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Tudou Holdings Ltd – ‘F-1’ on 11/9/10 – EX-10.8

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-10.8   —   Director Agreement, Dated as of October 28, 2010


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



  Director Agreement, dated as of October 28, 2010  

 

Exhibit 10.8

TUDOU HOLDINGS LIMITED

DIRECTOR AGREEMENT

This Director Agreement (the “Agreement”) is made and entered into as of October 28, 2010, by and between Tudou Holdings Limited, a Cayman Islands company (the “Company”), and Chun Liu, an individual (the “Director”).

 

I. SERVICES

1.1 Board of Directors. Director has been appointed as an Independent Director of the Company’s Board of Directors (the “Board”), effective upon the effectiveness of the Company’s Registration Statement on Form F-1 in connection with its initial public offering (the “Effective Date”), until the earlier of the date on which Director ceases to be a member of the Board for any reason or the date of termination of this Agreement in accordance with this Section 5.2 hereof (such earlier date being the “Expiration Date”). The Board shall consist of the Director and such other members as nominated and elected pursuant to the then current Memorandum and Articles of Association of the Company (the “Articles”).

1.2 Director Services. Director’s services to the Company hereunder shall include service on the Board to manage the business of the Company in accordance with applicable law and the then current Articles, and such other services mutually agreed to by Director and the Company (the “Director Services”).

 

II. COMPENSATION

2.1 Expense Reimbursement. The Company shall reimburse Director for all reasonable travel and other out-of-pocket expenses incurred in connection with the Director Services rendered by Director.

2.2 Fees to Director. The Company agrees to pay Director the following fees for the Director Services: an annual retainer of US$20,000. In the event Director ceases to serve on the Board for any reason, Director shall be entitled to the pro rata portion of the annual fee for the number of months he has served on the Board in a given year.

2.3 Share Option. Subject to approval by the Board, the Company will grant to Director, pursuant to the Company’s Share Incentive Plan (the “Plan”) an option (the “Option”) to purchase 30,000 shares of Ordinary Shares of a par value of US$0.0001 each of the Company at an exercise price per share equal to the price for the Company’s ordinary share in the Company’s initial public offering, subject to the approval by the Board. The Option shall vest over a four-year period after the Effective Date pursuant to the terms of the option agreement between the Company and Director (the “Option Agreement”), with such vesting subject to Director’s continuous service as a member of the Board. The Option shall in all respects be subject to the terms and conditions of the Plan and the Option Agreement.


 

2.4 Director and Officer Liability Insurance. The Company’s proposed director and officer liability insurance policy shall provide Director with coverage for damages and losses incurred in connection with the Director Services.

 

III. DUTIES OF DIRECTOR

3.1 Fiduciary Duties. In fulfilling his managerial responsibilities, Director shall be charged with a fiduciary duty to the Company and all of its shareholders. Director shall be attentive and inform himself of all material facts regarding a decision before taking action. In addition, Director’s actions shall be motivated solely by the best interests of the Company and its shareholders.

3.2 Confidentiality. During the term of this Agreement, and for a period of one (1) year after the Expiration Date, Director shall maintain in strict confidence all information he has obtained or shall obtain from the Company which the Company has designated as “confidential” or which is, by its nature confidential, relating to the Company’s business, operations, properties, assets, services, condition (financial or otherwise), liabilities, employee relations, customers (including customer usage statistics), suppliers, prospects, technology, or trade secrets, except to the extent such information (i) is in the public domain through no act or omission of the Company, (ii) is required to be disclosed by law or a valid order by a court or other governmental body, or (iii) is independently learned by Director outside of this relationship (the “Confidential Information”).

3.3 Nondisclosure and Nonuse Obligations. Director will use the Confidential Information solely to perform the Director Services for the benefit of the Company. Director will treat all Confidential Information of the Company with the same degree of care as Director treats his own Confidential Information, and Director will use his best efforts to protect the Confidential Information. Director will not use the Confidential Information for his own benefit or the benefit of any other person or entity, except as may be specifically permitted in this Agreement. Director will immediately give notice to the Company of any unauthorized use or disclosure by or through him, or of which he becomes aware, of the Confidential Information. Director agrees to assist the Company in remedying any such unauthorized use or disclosure of the Confidential Information.

3.4 Return of the Company Property. All materials furnished to Director by the Company, whether delivered to Director by the Company or made by Director in the performance of Director Services under this Agreement (the “Company Property”) are the sole and exclusive property of the Company. Director agrees to promptly deliver the original and any copies of the Company Property to the Company at any time upon the Company’s request. Upon termination of this Agreement by either party for any reason, Director agrees to promptly deliver to the Company or destroy, at the Company’s option, the original and any copies of the Company Property. Director agrees to certify in writing that Director has so returned or destroyed all such the Company Property.

 

2


 

IV. COVENANTS OF DIRECTOR

4.1 No Conflict of Interest. In one year from the Effective Date, or if the term of this Agreement is longer, then during the term of this Agreement, Director shall not be employed by, own, manage, control or participate in the ownership, management, operation or control of any business entity that is competitive with the Company or otherwise undertake any obligation inconsistent with the terms hereof, provided that Director may own equity of certain business entity engaging in similar business as that of the Company subject to the prior approval by the Board, and provided further that Director may continue Director’s current affiliation or other current relationships with the entity or entities described on Exhibit A (all of which entities are referred to collectively as “Current Affiliations”). For a period of one (1) year after the Expiration Date, Director shall not be employed by, operate or manage any business entity that is competitive with the Company. This Agreement is subject to the current terms and agreements governing Director’s relationship with Current Affiliations, and nothing in this Agreement is intended to be or will be construed to inhibit or limit any of Director’s obligations to Current Affiliations. Director represents that nothing in this Agreement conflicts with Director’s obligations to Current Affiliations. A business entity shall be deemed to be “competitive with the Company for purpose of this Article IV only if and to the extent it engages in the business substantially similar to the Company’s online video and mobile video businesses.

4.2 Noninterference with Business. During the term of this Agreement, and for a period of one (1) year after the Expiration Date, Director agrees not to interfere with the business of the Company in any manner. By way of example and not of limitation, Director agrees not to solicit or induce any employee, independent contractor, customer or supplier of the Company to terminate or breach his or her employment, contractual or other relationship with the Company.

 

V. TERM AND TERMINATION

5.1 Term. This Agreement is effective on the Effective Date and will continue for one year or such longer period as the parties may agree upon.

5.2 Termination. Either party may terminate this Agreement at any time upon thirty (30) days prior written notice to the other party, or such shorter period as the parties may agree upon.

5.3 Survival. The rights and obligations contained in Articles III and IV will survive any termination or expiration of this Agreement.

 

VI. MISCELLANEOUS

6.1 Assignment. Except as expressly permitted by this Agreement, neither party shall assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.

6.2 No Waiver. The failure of any party to insist upon the strict observance and performance of the terms of this Agreement shall not be deemed a waiver of other obligations hereunder, nor shall it be considered a future or continuing waiver of the same terms.

 

3


 

6.3 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or such other address as either party may specify in writing.

To the Company:

Building 6, Number 1238 Xietu Road, Xuhui District, Shanghai, People’s Republic of China

Attention: [Gary Wang]

To Director:

Phoenix Mansion, Haidian District No. 165 Beijing, China

6.4 Governing Law. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of New York, without regard to conflicts of law principles thereof.

6.5 Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.

6.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all Director Services undertaken by Director for the Company.

6.7 Amendments. This Agreement may only be amended, modified or changed by an agreement signed by the Company and Director. The terms contained herein may not be altered, supplemented or interpreted by any course of dealing or practices.

6.8 Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

4


 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

Company:   Tudou Holdings Limited
  By:  

/s/ Gary Wei Wang

  Name:   Gary Wei Wang
  Title:   Director & CEO
Independent Director:    
 

/s/ Liu Chun

  Name:   Liu Chun

 

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EXHIBIT A

Director’s Current Affiliations


Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘F-1’ Filing    Date    Other Filings
Filed on:11/9/10F-6
10/28/10
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Filing Submission 0001193125-10-253543   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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