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Tudou Holdings Ltd – ‘F-1’ on 11/9/10 – EX-10.38

On:  Tuesday, 11/9/10, at 11:07am ET   ·   Accession #:  1193125-10-253543   ·   File #:  333-170485

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

11/09/10  Tudou Holdings Ltd                F-1                   61:8.6M                                   RR Donnelley/FA

Registration Statement of a Foreign Private Issuer   —   Form F-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: F-1         Registration Statement of a Foreign Private Issuer  HTML   2.30M 
 2: EX-3.1      Memorandum and Articles of Association of the       HTML    335K 
                          Registrant                                             
 9: EX-4.10     Agreement for the Transfer and Assumption of        HTML    119K 
                          Obligations                                            
 3: EX-4.4      Series D Preferred Shares Purchase Agreement,       HTML    314K 
                          Dated as of March 26, 2008                             
 4: EX-4.5      Series E Preferred Shares Purchase Agreement,       HTML    322K 
                          Dated as of July 16, 2010                              
 5: EX-4.6      Fifth Amended and Restated Shareholders'            HTML    390K 
                          Agreement, Dated as of July 28, 2010                   
 6: EX-4.7      Fourth Amended and Restated Right of First Refusal  HTML    164K 
                          and Co-Sale Agreement                                  
 7: EX-4.8      Fourth Amended and Restated Voting Agreement,       HTML    207K 
                          Dated as of July 28, 2010                              
 8: EX-4.9      Sale and Purchase Agreement, Dated as of September  HTML    237K 
                          21, 2010                                               
10: EX-10.1     2010 Share Incentive Plan                           HTML    121K 
19: EX-10.10    English Translation of Form of Labor Contracts      HTML    120K 
20: EX-10.11    English Translation of Loan Agreement, Dated as of  HTML     40K 
                          May 10, 2006                                           
21: EX-10.12    English Translation of Proxy Agreement, Dated as    HTML     54K 
                          of May 10, 2006                                        
22: EX-10.13    English Translation of Amended Exclusive Call       HTML     85K 
                          Option Agreement                                       
23: EX-10.14    English Translation of Intellectual Property        HTML     40K 
                          Transfer Agreement                                     
24: EX-10.15    English Translation of Equipment Transfer           HTML     43K 
                          Agreement                                              
25: EX-10.16    English Translation of Loan Agreement, Dated as of  HTML     41K 
                          April 30, 2008                                         
26: EX-10.17    English Translation of Loan Agreement, Dated as of  HTML     40K 
                          October 28, 2009                                       
27: EX-10.18    English Translation of Form of Technology           HTML     67K 
                          Development Contract                                   
28: EX-10.19    English Translation of Equity Interest Pledge       HTML     59K 
                          Agreement                                              
11: EX-10.2     Form of Option Exchange Agreements                  HTML     70K 
29: EX-10.20    English Translation of Loan Agreement, Dated as of  HTML     38K 
                          May 28, 2010                                           
30: EX-10.21    English Translation of Exclusive Consultancy and    HTML     70K 
                          Service Agreement                                      
31: EX-10.22    English Translation of Supplemental Contract,       HTML     29K 
                          Dated as of August 31, 2010                            
32: EX-10.23    English Translation of Loan Agreement, Dated as of  HTML     39K 
                          April 20, 2009                                         
33: EX-10.24    English Translation of Proxy Agreement, Dated as    HTML     43K 
                          of May 20, 2009                                        
34: EX-10.25    English Translation of Exclusive Call Option        HTML     82K 
                          Agreement                                              
35: EX-10.26    English Translation of Loan Agreement, Dated as of  HTML     39K 
                          July 25, 2009                                          
36: EX-10.27    English Translation of Equity Interest Pledge       HTML     61K 
                          Agreement                                              
37: EX-10.28    English Translation of Exclusive Consultancy and    HTML     69K 
                          Service Agreement                                      
38: EX-10.29    English Translation of Supplemental Contract,       HTML     27K 
                          Dated as of August 31, 2010                            
12: EX-10.3     Form of Warrant Exchange Agreements, Dated as of    HTML    107K 
                          September 21, 2010                                     
39: EX-10.30    English Translation of Loan Agreement, Dated as of  HTML     39K 
                          February 20, 2009                                      
40: EX-10.31    English Translation of Proxy Agreement, Dated as    HTML     42K 
                          of March 2, 2009                                       
41: EX-10.32    English Translation of Exclusive Call Option        HTML     83K 
                          Agreement                                              
42: EX-10.33    English Translation of Equity Interest Pledge       HTML     54K 
                          Agreement, Dated July 1, 2009                          
43: EX-10.34    English Translation of Equity Interest Pledge       HTML     55K 
                          Agreement                                              
44: EX-10.35    English Translation of Exclusive Consultancy and    HTML     68K 
                          Service Agreement                                      
45: EX-10.36    English Translation of Supplemental Contract,       HTML     27K 
                          Dated as of August 31, 2010                            
46: EX-10.37    English Translation of Lease Agreement, Dated as    HTML     95K 
                          of February 21, 2008                                   
47: EX-10.38    English Translation of Lease Contract, Dated as of  HTML     49K 
                          August 10, 2008                                        
48: EX-10.39    English Translation of House Lease Contract, Dated  HTML    127K 
                          as of March 13, 2009                                   
13: EX-10.4     Warrant Exchange Agreement, Dated as of September   HTML     89K 
                          21, 2010                                               
49: EX-10.40    English Translation of House Lease Contract         HTML    105K 
50: EX-10.41    English Translation of Lease Contract, Dated as of  HTML     91K 
                          March 20, 2009                                         
51: EX-10.42    English Translation of Lease Contract               HTML     99K 
52: EX-10.43    English Translation of Lease Extension Agreement    HTML     48K 
53: EX-10.44    English Translation of Lease Contract               HTML     51K 
14: EX-10.5     Form of Notices of Exercise Issued by Certain       HTML     30K 
                          Warrant Holders of the Registrant                      
15: EX-10.6     Notice of Exercise Jointly Issued by Venrock        HTML     24K 
                          Associates V, L.P.                                     
16: EX-10.7     Form of Indemnification Agreement With the          HTML     69K 
                          Registrant's Directors and Officers                    
17: EX-10.8     Director Agreement, Dated as of October 28, 2010    HTML     41K 
18: EX-10.9     Director Agreement, Dated as of October 28, 2010    HTML     42K 
54: EX-21.1     Subsidiaries of the Registrant                      HTML     25K 
55: EX-23.1     Consent of Independent Registered Public            HTML     20K 
                          Accounting Firm                                        
56: EX-23.5     Consent of Sinomonitor                              HTML     21K 
57: EX-23.6     Consent of Cr-Nielsen Information Technology Co.,   HTML     20K 
                          Ltd.                                                   
58: EX-23.7     Consent of Ted Tak-Tai Lee, An Independent          HTML     21K 
                          Director Appointee                                     
59: EX-23.8     Consent of Chun Liu, An Independent Director        HTML     21K 
                          Appointee                                              
60: EX-99.1     Code of Business Conduct and Ethics                 HTML     79K 
61: EX-99.2     Opinion of Fangda Partners Regarding Certain Prc    HTML     47K 
                          Legal Matters                                          


EX-10.38   —   English Translation of Lease Contract, Dated as of August 10, 2008


This exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]



  English Translation of Lease Contract, dated as of August 10, 2008  

 

Exhibit 10.38

English Translation

LEASE CONTRACT

 

Landlord: Li Yang    (“Party A”)

Legal Address:

Passport No.: AB402950

Tel: 010-58696461

Tenant: Quan Toodou Network Science and Technology Co., Ltd.        (“Party B”)

Registered Address: Room 801, CYTS Plaza, No. 5, South Dongzhimen Street, Beijing

Contact: Xuelei Hou

Tel: 010-58156555

Party A is a citizen of the People’s Republic of China. Party A hereby agrees to lease and Party B hereby agrees to rent the House located at Jianwai SOHO, Beijing. Now, therefore, both Parties enter into this Contract. This Contract is entered into on the 10th day of August, 2009 by and between Party A and Party B. In order to specify the rights and obligations of both Parties, both Parties hereby enter into the following terms and conditions.

ARTICLE 1 LEASED UNIT

In accordance with the terms and conditions of this Contract, Party B hereby rents the property owned by Party A, which is located at Room 2202 and Room 2206, 22/F, No. 18 Building, Jianwai SOHO, No. 39, Dong San Huan Middle Road, Chaoyang, Beijing (“Leased Unit”).

The gross floor space of the Leased Unit is 436.54 square meters. Party B’s designated user will use the Leased Unit only as office. Without the consent of Party A, Party B may not sublease or assign the Leased Unit or any part thereof to any third party, or jointly use the same with any third party. Party B may not use the exterior wall of the building.

ARTICLE 2 LEASE TERM AND RENT-FREE PERIOD

2.1 The lease term shall be two (2) years, as from August 11, 2009 to August 10, 2011 (“Lease Term”).

 

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2.2 The rent-free period shall be 30 days, as from August 11, 2009 to September 10, 2009. During the rent-free period, Party B is not required to pay the rent and the property management fees.

ARTICLE 3 RENT AND OTHER FEES

3.1 Party B must pay the rent to Party A in accordance with this Contract at the rent rate of RMB43,854.08/month, including the fees of heating and initial internet connection (change to any of the costs will not change the total amount of the rent), but excluding fees of water, electricity, gas, local telephone, IP long distance telephone, broadband internet connection, property management fee, tax and any other fees and charges incurred from any other facilities exclusively used by Party B. If there is any other fee or charge incurred from the use of the Leased Unit by Party B, Party A may demand Party B to pay such fee or charge.

3.2 Party A shall issue a valid taxation invoice for the rent to Party B in accordance with the amount of rent specified herein. The tax of RMB2,302.33 per month incurred from the payment of rent shall be borne by Party B.

3.3 Party A shall issue a valid invoice for the property management fee to Party B in accordance with the amount of the property management fee specified herein. The amount of property management fee is RMB2,619.24 per month and shall be borne by Party B.

3.4 As a conclusion, Party B shall pay the gross rent of RMB48,775.65 per month. The time limit for the payment of any sum mentioned above shall be commenced from the date when Party B receives an invoice of rent, property management fee or any other fee issued by Party A. It is agreed that Party B may take following means to make payment: Party A issue an invoice in advance, and Party B make payment within five business days upon receipt of the invoice. If Party B makes payment according to the terms of payment mentioned above, it shall not be deemed as delay in payment.

3.3 Party B shall pay three months’ rent in advance, and two months’ rent are paid additionally as security deposit.

3.4 Party B shall pay the rent of the next month on or before the 10th day of each month. The initial rent shall be paid on or before August 15, 2009. If Party B is unable to pay the rent on time due to business trip or any other reason, it shall promptly give a notice to Party A. The payment of such rent may be deferred for five business days upon receipt of the notice by Party A; otherwise, Party B shall pay an overdue fine to Party A. For each delayed day, Party B shall pay 5‰ of the monthly rent to Party A as the overdue fine. If Party B fails to pay any due and payable rent for more than fifteen (15) days without justifiable reason, Party A may terminate this Contract.

3.5 Party B shall pay all due and payable amounts hereunder to the following bank account designated by Party A. All amounts shall be calculated and paid in Renminbi.

Bank: Dabeiyao Sub-branch, Beijing Branch, Bank of China

 

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Account Name: Li Yang

A/C No.: 4563-5101-0086-3897-868

ARTICLE 4 PROPERTY MANAGEMENT FEE

4.1 Party A must pay the property management fees to the property management company of Jianwai SOHO on a monthly basis. The property management fee shall be paid according to the relevant rules of the property management company. The property management company may adjust the rate of property management fee from time to time. The rate of the property management fee shall be applied to the Leased Unit, as well as all owners and tenants of Jianwai SOHO.

4.2 Upon execution of this Contract, Party B must comply with the relevant rules established by the developer and the property management company of Jianwai SOHO which are applicable to all owners and tenants.

ARTICLE 5 SECURITY DEPOSIT

5.1 Upon execution of this Contract, Party B shall pay a security deposit (“Security Deposit”) to Party A equal to two months’ rent, i.e. RMB92,946.64 (only including net rent and property management fee), as the security for Party B’s faithful performance of all terms and conditions of this Contract. Upon receipt of the security deposit, Party A shall issue a receipt to Party B.

5.2 Party B shall indemnify Party A against all losses and damages if Party B fails to pay any due or payable rent hereunder or causes any actual loss or damage to Party A (other than natural wear and tear in the Leased Unit or any renovation, furniture or electric appliance therein). During the term of this Contract, Party B may not use the security deposit to set off the due and payable rent or any other fees specified herein, or assign the security deposit to any third party or set any guaranty on the security deposit.

5.3 Subject to Party B’s full performance of all terms, conditions and stipulations of this Contract, as well as return of the Leased Unit and discharge of all due and payable fees (including but not limited to fees of water, electricity, gas and telephone, liquidated damages and indemnity), Party A shall refund the security deposit (without interest) within fifteen (15) business.

ARTICLE 6 OVERDUE INTEREST

If Party B, without giving a prior notice to Party A, defaults the payment of any due and payable security deposit, rent or any other amount or any amount advanced by Party A for Party B, Party B shall pay an overdue fine at 0.5‰ of defaulted amount for each day of delay.

ARTICLE 7 OTHER PUBLIC FACILITIES

7.1 Party B may reasonably use the public facilities in Jianwai SOHO in accordance with the relevant rules.

 

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ARTICLE 8 DAMAGE AND MAINTENANCE

8.1 Party A shall indemnify Party B against all losses and damages suffered by Party B due to any fault of Party A, but Party B shall be responsible for the losses and damages due to any other reason, provided that Party A shall give necessary assistance upon request of Party B.

8.2 Party B shall at its own costs maintain and repair the facilities in the Leased Unit, so that such facilities will remain the clean and habitable conditions. Upon expiry or termination of the lease term, Party B shall return the Leased Unit to Party A at the initial conditions.

ARTICLE 9 RIGHTS AND OBLIGATIONS OF PARTY A

9.1 Party A hereby warrants that Party A is the sole owner of the Leased Unit and so has the exclusive right to lease the Leased Unit. Party A shall provide Party B with the photocopy of valid real estate certificate, real estate purchase invoice and the identity certificate or passport of the owner. During the term of this Contract, Party A may not retrieve the Leased Unit without cause. If Party A intends to retrieve the Leased Unit during the term of this Contract, Party B may reject Party A’s request. If Party B can not continue to use the Leased Unit due to any administration or penalty by any government authority regarding the registration or recordation of the Leased Unit, it shall not be deemed as breach of contract by Party B, and this Contract shall be terminated automatically after Party A has fully refunded the security deposit as mentioned in Article 5.1 above.

9.2 Party A has lawfully purchased Room 2202 and Room 2206, 22/F, No. 18 Building from the developer of Jianwai SOHO, and Party A shall present the real estate certificate of the Leased Unit to Party B.

9.3 Party A must strictly comply with the House purchase contract signed with the developer.

9.4 During the lease term, Party A shall ensure Party B may peacefully occupy and use the Leased Unit without any disturbance of Party A or Party A’s agent, provided that Party B has paid the due and payable rent hereunder and comply with all terms and conditions of this Contract.

9.5 Party A may unilaterally terminate this Contract, if Party B:

9.5.1 Violates any law or regulation of the People’s Republic of China, and uses the Leased Unit to carry out any illegal activity;

9.5.2 Changes the purpose of the Leased Unit without authorization;

9.5.3 Fails to pay the rent in accordance with this Contract; or

9.5.4 Without the consent of Party A, subleases or assigns the Leased Unit or any part thereof to any third party, or jointly uses the same with any third party.

 

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9.6 If Party A transfers the ownership of the Leased Unit to any third party, it shall promptly give a notice to Party B and the effectiveness of this Contract shall continue. In that case, Party B shall have the right of first refusal to the Leased Unit under the equivalent conditions.

ARTICLE 10 RIGHTS AND OBLIGATIONS OF PARTY B

10.1 Subject to Party B’s strict compliance with the terms and conditions of this Contract, Party B may reasonably and lawfully occupy and use the Leased Unit during the lease term.

10.2 Party B may reasonably use the public facilities in Jianwai SOHO.

10.3 Party B shall timely pay the rent and the fees of electricity, water, gas, telephone, IP long-distance call and broadband internet connection relating to the Leased Unit, and the service fees relating to other facilities exclusively provided to Party B (unless it is otherwise agreed by both Parties).

10.4 Party B shall keep the interiors of the Leased Unit in clean and intact conditions, prevent any event of damage, pollution or fire, and shall procure its guests and friends to take care of Party A’s articles and the public facilities of Jianwai SOHO. Party B shall indemnify Party A against all losses and damages to Party A, any other owner or tenant of Jianwai SOHO or any pubic facility in Jianwai SOHO due to any reason of Party B.

ARTICLE 11 TERMINATION OF CONTRACT

11.1 Upon occurrence of any of the circumstances listed in Article 9.5, Party A may unilaterally terminate this Contract, without any compensation to Party B.

11.2 This Contract may be terminated by a written agreement entered into by both Parties through friendly negotiation.

11.3 If either Party is unable to perform this Contract due to earthquake, storm, hail, fire or any other event of force majeure which is unforeseeable, inevitable or uncontrollable, the influenced party shall be released from any liability relating thereto.

ARTICLE 12 LIABILITIES FOR BREACH OF CONTRACT

12.1 Unless it is otherwise stipulated in Article 11 above, neither Party may terminate this Contract. If either Party violates this Contract, it shall indemnify the other Party against all damages and losses resulted therefrom. In case of contributory negligence, both Parties shall be subject to the liability respectively as per the specific circumstance.

12.2 If Party B violates any term or condition of this Contract and fails to make remedy within fourteen (14) days upon receipt of a written notice from Party A, this Contract shall be terminated automatically and the lease term shall be expired after fourteen (14) days upon delivery of a written notice from Party A. In that case, Party B shall evacuate from the Leased Unit and return the Leased Unit to Party A.

 

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ARTICLE 13 RETURN OF THE HOUSE

13.1 Upon expiry of the lease term or termination of this Contract (including termination due to breach of contract), Party B must evacuate from the Leased Unit and return the same to Party A within three (3) days. If Party B fails to do so on time, Party A may immediately retrieve the Leased Unit and the keys thereto, and may also change the lock, control the access of other persons and clear away all articles from the Leased Unit. In that case, Party B shall be responsible for all consequences and liabilities resulting therefrom.

13.2 If Party B fails to dispose of any renovation, equipment or any other article in the Leased Unit within three (3) days after Party B has moved out or actually evacuated from the Leased Unit upon expiry or termination of lease term (including termination due to breach of contract), it shall be deemed that Party B has abandoned such articles. Party A may at its own discretion dispose of such articles. In that case, Party B may not make any objection and claim any compensation against Party A.

ARTICLE 14 RENEWAL

During the term of this Contract, subject to the performance of any terms, conditions and stipulations of this Contract by Party B, Party B shall have the right of priority in renewing this Contract for another term under the equivalent conditions (all terms and conditions of this Contract, other than the rate of rent, will not be changed, but the rate of rent in the renewed contract shall be no more than 125% of the initial rate of rent), provided that Party B must give a written request of renewal at least sixty (60) days prior to the expiry of the lease term; otherwise, Party A may lease the Leased Unit to any third party. Party A may invite potential tenants to visit the Leased Unit within sixty (60) days prior to the expiry of the lease term or the renewed lease term.

ARTICLE 15 TERMINATION

Neither Party may terminate this Contract except for any cause listed in Article 11 above. If Party B intends to terminate this Contract, this Contract will become terminated automatically after the security deposit paid by Party B is retained by Party A; if Party A intends to terminate this Contract, this Contract may become terminated only if Party A has paid to Party B the compensation equal to two months’ rent, in addition to the refund of Party B’s security deposit.

ARTICLE 16 NOTICES

Any notice or other communication given by either Party hereunder shall be in Chinese and written forms, and shall be sent to the address of the other Party as mentioned below by personal delivery, or registered airmail (postage prepaid) or recognized courier service or fax. A notice shall be deemed as effectively delivered on the date as determined according to the following rules:

1. If sent by personal delivery, shall be deemed as duly served on the date of delivery;

2. If sent by registered airmail, shall be deemed as duly served on the tenth (10th) day after the posting date (as indicated on the postmark);

 

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3. If sent by courier service, shall be deemed as duly served on the fifth (5th) day after it is sent by the recognized courier service provider; or

4. If sent by fax, shall be deemed as duly served on the first (1st) business day after the date of transmission.

ARTICLE 17 DISPUTE SETTLEMENT

17.1 The formation, validity, construction and performance of and settlement of disputes arising in connection with this Contract shall all be governed by the applicable laws of the People’s Republic of China.

17.2 Any dispute arising from this Contract shall be settled by both parties through friendly negotiation or mediation. If no settlement can be reached through negotiation or mediation, either Party may submit the dispute to Beijing Arbitration Commission for arbitration.

ARTICLE 18 MISCELLANEOUS

18.1 Force Majeure

18.1.1 “Event of Force Majeure” shall mean any event which can not be controlled by either Party and causes the said Party fails to perform its obligations hereunder, including but not limited to ban or action of government or government agency, riot, war, hostile status, civil commotion, strike or any other labor dispute or lockout, halt or interruption of transportation or any other facilities, epidemic, SARS, fire, floods, earthquake, storm or any other natural disaster.

18.1.2 If either Party fails to perform its obligations hereunder due to any event of force majeure, the Party shall give a written notice to the other Party within 14 days upon occurrence of such event, and both Parties shall take best efforts to minimize the losses.

In case of any event of force majeure, the influenced Party shall be released from any liability for its failure in performance or the losses, and such failure or delay in performance shall not be deemed as breach of contract. The Party claiming failure in performance due to any event of force majeure shall take appropriate measures to minimize or eliminate the effect caused by the event of force majeure, and shall make efforts to resume the performance of its obligations affected by such event within the shortest period.

18.2 This Contract is made and executed in Chinese language with two counterparts, one for each party hereto.

18.3 This Contract shall enter into force as of being duly executed by both Parties.

 

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Landlord (Party A):

   Tenant (Party B):

(Seal/Signature)

   (Seal/Signature)

/s/ Li Yang

   /s/ Wei Wang
  

[seal: Quan Toodou Network Science and

Technology Co., Ltd.]

Date: August 10, 2009   

 

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘F-1’ Filing    Date    Other Filings
8/10/11
Filed on:11/9/10F-6
9/10/09
8/15/09
8/11/09
8/10/09
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