includes 857,143 shares of common stock underlying the
Companys Series E Preferred Stock. Xiaoyi Sun maintains voting and dispositive
control over the securities held by Justlead Investment Holding Limited.
(8) Includes 114,286 shares of common stock underlying the
Companys Series E Preferred Stock. Steven Oliveira, a former director of the Company who resigned in March 2011, maintains voting and
dispositive control over the securities held by South Ocean Capital, LLC.
(9) Includes 100,000 shares of common stock underlying the
Companys Series E Preferred Stock.
(10) Includes 100,000 shares of common stock
underlying the Companys Series E Preferred Stock.
4
(11) Includes 100,000 shares of common stock underlying the
Companys Series E Preferred Stock.
(12) Includes 71,429 shares of common stock
underlying the Companys Series E Preferred Stock.
(13) Includes 57,143 shares of common stock underlying the
Companys Series E Preferred Stock. Christopher S. Brody maintains voting and
dispositive control over the securities held by Stillwater Trust LLC.
(14) Includes 56,429 shares of common stock underlying the
Companys Series E Preferred Stock. Kerry Propper maintains voting and
dispositive control over the securities held by Chardan Capital Markets LLC.
(15) Includes 50,000 shares of common stock underlying the
Companys Series E Preferred Stock. Aaron Adler maintains voting and dispositive
control over the securities held by National Society For Hebrew Day Schools.
(16) Includes 40,000 shares of common stock underlying the Companys Series E
Preferred Stock. Steven Urbach is an affiliate of a broker-dealer and made the
representations that he purchased our securities in the ordinary course of
business and at the time of purchase of the securities to be resold, it had no
agreements or understandings, directly or indirectly, with any person to
distribute the securities. Steven Urbach is also the brother of Marc Urbach, the
Companys President and Chief Financial Officer.
(17) Includes 40,000 shares of common stock underlying the
Companys Series E Preferred Stock. Jonas Grossman is an affiliate of a
broker-dealer and made the representations that he purchased our securities in
the ordinary course of business and at the time of purchase of the securities to
be resold, it had no agreements or understandings, directly or indirectly, with
any person to distribute the securities.
(18) Includes 38,857 shares of common stock underlying the
Companys Series E Preferred Stock. George Kaufman is an affiliate of a
broker-dealer and made the representations that he purchased our securities in
the ordinary course of business and at the time of purchase of the securities to
be resold, it had no agreements or understandings, directly or indirectly, with
any person to distribute the securities.
(19) Includes 37,143 shares of common stock underlying the
Companys Series E Preferred Stock. Kerry Propper is an affiliate of a
broker-dealer and made the representations that he purchased our securities in
the ordinary course of business and at the time of purchase of the securities to
be resold, it had no agreements or understandings, directly or indirectly, with
any person to distribute the securities.
(20) Includes 18,571 shares of common stock underlying the
Companys Series E Preferred Stock.
(21) Includes 15,000 shares of common stock
underlying the Companys Series E Preferred Stock.
(22) Includes 14,286 shares of common stock underlying the
Companys Series E Preferred Stock. Shai Gerson is an affiliate of a
broker-dealer and made the representations that he purchased our securities in
the ordinary course of business and at the time of purchase of the securities to
be resold, it had no agreements or understandings, directly or indirectly, with
any person to distribute the securities.
(23) Includes 2,857 shares of common stock underlying the
Companys Series E Preferred Stock.
(24) Includes 1,143 shares of common stock
underlying the Companys Series E Preferred Stock.
PLAN OF DISTRIBUTION
The selling stockholders, may, from time to time, sell,
transfer or otherwise dispose of any or all of their shares of our common stock
or interests in shares of our common stock on any stock exchange, market or
trading facility on which the shares are traded or in private transactions.
These dispositions may be at fixed prices, at prevailing market prices at the
time of sale, at prices related to the prevailing market price, at varying
prices determined at the time of sale, or at negotiated prices.
The selling stockholders may use any one or more of the
following methods when disposing of shares or interests therein:
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ordinary brokerage transactions and
transactions in which the broker-dealer solicits purchasers;
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block trades in which the broker-dealer will
attempt to sell the shares as agent, but may position and resell a portion
of the block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and
resale by the broker-dealer for their accounts;
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5
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an exchange distribution in accordance with the
rules of the applicable exchange;
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privately negotiated transactions;
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short sales effected after the date the
registration statement of which this prospectus is a part is declared
effective by the SEC;
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through the writing or settlement of options or
other hedging transactions, whether through an options exchange or
otherwise;
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broker-dealers may agree with the selling
stockholders to sell a specified number of such shares at a stipulated
price per share; and
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a combination of any such methods of sale.
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The selling stockholders may, from time to time, pledge or
grant a security interest in some or all of the shares of our common stock owned
by them and, if they default in the performance of their secured obligations,
the pledgees or secured parties may offer and sell the shares of our common
stock, from time to time, under this prospectus, or under an amendment to this
prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act amending the list of selling stockholders to include the pledgee, transferee
or other successors in interest as selling stockholders under this prospectus.
The selling stockholders also may transfer the shares of our common stock in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this
prospectus.
In connection with the sale of our common stock or interests
therein, the selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn engage in
short sales of our common stock in the course of hedging the positions they
assume. The selling stockholders may also sell shares of our common stock short
and deliver these securities to close out its short position, or loan or pledge
the shares of our common stock to broker-dealers that in turn may sell these
securities. The selling stockholders may also enter into option or other
transactions with broker-dealers or other financial institutions or the creation
of one or more derivative securities which require the delivery to such
broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
The aggregate proceeds to the selling stockholders from the
sale of shares of our common stock offered by them will be the purchase price of
the common stock less discounts or commissions, if any. The selling stockholders
reserve the right to accept and, together with their agents from time to time,
to reject, in whole or in part, any proposed purchase of our common stock to be
made directly or through agents. We will not receive any of the proceeds from
this offering.
Broker-dealers engaged by the selling stockholders may arrange
for other broker-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling stockholders (or, if any broker-dealer
acts as agent for the purchase of shares, from the purchaser) in amounts to be
negotiated. The selling stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling stockholders also may resell all or a portion of
the shares in open market transactions in reliance upon Rule 144 under the
Securities Act, provided that they meet the criteria and conform to the
requirements of that rule.
The selling stockholders and any underwriters, broker-dealers
or agents that participate in the sale of our common stock or interests therein
may be deemed to be underwriters within the meaning of Section 2(11) of the
Securities Act. Any discounts, commissions, concessions or profit they earn on
any resale of the shares may be underwriting discounts and commissions under the
Securities Act. Selling stockholders who are underwriters within the meaning
of Section 2(11) of the Securities Act will be subject to the prospectus
delivery requirements of the Securities Act. We know of no existing arrangements
between the selling stockholders and any other stockholder, broker, dealer,
underwriter, or agent relating to the sale or distribution of the shares, nor
can we presently estimate the amount, if any, of such compensation. See Selling
Stockholders for description of any material relationship that a stockholder
has with us and the description of such relationship.
To the extent required, the shares of our common stock to be
sold, the names of the selling stockholders, the respective purchase prices and
public offering prices, the names of any agents, dealers or underwriters,
any applicable commissions or discounts with respect to a
particular offer will be set forth in an accompanying prospectus supplement or,
if appropriate, a post-effective amendment to the registration statement that
includes this prospectus.
6
In order to comply with the securities laws of some states, if
applicable, the shares of our common stock may be sold in these jurisdictions
only through registered or licensed brokers or dealers. In addition, in some
states the common stock may not be sold unless it has been registered or
qualified for sale or an exemption from registration or qualification
requirements is available and is complied with.
We have advised the selling stockholders that the
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of shares in the market and to the activities of the selling stockholders
and their affiliates. In addition, we will make copies of this prospectus (as it
may be supplemented or amended from time to time) available to the selling
stockholders for the purpose of satisfying the prospectus delivery requirements
of the Securities Act. The selling stockholders may indemnify any broker-dealer
that participates in transactions involving the sale of the shares against
certain liabilities, including liabilities arising under the Securities Act.
The Company is required to pay all fees and expenses incident
to the registration of the shares.
LEGAL MATTERS
The validity of the common stock offered by this prospectus
will be passed upon for us by Sherman & Howard LLC, Las Vegas, Nevada.
EXPERTS
The consolidated financial statements of the Company as of
December 31, 2013 and 2012 and for the years ended December 31, 2013 and 2012
incorporated in this prospectus by reference have been audited by UHY LLP, an
independent registered public accounting firm, and are incorporated in reliance
upon their report dated March 31, 2014, given upon such
firms authority as experts in auditing and accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement on Form S-3
under the Securities Act with respect to the securities offered in this
offering. This prospectus does not contain all of the information set forth in
the registration statement. For further information with respect to us and the
securities offered in this offering, we refer you to the registration statement
and to the attached exhibits. With respect to each such document filed as an
exhibit to the registration statement, we refer you to the exhibit for a more
complete description of the matters involved.
You may inspect our registration statement and the attached
exhibits and schedules without charge at the public reference facilities
maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may
obtain copies of all or any part of our registration statement from the SEC upon
payment of prescribed fees. You may obtain information on the operation of the
public reference room by calling the SEC at 1-800-SEC-0330.
Our SEC filings, including the registration statement and the
exhibits filed with the registration statement, are also available from the
SECs website at www.sec.gov, which contains reports, proxy and information
statements and other information regarding issuers that file electronically with
the SEC.
7
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference in this
prospectus certain of the information we file with the SEC. This means we can
disclose important information to you by referring you to another document that
has been filed separately with the SEC. The information incorporated by
reference is considered to be part of this prospectus, and will modify and
supersede the information included in this prospectus to the extent that the
information included as incorporated by reference modifies or supersedes the
existing information. Any statement so modified or superseded will not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus. We incorporate by reference the documents listed below and all
additional documents that we file with the SEC under the terms of Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, that are made after the initial
filing date of the registration statement of which this prospectus is a part and
before the termination of any offering of securities offered by this
prospectus.
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Our Annual Report on Form 10-K for the fiscal
year ended December 31, 2013, filed March 31, 2014;
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Our Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2014, filed on May 15, 2014;
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The description of our common stock, $0.001 par
value per share, contained in our Registration Statement on Form 8-A,
filed on May 29, 2012, pursuant to Section 12(b) of the Exchange Act, as
amended; and
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Any statement made in this prospectus concerning the contents
of any contract, agreement or other document is only a summary of the actual
document. You may obtain a copy of any document summarized in this prospectus
and any or all of the information that has been incorporated by reference in
this prospectus at no cost by writing or calling us at our mailing address and
telephone number: YOU On Demand Holdings, Inc., 27 Union Square West, Suite 502,
New York, New York 10003; telephone number: (212) 206-1216. Each statement
regarding a contract, agreement or other document is qualified in its entirety
by reference to the actual document.
8
7,428,574 Shares of Common Stock
YOU ON DEMAND HOLDINGS, INC.
PROSPECTUS
June 2, 2014
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution.
The following is a statement of estimated expenses, to be paid
solely by us, in connection with the issuance and distribution of the securities
being registered hereby:
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Amount to be
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Paid*
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SEC Registration Fee
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$
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2,545
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Printing Fees and Expenses
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2,000
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Legal Fees and Expenses
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150,000
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Accounting Fees and Expenses
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15,000
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Miscellaneous
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1,000
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Total
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$
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173,544
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___________
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* All amount shown herein, except the SEC
registration fee, are estimated and may vary based upon, among other
things, the number of issuances and amount of securities offered. We will
pay all of these expenses.
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Item 15. Indemnification of Directors and Officers.
We are a Nevada corporation and generally governed by the
Nevada Private Corporations Law, Title 78 of the Nevada Revised Statutes, or
NRS.
Section 78.138 of the NRS provides that, unless the
corporations articles of incorporation provide otherwise, a director or officer
will not be individually liable unless it is proven that (i) the director's or
officer's acts or omissions constituted a breach of his or her fiduciary duties,
and (ii) such breach involved intentional misconduct, fraud or a knowing
violation of the law.
Section 78.7502 of the NRS permits a company to indemnify its
directors and officers against expenses, judgments, fines, and amounts paid in
settlement actually and reasonably incurred in connection with a threatened,
pending, or completed action, suit, or proceeding, except an action by or on
behalf of the corporation, if the officer or director (i) is not liable pursuant
to NRS 78.138, or (ii) acted in good faith and in a manner the officer or
director reasonably believed to be in or not opposed to the best interests of
the corporation and, if a criminal action or proceeding, had no reasonable cause
to believe the conduct of the officer or director was unlawful. Section 78.7502
of the NRS also requires a corporation to indemnify its officers and directors
if they have been successful on the merits or otherwise in defense of any claim,
issue, or matter resulting from their service as a director or officer.
Section 78.751 of the NRS permits a Nevada company to indemnify
its officers and directors against expenses incurred by them in defending a
civil or criminal action, suit, or proceeding as they are incurred and in
advance of final disposition thereof, upon determination by the stockholders,
the disinterested board members, or by independent legal counsel. Section 78.751
of NRS requires a corporation to advance expenses as incurred upon receipt of an
undertaking by or on behalf of the officer or director to repay the amount if it
is ultimately determined by a court of competent jurisdiction that such officer
or director is not entitled to be indemnified by the company if so provided in
the corporations articles of incorporation, bylaws, or other agreement. Section
78.751 of the NRS further permits the company to grant its directors and
officers additional rights of indemnification under its articles of
incorporation, bylaws or other agreement.
Section 78.752 of the NRS provides that a Nevada company may
purchase and maintain insurance or make other financial arrangements on behalf
of any person who is or was a director, officer, employee or agent of the
company, or is or was serving at the request of the company as a director,
officer, employee or agent of another company, partnership, joint venture, trust
or other enterprise, for any liability asserted against him and liability and
expenses incurred by him in his capacity as a director, officer,
employee or agent, or arising out of his status as such, whether or not the
company has the authority to indemnify him against such liability and
expenses.
II-1
Our Articles of Incorporation and Bylaws implement the
indemnification and insurance provisions permitted by Chapter 78 of the NRS by
providing that:
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We shall indemnify our directors and officers
to the fullest extent permitted by the NRS against expense, liability and
loss reasonably incurred or suffered by them in connection with their
service as an officer or director; and
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We may purchase and maintain insurance, or make
other financial arrangements, on behalf of any person who holds or who has
held a position as a director, officer, or representative against
liability, cost, payment, or expense incurred by such person.
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At the present time, there is no pending litigation or
proceeding involving a director, officer, employee or other agent of ours in
which indemnification would be required or permitted. We are not aware of any
threatened litigation or proceeding which may result in a claim for such
indemnification.
Item 16. Exhibits.
The list of exhibits in the Exhibit Index to this prospectus is
incorporated herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of the 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
the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the effective registration statement;
and
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement;
Provided,
however
, that paragraphs (1)(i), (1)(ii) and (1)(iii) of this section 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 SEC
by the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2) 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.
(3) 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.
(4) That, for the purpose of determining liability under the
Securities Act to any purchaser:
II-2
(i) Each prospectus filed by the
registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(ii) Each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering, other
than registration statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A, shall be deemed to be part of and included in
the registration statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such date of first use.
(5) That, for purposes of determining any liability under the
Securities Act, each filing of the registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plans annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the 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.
(6) 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 SEC 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.
II-3
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 of filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, New York, on May 30, 2014.
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YOU On Demand Holdings, Inc.
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By:
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/s/
Marc Urbach
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Marc Urbach
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President and Chief Financial Officer
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(Principle Financial and Accounting Officer)
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS
, that each person whose
signature appears below constitutes and appoints Shane McMahon and Marc Urbach,
and each of them, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and re-substitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this registration statement (and any
registration statement filed pursuant to Rule 462(b) under the Securities Act,
as amended, for the offering which this Registration Statement relates), and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the SEC, granting unto said attorneys-in-fact agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
*****
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities indicated on May 30, 2014.
Signature
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Title
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/s/ Xuesong Song
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Xuesong Song
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Director and Executive Chairman
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/s/ Shane McMahon
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Shane McMahon
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Chairman of the Board
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(Principle Executive Officer)
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/s/ Weicheng Liu
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Weicheng Liu
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Chief Executive Officer and Director
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/s/ Marc Urbach
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Marc Urbach
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President and Chief Financial Officer
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(Principle Financial and Accounting Officer)
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/s/ James Cassano
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James Cassano
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Director
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/s/ Clifford
Higgerson
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Clifford Higgerson
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Director
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/s/ Jin Shi
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Jin Shi
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Director
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/s/ Arthur Wong
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Arthur Wong
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Director
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EXHIBIT INDEX
Exhibit
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Description
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Number
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3.1
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Articles of
Incorporation of the Company as filed with the Secretary of State of
Nevada (Incorporated by reference to Exhibits 3.1 to the Companys Annual
Report on Form 10-K filed on March 30, 2012).
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3.2
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Second Amended
and Restated Bylaws of the Company (incorporated by reference to Exhibit
3.1 to the Companys Current Report on Form 8-K filed on February 6,
2014).
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5.1
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Opinion of Sherman & Howard LLC**
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23.1
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Consent of UHY LLP.*
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23.2
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Consent of Sherman & Howard LLC (included in Exhibit 5.1).**
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24
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Power of Attorney
(included on signature page hereof).
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*Filed herewith.
** Filed Previously
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