Exhibit 99.5
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BY-LAWS OF HENAN ZHONGPIN FOOD CO., LTD.
CHAPTER I GENERAL PROVISIONS
ARTICLE 1
In accordance with the Law of the People's Republic of China on Foreign-Capital
Enterprises and related laws and regulations of China, Falcon Link Investment
Limited converted Henan Zhongpin Food Co., Ltd., into a wholly foreign-owned
enterprise by purchasing all the equity interests in Henan Zhongpin Food Co.,
Ltd. For this purpose, these By-Laws are hereby established.
ARTICLE 2
The name of the Company in Chinese: HENAN ZHONGPIN SHIPIN YOUXIAN GONGSI
(hereinafter referred to as the "Company").
The name of the Company in English: Henan Zhongpin Food Co., Ltd.
Legal address of the Company: south of the middle part of Changxing Road,
Changge City, Henan Province, China
Legal Representative of the Company: ZHU Xianfu
Nationality of the Legal Representative of the Company: People's Republic of
China
ARTICLE 3
The organization form of the Company is a limited liability company [which is
equivalent of "corporation" under U.S. law and should be distinguished from the
"limited liability company" used as a legal term of art in U.S. law]. The
Company is an enterprise legal person under Chinese law. The Company is under
the governance and protection of Chinese laws and all its activities must comply
with the provisions of Chinese laws, regulations and relevant rules.
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CHAPTER II OBJECTIVES AND SCOPE OF BUSINESS
ARTICLE 4
The objectives of the Company: based on the hope to enhance and expand economic
cooperations with foreign countries, to introduce advanced technology and
management methods, to leverage the advantages in human resources of the
domestic area, and to develop the business and operation of the Company, so as
to obtain desirable benefits for the community and satisfactory economic results
[for the investors].
ARTICLE 5
The business scope of the Company: processing of domestic animals and poultry as
well as their products; animal oil, aquatic products, drinking water, fast
frozen fast food, fast frozen vegetables, processing and selling of canned food,
import and export business (excluding distribution of imported goods).
CHAPTER III TOTAL INVESTMENT AMOUNT AND THE REGISTERED CAPITAL
ARTICLE 6
The total amount of the investment in the Company is RMB (Yen)22.85 MILLION [US
$2.76 at the exchange rate of US $1 = RMB (Yen)8.27].
ARTICLE 7
The amount of the registered capital of the Company is RMB (Yen)16.00 MILLION
[US $1.93 million at the exchange rate of US $1 = RMB (Yen)8.27].
ARTICLE 8
Falcon Link Investment Limited shall pay the full consideration to the former
shareholders of the Company according to the Agreement for the Merger and
Acquisition, the Interim Provisions on Mergers and Acquisitions of Domestic
Enterprises by Foreign Investors, the Law of the People's Republic of China on
Foreign-Capital Enterprises and its implementing regulations.
ARTICLE 9
An adjustment of the Company's registered capital or total investment amount
shall be submitted for approval to the examining and approving authority. During
operation, the Company may not reduce its registered capital. Any increase or
transfer of the registered capital of the Company shall, after being unanimously
approved by the Board of Directors, be submitted to the original examining and
approving authority for approval and the Company shall go through the proper
formalities for modifying the registration with the administrative authority for
industry and commerce.
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CHAPTER IV THE BOARD OF DIRECTORS
ARTICLE 10
The Company shall set up the Board of Directors, which shall be the highest
authority of the Company. It shall decide all major issues of the Company. The
date of issuance of the approval certificate of the Company shall be the date of
the establishment of the Board of Directors.
ARTICLE 11
The Board of Directors is composed of five (5) directors and shall have a
chairman. The chairman of the Board is the legal representative of the Company.
In the event that the chairman is unable to exercise his/her responsibilities
for any reason, he or she shall authorize any other director to exercise the
powers and fulfill the obligations in his or her place.
ARTICLE 12
The term of office for the directors is three (3) years, and their term of
office may be renewed if they are re-appointed.
ARTICLE 13
Unanimous approval by all directors shall be required for a decision by the
Board of Directors on any major issue of the Company. The following issues shall
be decided only by a unanimous vote by all the directors of the Board:
1. amendment(s) of the By-Laws of the Company;
2. the merger of the Company with another entity;
3. termination and dissolution of the Company; and
4. increase or transfer of the registered capital of the Company.
ARTICLE 14
The following issues shall be decided by the Board of Directors by resolution
and a simple majority of all the directors present in a board meeting are
required to pass a resolution on such issues:
1. determining or amending the Company's business and operation;
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2. deliberating and approving major long-term or mid-term development plans of
the Company;
3. deliberating and approving the annual operation plans, including personnel
plans, capital expenditure and financial budget plans etc.;
4. deliberating and approving the financial plans, amount of loans to be
borrowed or loan arrangements, including changes in the capital structure
or the implementation of any method to raise new capital;
5. deliberating and approving the annual financial statements;
6. determining the amount [out of net profits] to be deposited in the
Company's reserve funds, development funds, bonus and welfare funds for the
Company's employees;
7. deliberating and approving any plan of dividend distribution by the
Company;
8. determining the suspension of any business operation of the Company or the
liquidation of the Company;
9. holding, investing in, purchasing, liquidating or disposing of any
securities in any other company;
10. deliberating and approving the establishment of subsidiaries, branches or
other offices of the Company;
11. engaging, dismissing, and determining the compensations of certified
auditors and independent accounts [for the Company] who are registered in
China and meet international standards in performing their work;
12. appointing, discharging and determining the compensation of the Company's
senior executives;
13. determining the authorities to be granted to the Company's senior
executives; and
14. any other matter that is required to be decided by resolution of the Board
of Directors in accordance with these By-Laws or the applicable laws, as
well as other major issues the Board of Directors considers its decision
thereon necessary.
ARTICLE 15
The Board of Directors shall convene at least one board meeting each year. The
chairman may convene an interim meeting based on a proposal made by more than
one third of the total number of directors.
ARTICLE 16
A board meeting shall be convened and presided over by the chairman of
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the Board. In the event that the chairman is unable to attend a board meeting,
he or she shall authorize another director to preside over said board meeting.
ARTICLE 17
In the even that a director is unable to attend a board meeting for any reason,
the director may issue a power of attorney to appoint an agent to attend the
board meeting and vote on his or her behalf. In the event that neither the
director nor the director's agent attends the board meeting, said director shall
be deemed to have waived his or her voting right.
ARTICLE 18
A board meeting [including interim meeting] shall have a quorum of more than two
thirds of the directors.
ARTICLE 19
Each board meeting shall have detailed minutes, which shall be signed by all the
directors attending the meeting. The minutes shall be kept by the Company in its
file for future reference.
CHAPTER V MANAGEMENT
ARTICLE 20
The Company shall adopt the system where the general manager is responsible for
the management of the Company while under the leadership of the Board of
Directors, with one (1) general manager and one (1) deputy general manager, who
shall be engaged by the Board of Directors.
ARTICLE 21
The general manager is directly accountable to the Board of Directors and shall
carry out the resolutions of the Board and organize and guide the overall
production of the Company. The deputy general manager shall assist the general
manager in his or her work.
ARTICLE 22
The general manager of the Company shall exercise the following specific powers:
1. in accordance with the By-Laws of the Company, to implement the
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resolutions, rules and regulations of the Board of Directors, and to
organize the production and business operations of the Company;
2. to arrange to draft the Company's development plans, annual operation
plans, operation targets and profit targets, to submit such plans to the
Board of Directors for its deliberation and approval, and to be responsible
for the execution and implementation of such plans after they are approved
by the Board of Directors;
3. to be in charge of the drafting of the rules and regulations on operation
and management, the financial rules, the rules on labor and compensation,
the rules on employees' work attendance, and the rules on awards and
penalties, to submit them to the Board of Directors for its deliberation
and approval, and to implement such rules after they are approved by the
Board of Directors;
4. to propose plans to raise funds for the Company, annual financial budget
plans, annual final account plans, construction plans, etc. to the Board of
Directors for its deliberation and approval; to monitor and control the
revenue and expenditure of the Company;
5. in accordance with the operation targets and annual operation plan that are
passed by the Board of Directors, to arrange to draft annual, quarterly,
and monthly tables of progress for production, development and operation,
and to be in charge of meeting the technological and economic targets set
by the Board of Directors;
6. to set forth and submit to the Board of Directors for its deliberation and
approval proposals for the organizational structure of the Company that is
consistent with the management of the Company, to establish the rules and
regulations for subordinate departments, to engage department managers, to
file related records with the Board of Directors, and, in accordance with
the relevant provisions established by the Board of Directors, to
determine, with respect to such managers, compensations including salaries,
awards and penalties, and promotions;
7. to be responsible for submitting annual work reports and other reports to
the Board of Directors, and for responding to inquiries of directors;
8. to submit statistical statements to the government authorities in
accordance with their requirements;
9. to be in charge of other work related to the management of the production
and business operations of the Company, to have full authority to deal with
ordinary business matters within the scope of authority granted by the
Board of Directors, to sign and issue documents on behalf of the Company,
and to deal with other matters which the Board of Directors authorizes him
or her to deal with; and
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10. the deputy general manager to assist the general manager in his or her
work, and to assume the responsibilities of the general manager in the
absence of the general manager.
ARTICLE 23
In the event that the general manager, the deputy general manager, or other
senior employees should desire to resign, he or she shall submit a written
resignation to the Board of Directors 180 days in advance of the resignation
requested. He or she shall not leave his or her office until said resignation is
approved by the Board of Directors after discussion.
CHAPTER VI TAXATION, FINANCE AND FOREIGN EXCHANGE MANAGEMENT
ARTICLE 24
The Company shall pay taxes in accordance with the provisions of Chinese laws
and regulations.
ARTICLE 25
The employees of the Company shall pay individual income taxes in accordance
with the provisions of Chinese laws and regulations.
ARTICLE 26
The Company shall, in accordance with the provisions of Chinese laws and
regulations and the proper finance authorities, set up its financial and
accounting rules and regulations and shall file them with the local finance and
tax authorities for their record.
ARTICLE 27
The fiscal year of the Company shall be from January 1 to December 31 of each
Gregorian calendar year.
ARTICLE 28
After the income tax has been paid in accordance with Chinese tax laws, the
Company shall withdraw certain amounts from its profits to deposit them into
reserve funds and the employee bonus and welfare funds. The amount withdrawn for
the reserve funds shall not be less than 10% of the post-tax profits, and the
withdrawal may stop when the accumulated amount withdrawn is no less than 50% of
the registered capital of the enterprise. The percentage of the post-tax profits
to be withdrawn for employee bonus and welfare funds shall be determined by the
Board of Directors.
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ARTICLE 29
The Company may not distribute the profits unless and until the losses of
previous fiscal years have been made up. The undistributed profits of previous
fiscal years may be distributed together with the distributable profits of the
current fiscal year.
ARTICLE 30
The Company shall use RMB as the basic monetary unit for bookkeeping. Conversion
of RMB with other currencies shall be calculated on the basis of the current
exchange rate as of the day of occurrence of a particular event, promulgated by
the State Administration of Foreign Exchange of the People's Republic of China.
ARTICLE 31
The Company shall, according to international practice, adopt the accrual
accounting system and debit-credit bookkeeping method.
ARTICLE 32
The Company shall engage Chinese certified public accountants to audit the
annual accounting statements and to issue a report thereupon.
ARTICLE 33
The Company shall provide statistical data and submit statistical statements to
the proper government authorities in accordance with the provisions of the
Statistics Law of the People's Republic of China and the provisions of China
concerning the statistical system for the utilization of foreign capital.
ARTICLE 34
The foreign exchange issues of the Company shall be handled in accordance with
the relevant Chinese laws and regulations concerning foreign exchange
administration.
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CHAPTER VII LABOR MANAGEMENT
ARTICLE 35
Such issues of the Company as recruitment, employment, dismissal, resignation,
compensation, welfare, workplace safety and labor discipline shall be handled in
accordance with relevant labor laws and regulations of China.
ARTICLE 36
The Company shall recruit the employees it needs and shall enter into employment
contracts with its employees.
ARTICLE 37
The compensation of the employees of the Company shall be decided by the general
manager in reference to China's relevant provisions and according to the
particular circumstances of the Company and shall be specifically provided in
the employment contract.
ARTICLE 38
The employees of the Company shall be entitled to the pension insurance, medical
insurance and other social insurance in accordance with Chinese laws and
regulations as well as relevant provisions of the local government.
CHAPTER VIII TRADE UNION
ARTICLE 39
The employees of the Company have the right to set up grassroots trade union
organizations and conduct trade union activities in accordance with the
provisions of the Trade Union Law of the People's Republic of China.
ARTICLE 40
The trade union of the Company represents the interests of the employees. The
trade union of the Company can, on behalf of the employees, enter into
collective labor contracts with the Company, supervise the performance of the
labor contract, and to help mediate disputes between the employees and the
Company.
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CHAPTER IX DURATION OF BUSINESS OPERATION, DISSOLUTION AND
LIQUIDATION
ARTICLE 41
The operating period of the Company is twenty (20) years and shall start from
the date on which the business license of the Company is issued.
ARTICLE 42
The Company may submit a written application to the original examination and
approval authority for extension when the original term of operation expires. In
the event of the dissolution of the Company, the Board of Directors shall
formulate liquidation procedures in accordance with the provisions of Chinese
laws and regulations and organize a liquidation committee to conduct the
liquidation. After the debts of the Company are paid off, the residual assets of
the Company shall be distributed to the shareholders of the Company.
ARTICLE 43
Under any of the following circumstances, the Company shall be terminated:
1. upon the expiration of its term of operation;
2. when the foreign investor decides to dissolve it because of poor management
and serious losses;
3. when the business cannot be carried on because of heavy losses resulting
from FORCE MAJEURE such as natural disasters and wars;
4. when the Company becomes bankrupt;
5. when it is cancelled in accordance with the law as a result of its
violation of Chinese laws and regulations or due to its harming the social
and public interests; or
6. when any of the other causes for dissolution that are provided in the
By-Laws of the Company has occurred.
ARTICLE 44
When a circumstance listed in clauses 2, 3 or 4 of the preceding article occurs,
the Company shall, on its own initiative, submit an application for termination
to the examining and approving authority for approval. The date upon which the
examining and approving authority issues the approval shall be the date of
termination of the Company.
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ARTICLE 45
In the event that the Company is terminated in accordance with the provisions in
clauses 1, 2, 3 or 6 of this Article 43, the Company shall conduct the
liquidation in accordance with the laws.
ARTICLE 46
The post-liquidation net assets and residual properties of the Company that
exceed the Company's registered capital shall be treated as profits and shall be
subject to income taxes in accordance with Chinese tax laws.
ARTICLE 47
In the event that the Company is liquidated for other causes, the liquidation
shall be conducted in accordance with the relevant Chinese laws and regulations.
ARTICLE 48
After the liquidation is over, the Company shall go through the formalities of
registration cancellation with the administrative authority for industry and
commerce, hand in the business license for cancellation and announce the
dissolution to the public.
CHAPTER X APPLICABLE LAW
ARTICLE 49
The formation, validity, interpretation, amendment, and settlement of disputes
of these By-Laws shall be governed by the law of the People's Republic of China.
CHAPTER XI SUPPLEMENTARY PROVISIONS
ARTICLE 50
These By-Laws shall be signed by the legal representative of Falcon Link
Investment Limited and shall become valid upon the approval of the examining and
approving authority of the Chinese government. The same applies to the amendment
to these By-Laws.
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ARTICLE 51
These By-Laws may be amended with respect to issues not dealt with in these
By-Laws after the Board of Directors of the Company approves such amendments.
Amendments of these By-Laws shall come into force only after they are approved
by the original examination and approval authority. The amendments shall become
the effective attachments of these By-Laws.
ARTICLE 52
These By-Laws shall be in Chinese and shall have four (4) original copies.
Falcon Link Investment Limited
Legal Representative: [signature]
Chow Hoi Cheung
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