UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): FEBRUARY 14, 2007
ZHONGPIN INC.
(Exact name of registrant as specified in charter)
DELAWARE 333-112111 54-2100419
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
21 CHANGSHE ROAD, CHANGGE CITY, HENAN PROVINCE
THE PEOPLE'S REPUBLIC OF CHINA
(Address of principal executive offices) (Zip Code)
011 86 374-6216633
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
|_| Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 5.03: AMENDMENTS TO ARTICLES OF INCORPORATION OR BY-LAWS
AMENDMENTS TO CERTIFICATE OF INCORPORATION
On February 14, 2007, the Board (the "BOARD") of Zhongpin Inc. (the
"COMPANY") approved a proposed amendment (the "AMENDMENT") to the Certificate of
Incorporation of the Company, as amended to the date hereof (the "CERTIFICATE OF
INCORPORATION") and recommended adoption of the Amendment to the stockholders of
the Company in accordance with the Delaware General Corporation Law. The
stockholders approved and adopted the Amendment on February 14, 2007 by written
consent in lieu of a meeting. The Amendment:
o Increases the amount of authorized shares of common stock, par value
$.001, of the Company, from twenty-five million (25,000,000) shares
to one hundred million (100,000,000) shares.
o Increases the amount of authorized shares of preferred stock, par
value $.001, of the Company, from ten million (10,000,000) shares to
twenty-five million (25,000,000) shares.
The Certificate of Incorporation as amended will be effective
immediately upon filing of the Amendment with the Secretary of State of the
State of Delaware, which filing is expected to be made on a date not less than
21 days after we furnish an Information Statement to our stockholders of record
as of February 14, 2007. The form of Amendment to the Certificate of
Incorporation is attached to this Current Report on Form 8-K as EXHIBIT 3.1
hereto.
AMENDMENTS TO BY-LAWS
On February 14, 2007, the Board amended and restated the By-Laws of the
Company (the "AMENDED AND RESTATED BYLAWS") so as to modernize, streamline and
clarify their terms, add certain provisions deemed by the Board to be in the
best interests of the Company and eliminate certain provisions deemed by the
Board to be unnecessary or not in the best interests of the Company. The Amended
and Restated By-Laws:
o Remove an unnecessary provision in the former By-Laws of the Company
(the "FORMER BY-LAWS") specifying the location of the registered
office of the Company. The Amended and Restated By-Laws provide that
such information is fixed in the Certificate of Incorporation. The
inclusion of such information in the Former By-Laws was superfluous
and the elimination of such information in the Amended and Restated
By-Laws has no practical effect on the Company.
o Clarify that the stockholders of the Company are each entitled to
one vote in accordance with the Certificate of Incorporation, or
such greater number of votes as may be provided in the Certificate
of Incorporation,
1
including any certificate of designation with respect to any class
or series of stock, for each share of stock entitled to vote held by
such stockholder. The Former By-Laws did not address the voting
provisions of certificates of designation and did not provide for
the possibility of more than one vote per share of stock if such
voting rights are provided for in the Certificate of Incorporation
or a certificate of designation.
o Clarify an ambiguously-phrased provision in the Former By-Laws with
respect to the proper procedures to be followed at meetings of the
stockholders when a quorum is not present. The Amended and Restated
By-Laws provide that if a quorum is not present at a meeting of the
stockholders, such meeting may be adjourned until a later time. In
addition, the Amended and Restated By-Laws establish procedures for
such adjournments. The Former By-Laws did not provide for
adjournments in the absence of a quorum and included language that
could be considered contradictory and open to conflicting
interpretations.
o Establish that special meetings of the stockholders may be called by
the chairman, vice-chairman, chief executive officer, president or
secretary of the Company and shall be called upon the resolution of
the Board or of the stockholders holding one-third or more of the
outstanding voting common stock of the Company. The Former By-Laws
provided that the only officer able to call a special meeting was
the President. Furthermore, the Former By-Laws provided that a
majority of the stockholders of the Company were entitled to call a
special meeting, without specifying the number of shares owned by
such stockholders in the aggregate.
o Establish that notice of a meeting shall be given to each
stockholder entitled to vote thereat not less than ten (10) nor more
than sixty (60) days before the date of the meeting. The Former
By-Laws provided that such notice be given not less than ten (10)
nor more than fifty (50) days before the date of a meeting. The
provisions of the Amended and Restated By-Laws are consistent with
the Delaware General Corporate Law.
o Establish that in instances in which the stockholders of the Company
consent to a corporate action in writing in lieu of a meeting,
notice thereof shall be given to those stockholders who did not
consent to such action in writing. The Former By-Laws did not
address the provision of notice to such stockholders.
o Establish that as of the date of the Amended and Restated By-Laws,
the Company has three (3) directors. The Former By-Laws indicated
that between two (2) and seven (7) directors would serve on the
Board but did not indicate how many directors would serve initially,
as of the effectiveness of such Former By-Laws. The amendment to
this provision
2
in the Amended and Restated By-Laws does not reflect any change in
the number of directors serving on the Board.
o Establish that if no directors are in office due to vacancies, the
stockholders may fill such vacancies. The Former By-Laws did not
address the possibility of a fully vacant Board of Directors.
o Establish that unless the Certificate of Incorporation provides
otherwise, stockholders may only remove a director who is a member
of a classified board of directors for cause and, furthermore,
establish that if the Certificate of Incorporation provides for
cumulative voting and less than the entire Board of Directors is to
be removed, no director may be removed without cause if the votes
cast against his removal would be sufficient to elect him at an
election of the class of directors which he or she is a part.
Additionally, the Amended and Restated By-Laws provide that if the
holders of any class or series are entitled to elect one or more
directors, the foregoing provisions will apply with respect to
removal without cause of a director or directors elected by that
class or series, with the holders of the outstanding shares of that
class or series being the only holders entitled to vote on such
matter. The Former By-Laws provided that any director could be
removed either for or without cause and did not address directors
elected by other classes or series of stock or procedures for
removal in the event of a classified board of directors. The
Certificate of Incorporation does not currently provide for the
Board to be classified.
o Establish that the number of directors serving on the Board may be
increased by an affirmative vote of the majority of the directors or
by an affirmative vote of holders of a majority of all of the shares
of stock outstanding and entitled to vote at an annual meeting or a
special meeting called for such purpose. The Former By-Laws included
language that required an amendment to the By-Laws in order to
effectuate such an increase in the number of directors serving on
the Board. The Amended and Restated By-Laws require no amendment to
increase the number of directors up to a maximum of seven (7)
directors.
o Establish that the Board may designate one or more committees and
set forth the procedures for doing so and the authority such
committees shall have. The Former By-Laws did not address the
designation and authority of committees of the Board.
o Establish the procedures for regular meetings and special meetings
of the Board and provide that (absent certain restrictions)
directors may participate in meetings of the Board, or any
committee, by means of conference telephone or similar
communications equipment. The Former By-Laws did not address the
procedures for meetings of the Board or
3
provide for participation by telephone or other communications
equipment.
o Establish that a majority of the Board shall constitute a quorum for
the transaction of business of the Company. The Former By-Laws did
not specify any requirements for a quorum with respect to the Board.
o Establish that the Board may elect persons to certain offices of the
Company not previously provided for in the Former By-Laws. Such new
officer positions include: vice-chairman, chief executive officer
and chief operating officer. In addition, the Amended and Restated
By-Laws specify certain powers of the officers of the Company to
sign instruments, stock certificates and agreements on behalf of the
Company and include provisions relating to the election of the
officers and the power of the Board to fill officer vacancies. The
foregoing matters addressed by such provisions were not addressed by
the Former By-Laws.
o Clarify an ambiguously-phrased provision in the Former By-Laws with
respect to the officer position of chairman, which is a position
distinct from the position of Chairman of the Board. The Company
believes that the Former By-Laws included inconsistent language that
confused the two separate positions. The applicable language in the
Amended and Restated By-Laws is now consistent with the chairman's
role (if a chairman should be appointed by the Board) as an officer
of the Company.
o Describe the positions of vice-chairman, chief executive officer,
chief operating officer and president of the Company. The Former
By-Laws did not provide for a vice-chairman, a chief executive
officer or a chief operating officer but did describe the president
as the equivalent of a chief executive officer. The Amended and
Restated By-Laws provide for an office of president and an office of
chief executive officer, without requiring that such offices be
filled by the same person. Accordingly, the language describing the
office of president has been modified.
o Clarify additional duties of the vice-president or vice-presidents
of the Company, if any. The Amended and Restated By-Laws provide
that the Board may designate an order of priority of the
vice-presidents and that the vice-presidents may, under certain
circumstances and only as the Board specifically designates, perform
the duties of the chief executive officer, the president and/or the
chief operating officer. Such matters were not addressed in the
Former By-Laws.
o Remove an unnecessary provision from the Former By-Laws providing
that the designations, preferences and relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations, or restrictions of such
preferences and/or rights
4
be set forth in full or summarized on the face or back of the stock
certificates representing such class or series of stock, or that in
lieu thereof, such stock certificates state that the Company will
furnish equivalent information to each stockholder who so requests
it without charge.
o Provide that any required signature on a stock certificate may be by
facsimile signature. The Former By-Laws provided that facsimiles of
officer signatures were permitted in instances where a certificate
was countersigned by a transfer agent or registrar other than the
Company or an employee thereof.
o Remove an unnecessary provision from the Former By-Laws providing
for management of the Company by the stockholders if the Certificate
of Incorporation so provides. Such a provision is not included in
the Certificate of Incorporation, which provides that the Company
will be managed by the Board.
o Establish and provide procedures regarding the indemnification by
the Company of officers and directors who are made party to or
involved in legal proceedings by reason of their being or having
been officers or directors of the Company. Such rights to
indemnification were not provided for in the Former By-Laws but are
authorized by the Certificate of Incorporation.
o Remove unnecessary language providing that if the By-Laws of the
Company are to be altered or repealed by the Board at a special
meeting, notice of the purpose of the meeting must be provided to
the directors in advance. This notice provision served no
significant purpose and conflicts with new language in the Amended
and Restated By-Laws providing that notice of meetings of the Board
need not specify the business to be conducted thereat.
The Amended and Restated By-Laws became effective upon their approval
and adoption by the Board. The full text of the Amended and Restated By-Laws is
attached to this Current Report on Form 8-K as EXHIBIT 3.2 hereto.
In connection with the foregoing, the Company hereby files the
documents listed below:
EXHIBIT DOCUMENT
------- --------
3.1 Form of Amendment to the Certificate of
Incorporation of the Company
3.2 Amended and Restated Bylaws of the Company
5
SIGNATURES
- ----------
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated: February 15, 2007
ZHONGPIN INC.
By: /s/ XIANFU ZHU
-----------------------------
Name: Xianfu Zhu
Title: Chief Executive Officer
and Chairman
6
EXHIBIT INDEX
EXHIBIT DOCUMENT
------- --------
3.1 Form of Amendment to the Certificate of
Incorporation of the Company
3.2 Amended and Restated Bylaws of the Company
7