UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 10-Q/A
(Amendment No. 1)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2015
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________to __________
Commission File Number: 000-19644
YOU ON DEMAND HOLDINGS,
INC.
(Exact name of registrant as specified in its
charter)
Nevada |
20-1778374 |
(State or other jurisdiction of incorporation or
organization) |
(I.R.S. Employer Identification No.)
|
375 Greenwich Street, Suite 516
New York, New York
10013
(Address of principal executive offices)
212-206-1216
(Registrant's telephone number,
including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark whether the registrant has submitted
electronically and posted on its corporate Website, if any, every Interactive
Data File required to be submitted and posted pursuant to Rule 405 of Regulation
S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such
shorter period that the registrant was required to submit and post such files).
Yes [X] No [ ]
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 larger accelerated filer,
accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
Large accelerated filer [ ] |
Accelerated
filer
[ ] |
Non-accelerated filer [ ] |
Smaller reporting company [X]
|
Indicate by check mark whether the registrant is a shell
company (as defined in Rule 12b-2 of the Exchange Act).
Yes [ ] No [X]
Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date: 23,835,370 shares as of May 12, 2015.
Explanatory Note
YOU On Demand Holdings, Inc. (the
Company) is filing this Amendment No. 1 (this Amendment) to its Quarterly
Report on Form 10-Q filed with the Securities and Exchange Commission (the
Commission) on May 14, 2015 for the quarterly period ended March 31, 2015 (the
Original Report) solely to refile Exhibit 10.1 (the Exhibit) to the Original
Report with revised redactions in response to comments received from the
Commission regarding a confidential treatment request submitted to the
Commission with respect to the Exhibit. In addition, as required by Rule 12b15
under the Securities Exchange Act of 1934, as amended, new certifications by our
principal executive officer and principal financial officer are filed as
exhibits to this Amendment.
This Amendment is an exhibit-only
filing. No other changes have been made to the Original Report. This Amendment
speaks as of the original filing date of the Original Report and does not
reflect any events that occurred at a date subsequent to the filing of the
Original Report or modify or update those disclosures therein in any way.
Accordingly, this Amendment should be read in conjunction with the Companys
filings made with the Commission subsequent to the filing of the Original
Report.
PART II - OTHER INFORMATION
Item 6. Exhibits
See Exhibit Index.
EXHIBIT INDEX
* Confidential treatment requested as to portions of the
exhibit. Confidential materials omitted have been filed separately with the
Securities and Exchange Commission.
SIGNATURES
In accordance with the
requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly
authorized on July 7, 2015.
YOU ON DEMAND HOLDINGS, INC.
By: /s/ Weicheng
Liu |
|
Name: Weicheng Liu |
Title: Chief Executive
Officer |
(Principal Executive
Officer and an Authorized Officer) |
Exhibit 10.1
CERTAIN MATERIAL (INDICATED BY AN ASTERISK)
HAS BEEN
OMITTED FROM THIS DOCUMENT
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE
SECURITIES AND
EXCHANGE COMMISSION.
Mobile Phone Video-On-Demand (VOD) Business Cooperation
Agreement
Party A: C Media Limited
Address: CN11,
LEGEND TOWN, No. 1 Balizhuang Dongli, Chaoyang District, Beijing
Contact: [*****]
Tel: [*****]
Party B: Zhonghai Video Media (Beijing) Co., Ltd.
Address: Suite 2603, Tower A, Office Park, 10 Jin Tong West Road,
Chaoyang District, Beijing
Contact: [*****]
Tel: [*****]
I. Cooperation Content
1. Service Mode
Party A shall operate the YOU
Hollywood branded movie zone and make sure that each end user can view Party
Bs subscription video on demand (SVOD) products and true video on demand
(TVOD) products after paying the viewing fee via cooperation zone.
Party B shall provide Party A with licensed content in
accordance with a document of licensed content preselected by Party A
(preselected movie list), and provide preliminary services including licensed
content integration and technical test.
2. Authorization
The Parties shall jointly work and
cooperate on the mobile phone video service platform permitted by the legal
license owned by Party A. Party A shall transmit and broadcast licensed content
under this Agreement. Party A may not use licensed content for any purpose other
than the one expressly stated herein.
3. Broadcast Time
In each year of cooperation,
subject to the license agreement signed by and between Party B and upstream
movie studios, the broadcast time of SVOD shall be 12 months and the broadcast
time of new TVOD movies shall be 3 months. The specific broadcast time of each
movie (movie usage period) shall be counted from the date when Party A first
releases that movie to all zones. Party A shall release movies in strict accordance with the requirement of movie use
period and timely change movies upon expiration of movie use period.
4. Licensed Content
|
1) |
During cooperation, Party B shall provide Party A with
[*****]. |
|
2) |
TVOD service period shall be [*****], and Party B shall
provide Party A with at least [*****] within the service period. |
|
3) |
Party B reserves the right to replace movies, provided
that movies following replacement shall be of the same grade as movies
before replacement. |
|
4) |
All licensed content provided by Party B may be used
within the scope agreed by the Parties. The list of all optional licensed
content shall be provided by Party B to Party A prior to execution of this
Agreement. In case of other change, the supplemental agreement concluded
by the Parties shall prevail. |
5. Technical Specification
Party B shall make sure
that high definition, standard definition licensed content will be transmitted
in [*****] format. Specific technical specifications shall be negotiated and
determined the Parties in accordance with the result of Party Bs technical test
and Party As broadcast or transmission requirements.
6. Release of Licensed Content
Party B may release
movies to Party A through satellite, dedicated network or encrypted hard drive.
The Parties will negotiate and agree on economic and secure methods to receive
licensed content provided by Party B.
II. Rights and obligations of the Parties
1. Party As rights and obligations:
|
1) |
Party A agrees that Party B may within the term hereof
use Party As trademark and name for the purposes of identifying and
publicizing the cooperation project designated in this
Agreement. |
|
2) |
Party A shall within its premises have necessary content
security management measures to prevent any and all unauthorized access
to, replication, display, transmission or deletion of licensed content.
Within the term hereof, Party A shall consistently implement all technical
and management measures established to satisfy technical requirements on
content protection. In case that a certain security loophole on Party As
protection measures appears and is likely to result in illegal access to,
stealing of licensed content or other losses, Party A shall forthwith
notify the circumstance to Party B and promptly take all necessary
remedial measures to repair such security loophole. Meanwhile, Party B
shall have the right to require Party A to suspend the broadcast of
licensed content or terminate this Agreement. |
|
3) |
Party A as the operator of the contemplated project shall
be responsible for addressing all inquiries and complaints from end users
relating to licensed content. In respect to all operational matters, Party
B shall not be held liable to Party As end users. |
|
4) |
Party A may not arbitrarily interrupt or stop use of
Party Bs licensed content by users |
|
5) |
Party A shall have the right to conduct necessary review
on licensed content through negotiation of the Parties in accordance with
the national radio and TV censorship. If there is any obscene, violent
content or other content that violates laws and public order and moral,
Party A shall have the right to require Party B to make corresponding
treatment. |
|
|
|
2. |
Party Bs rights and obligations: |
|
|
|
|
1) |
Party B shall be responsible to provide licensed content
and provide preliminary technical test and content preparation for brand
zone. |
|
2) |
During provision of program media, Party B shall also
provide Party A with corresponding publicity materials of relevant
programs for Party As publicity, including but not limited to program
list, movie files, movie posters in psd format, trailers and movie tidbits
in ts or mov format, and Party B agrees that Party A may use the foregoing
materials for program publicity. |
|
3) |
Party B shall have the right to make suggestions on
promotion methods, marketing strategies and service and fee-charging
models of the content provided by it, and Party B has the ultimate pricing
power on licensed content provided by it. |
III. Method of Cooperation and Payment
|
|
|
|
1) |
For proceeds generated from TVOD products under this Agreement, the Parties shall cooperate
under the model of bottom guarantee and profit sharing. Bottom amount shall be
RMB1,200,000 ("Bottom Amount"). Bottom Amount shall be paid off in two (2)
installments: |
|
|
|
|
(i) |
RMB 600,000 shall be paid within ten (10)
workdays after execution of this Agreement; |
|
(ii) |
RMB 600,000 shall be paid in the fourth
(4th) month from the beginning of licensed content use
period; |
Within the cooperation period, if the
gross proceeds obtained by Party B from the profit sharing of movie cooperation
zone does not exceed Bottom Amount of RMB1,200,000 (calculated in line with
general accounting rules currently adopted by Party A), Party A shall still pay
Party B Bottom Amount of RMB1,200,000; if the gross proceeds obtained by Party B
from the profit sharing of movie cooperation zone exceeds Bottom Amount
("Portion in Excess"), the Parties shall share such Portion in Excess according
to the ratio of [*****] Party A shall notify Party B in writing of such Portion
in Excess within three (3) workdays of the month immediately following the month
of occurrence of Portion in Excess. Meanwhile, Party A shall, as from the month
immediately following the month of occurrence of Portion in Excess, pay Party B
the agreed profit share within three (3) workdays after the end of each month.
|
|
|
|
2) |
For proceeds generated from SVOD products under this Agreement, the
Parties shall cooperate under the profit sharing model under which Party A shall
take [*****]. Party A shall pay Party B the agreed profit share within three (3)
workdays after the end of each month. |
|
|
2. |
Tax Liability: Party A and Party B shall pay their
respective taxes. |
3. |
Mode of Payment: Party A shall pay Party B by
remitting the monies into the bank account shown below |
Account-opening bank:
[*****]
Account name: Zhonghai Video Media (Beijing) Co., Ltd.
Account
No.: [*****]
4. |
Payment Delay: If Party A delays in settlement of
the monies payable to Party B hereunder without justification, Party B
shall have the right to require Party A to pay liquidated damages for
delay. If such delay lasts for more than 30 days and Party A fails to
fulfill its obligation of settlement after Party Bs pressing for
settlement, Party B shall have the right to terminate this Agreement
unilaterally. |
Settlement Data: Party A agrees to keep true and
complete daily sales data within the term hereof. Party A shall, within three
(3) workdays after the beginning of each month, provide Party B with the
previous months sales data and other information reasonably required by Party B
in the format as stated in Schedule 1 hereto. Party B may, during the term of
this Agreement and within two years after expiration or termination hereof, with
prior written notice to Party A audit any information related to Party Bs
licensed content in Party As account and sales record within the term hereof
for the purpose of verifying sales data.
IV. Representations and Warranties by the Parties
1. |
Either party hereby represents and warrants to the other
party as follows: it is a legal person incorporated and validly existing
under the laws of China and has all rights, capacity and authorization to
enter into this Agreement; it has obtained all necessary procedures for
execution and performance of this Agreement, including but not limited to
full operation qualifications and compliance with its business scope; its
performance of this Agreement does not contravene Chinese laws,
regulations and bylaws or any contract that binds it; this Agreement, upon
execution, constitutes an lawful and valid obligation that is binding upon
it and enforceable against it pursuant to the terms and conditions
hereof. |
|
|
2. |
Without prejudice to Article 5 Limitation of Liability
hereof, the Parties agree that either party shall indemnify and hold
harmless the other party from and against any and all liabilities,
obligations, losses, compensations, penalties, expenses and costs
(including costs of relief) incurred to, suffered or borne by the other
party due to its untrue representations and warranties made
hereunder. |
V. Limitation of Liability
1. |
To the maximum extent permitted by applicable law, Party
B expressly indicates that it does not provide any explicit or implicit
warranty on video content, including but not limited to any implicit
warranty and liability for merchantability, applicability, reliability,
accuracy, integrity, being free of virus and being free of error.
|
2. |
Notwithstanding anything to the contrary contained
herein, to the maximum extent permitted by applicable law, Party B shall
in no case be held liable for any accidental, indirect, special or
consequential damages or claim incurred by use of Party Bs application
program or provided video content by Party A or users, or relating to
service provided by Party B in any respect whatsoever. |
|
|
3. |
The limitation of Party Bs liability to Party A under
this Agreement shall not exceed the aggregate amount of all profits likely
to be obtained by Party B due to this Agreement. |
VI. Legal Relationship between the Parties
1. |
Each party shall be a separate legal entity. This
Agreement shall under no circumstances be construed to form any agency or
partnership between the Parties hereto, and neither party shall provide
any form of warranty or guaranty for the other party or take joint and
several liability to the other party under this Agreement. |
|
|
2. |
Neither party shall transfer or assign its rights and
obligations hereunder or any part thereof to any third party without the
other partys prior written consent. |
VII. Intellectual Property Right
1. |
The Parties understand and acknowledge that the
intellectual property rights of technologies of the cooperation project
provided by Party A under this Agreement shall remain with Party A or
original right holder, and the intellectual property rights of
technologies provided by Party B hereunder shall remain with Party B or
original right holder, and that the cooperation contemplated herein shall
not result in any form of transfer or change of such intellectual property
rights. |
|
|
2. |
The copyright of licensed content provided by Party B and
the intellectual property right of some relevant marketing materials shall
belong to relevant third parties, and nothing in this Agreement shall be
constructed as an explicit or implicit grant of intellectual property
right by Party B to Party A or other parties. Without Party Bs prior
written consent, Party A may not use licensed content and relevant
marketing materials provided by Party B for any purpose not permitted by
this Agreement. With respect to damage to Party B or any third party
incurred by Party As infringement upon intellectual property right of
licensed content and relevant marketing materials, Party A agrees to
compensate for Party Bs losses, including legal costs, attorney fee,
compensation monies paid to third party and other expenses. |
|
|
3. |
Party A may not make any modification, deletion, cut,
change or addition to licensed content and metadata contained therein
(i.e., data pertaining to movie industry, including synopsis, credits,
rating, genre, movie length). |
|
|
4. |
This Article shall survive the expiration, cancellation
or termination of this Agreement. |
VIII. Confidentiality
1. |
Each party shall maintain the confidentiality of the
content of this Agreement, commercial, financial, technical or product
information and user data of the other party received or obtained as a
result of performing this Agreement or within the term of this Agreement,
or other documents or information marked confidential documents or
information, or any other information without such marking whose
confidentiality the receiving party shall have reasonably known
(collectively known as "Confidential Information"), and may not disclose
Confidential Information to any third party irrelevant to this Agreement
without the disclosing partys prior written consent. The obligation of
confidentiality not only applies to the Parties hereto but also extend to
their respective employees, agents, representatives and/or consultants;
the Parties agree that any act by either partys employees, agents,
consultants or representatives for the purpose of performing this
Agreement shall be deemed an act of that party, and that the foregoing
party shall bear legal liability for such act. |
|
|
2. |
This Article shall survive the expiration, cancellation
or termination of this Agreement. After expiration or termination of this
Agreement, Party A shall within three (3) workdays return source files of
licensed content and all materials provided by Party B and delete all such
information (and Party A shall certify such deletion in writing to Party
B). |
IX. Force Majeure
1. |
The term "force majeure" means any uncontrollable,
unforeseeable and unavoidable objective event that prevents, affects or
delays performance by a party hereto of its obligations or any part
thereof under this Agreement. An event of force majeure includes, without
limitation, government act, enactment and adjustment of laws, regulations,
ordinances and bylaws, natural disasters, war, computer virus, hacking,
uncontrollable network failure or other similar events. |
|
|
2. |
If either party or both parties hereto are prevented by
force majeure from performing all or some of their respective obligations
hereunder, neither party shall not bear the liability for breach of
contract. The party (or parties) prevented by force majeure shall within
fifteen (15) natural days after occurrence of force majeure notify the
particulars of such event in writing to the other party and present
relevant documentary evidence. After the cessation of force majeure, the
prevented party or parties shall resume their performance of this
Agreement. |
X. Term and Termination of Agreement
1. |
This Agreement shall take effect on the date of execution
by the Parties and remain effective for one (1) year thereafter. If either
party intends to terminate this Agreement, the Parties shall confirm the
termination hereof in writing after negotiation and agreement. |
|
|
2. |
If either party hereto breaches any obligation agreed
herein, the non-breaching party may notify the breaching party in writing
to require the latter to perform its obligations hereunder and take the
corresponding liability. If the breaching party fails to perform the
relevant obligation within thirty (30) natural days after receipt of
written notice, the non-breaching party shall have the right to terminate
this Agreement by giving written notice to the breaching party, and this
Agreement shall terminate automatically upon the date when such notice is
delivered to the breaching party. After termination of this Agreement, the
breaching party shall also bear the corresponding liability for breach of
contract. |
3. |
In any of the following circumstances, any party shall
have the right to terminate this Agreement at any time with written notice
to the other party: |
|
1) |
The other party files for bankruptcy, declares bankruptcy
or enters into the liquidation or dissolution procedure; |
|
2) |
A third party legally confiscates or takes over the
ownership right or assets of the other party, or a receiver is appointed
to take over such assets; or |
|
3) |
The other party closes business, or purports to close
business. |
|
|
|
4. |
The expiration or termination of this Agreement does not
affect any outstanding settlement or the payment obligation of either
party under this Agreement and other rights or obligations that already
occur prior to the date of expiration. Party A shall, within fifteen (15)
natural days of the date of expiration or termination hereof, pay Party A
all amounts payable under this Agreement. |
|
|
|
5. |
Obligations surviving termination of this Agreement: If
Party A possesses or controls any of Party Bs licensed content, Party A
shall forthwith return the same to Party B. If such licensed content is
already loaded in any format into file server or other storage space,
Party A shall delete the foregoing licensed content within five (5)
workdays (provided that Party A shall certify such deletion in writing to
Party B). |
XI. Miscellaneous
1. |
The conclusion, validity, construction and performance of
this Agreement and the resolution of any dispute under this Agreement
shall be governed by the laws of China. Any and all disputes arising out
of or in connection with this Agreement shall be first resolved by the
Parties through amicable consultation. If any dispute fails to be resolved
within thirty (30) natural days after either party notifies the other
party notice of such dispute, either party may refer the dispute to
Beijing Peoples Court. |
|
|
2. |
Any change to this Agreement shall not be effective
unless in writing and signed by the Parties. |
|
|
3. |
If any part of this Agreement is held to contravene laws
and regulations of government or governmental department with jurisdiction
over such matter, or is held invalid or illegal, the validity of the
remainder of this Agreement shall not be affected. All other clauses
hereof shall remain effective as an entirety and be binding upon the
Parties. |
|
|
4. |
This Agreement constitutes the only and entire agreement
between the Parties and supersedes all prior negotiations, commitments and
written opinions with respect to the subject matter
hereof. |
5. |
If either party fails to exercise or delays the exercise
of any of its rights, powers or privileges hereunder, such failure or
delay shall not be deemed a waiver of relevant rights, powers or
privileges; and any single or partial exercise of any right, power or
privilege shall not preclude further exercise of any right, right or
privilege. |
|
|
6. |
This Agreement shall be made in four (4) counterparts and
each party shall have two (2) such counterparts. All such counterparts
shall have the same legal force and effect. |
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
Party A: |
|
Party B: |
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/s/ C Media
Limited |
|
/s/
Zhonghai Video Media (Beijing) Co., Ltd. |
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Date: March 26, 2015 |
|
Date: March 26, 2015 |
Exhibit 31.1
CERTIFICATIONS
I, Weicheng Liu, certify that:
1. |
I have reviewed this amendment to the quarterly report on
Form 10-Q of YOU On Demand Holdings, Inc.; and |
|
|
2. |
Based on my knowledge, this report does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period
covered by this report. |
Date: July 7, 2015
/s/ Weicheng
Liu |
Weicheng Liu |
Chief Executive Officer |
(Principal Executive Officer)
|
Exhibit 31.2
CERTIFICATIONS
I, Grace He, certify that:
1. |
I have reviewed this amendment to the quarterly report on
Form 10-Q of YOU On Demand Holdings, Inc.; and |
|
|
2. |
Based on my knowledge, this report does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period
covered by this report. |
Date: July 7, 2015
/s/ Grace He |
Grace He |
Vice President of Finance |
(Principal Financial and Accounting Officer)
|
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