EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
ZHONGPIN INC.
A Delaware Corporation
(Adopted as of February 14, 2007)
----------------
ARTICLE 1
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the corporation
shall be fixed in the certificate of incorporation of the corporation.
SECTION 2. OTHER OFFICES. The corporation may have other offices, either
within or without the state of Delaware, at such place or places as the board of
directors may from time to time appoint or the business of the corporation may
require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the election of
directors and for such other business as may be stated in the notice of the
meeting, shall be held at such place, either within or without the state of
Delaware, and at such time and date as the board of directors, by resolution,
shall determine and as set forth in the notice of the meeting.
If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect a board of directors and
they may transact such other corporate business as shall be stated in the notice
of the meeting.
SECTION 2. OTHER MEETINGS. Meetings of stockholders for any purpose
other than the election of directors may be held at such time and place, within
or without the state of Delaware, as shall be stated in the notice of the
meeting.
SECTION 3. VOTING. Each stockholder entitled to vote in accordance with
the terms of the corporation's certificate of incorporation shall be entitled to
one vote (or such greater number of votes as shall be provided in the
certificate of incorporation, including any certificate of designation with
respect to any class or series of stock), in person or by proxy, for each share
of stock entitled to vote held by that stockholder, but no proxy shall be voted
after three years from its date unless that proxy provides for a longer period.
Upon the demand of any stockholder, the vote for directors and the vote upon any
question before the meeting, shall be by ballot. All elections for directors
shall be decided by plurality vote; all other questions shall be decided by
majority vote except as otherwise provided by the corporation's certificate of
incorporation or the laws of the state of Delaware.
A complete list of the stockholders entitled to vote at the ensuing
election, arranged in alphabetical order with the address of each, and the
number of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
SECTION 4. QUORUM. Except as otherwise required by law, by the
corporation's certificate of incorporation or by these by-laws, the presence, in
person or by proxy, of stockholders holding a majority of the stock of the
corporation entitled to vote shall constitute a quorum at all meetings of the
stockholders. In case a quorum shall not be present at any meeting, a majority
in interest of the stockholders entitled to vote thereat, present in person or
by proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until the requisite amount of
stock entitled to vote shall be present. At any such adjourned meeting at which
the requisite amount of stock entitled to vote shall be represented, any
business may be transacted that might have been transacted at the meeting as
originally noticed; but only those stockholders entitled to vote at the meeting
as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof.
SECTION 5. SPECIAL MEETINGS. Special meetings of the stockholders for
any purpose or purposes may be called by the Chairman, Vice-Chairman, Chief
Executive Officer, President or Secretary, and shall be called by the Chairman
upon the resolution of the majority of the board of directors or of stockholders
holding one-third or more of the outstanding voting common stock (of all
classes) of the corporation. Any business (regardless of whether specified in
the notice of meeting) may be conducted at a special meeting.
SECTION 6. NOTICE OF MEETINGS. Written notice, stating the place, date
and time of the meeting, and the general nature of the business to be
considered, shall be given to each stockholder entitled to vote thereat at his
address as it appears on the records of the corporation, not less than ten (10)
nor more than sixty (60) days before the date of the meeting. No business other
than that stated in the notice shall be transacted at any meeting without the
unanimous consent of all the stockholders entitled to vote thereat.
SECTION 7. ACTION WITHOUT MEETING. Unless otherwise provided by the
corporation's certificate of incorporation, any action required to be taken at
any annual or special meeting of stockholders, or any action that may be taken
at any annual or special meeting, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing,
2
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take that action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
ARTICLE 3
DIRECTORS
SECTION 1. NUMBER AND TERM. Except as provided in Article 3, Section 5,
the number of directors constituting the board of directors shall be not more
than seven (7) nor less than two (2), as fixed from time to time in these
by-laws or by action of the board of directors. The number of directors as of
the date of adoption of these amended and restated by-laws shall be three (3).
The directors shall be elected at the annual meeting of the stockholders and
each director shall be elected to serve until his or her successor shall be
elected and shall qualify. Directors need not be stockholders.
SECTION 2. RESIGNATIONS. Any director, member of a committee or other
officer may resign at any time. That resignation shall be made in writing, and
shall take effect at the time specified therein, and if no time be specified, at
the time of its receipt by the President or Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. If the office of any director, member of a
committee or other officer becomes vacant, the remaining directors in office,
though less than a quorum by a majority vote, may appoint any qualified person
to fill the vacancy and that person shall hold office for the unexpired term and
until his successor shall be duly elected and qualified, provided, however, that
if there are no directors then in office due to a vacancy, the stockholders may
elect a successor who shall hold office for the unexpired term and until his
successor shall be duly elected and qualified.
SECTION 4. REMOVAL. Except as hereinafter provided, any director or
directors may be removed either for or without cause at any time by the
affirmative vote of the holders of a majority of all the shares of stock
outstanding and entitled to vote, at a special meeting of the stockholders
called for the purpose, and the vacancies thus created may be filled, at the
meeting held for the purpose of removal, by the affirmative vote of a majority
in interest of the stockholders entitled to vote.
Unless the corporation's certificate of incorporation otherwise
provides, stockholders may effect removal of a director who is a member of a
classified board of directors only for cause. If the corporation's certificate
of incorporation provides for cumulative voting and if less than the entire
board is to be removed, no director may be removed without cause if the votes
cast against his removal would be sufficient to elect him if then cumulatively
voted at an election of the
3
entire board of directors, or, if there be classes of directors, at an election
of the class of directors of which he is a part.
If the holders of any class or series are entitled to elect one or more
directors by the provisions of the corporation's certificate of incorporation,
these provisions shall apply, with respect to the removal without cause of a
director or directors so elected, to the vote of the holders of the outstanding
shares of that class or series and not to the vote of the outstanding shares as
a whole.
SECTION 5. INCREASE OF NUMBER. The number of directors may be increased
by the affirmative vote of a majority of the directors, though less than a
quorum or by the affirmative vote of holders of a majority of all the shares of
stock outstanding and entitled to vote, at the annual meeting or at a special
meeting called for that purpose, and by like vote the additional directors may
be chosen at that meeting to hold office until the next annual election and
until their successors are elected and qualify.
SECTION 6. POWERS. The board of directors shall exercise all of the
powers of the corporation except such powers as are by law, or by the
corporation's certificate of incorporation or by these by-laws, conferred upon
or reserved to the stockholders.
SECTION 7. COMMITTEES. The board of directors may, by resolution or
resolutions passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of any member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum may
unanimously appoint another member of the board of directors to act at the
meeting in the place of the absent or disqualified member or members.
Any committee, to the extent provided in the resolution of the board of
directors, or in these by-laws, shall have and may exercise all the powers and
authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers that may require it; but no committee shall have the power
or authority in reference to amending the corporation's certificate of
incorporation, adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation, and, unless the resolution, these by-laws or the
corporation's certificate of incorporation expressly so provide, no committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
SECTION 8. MEETINGS. The directors elected upon any annual meeting of
the stockholders may hold their first meeting for the purpose of organization
and the transaction of business, if a quorum be present, immediately after the
annual meeting of the stockholders; or the time and place of that meeting may be
fixed by consent in writing of all the directors.
4
Regular meetings of the directors may be held without notice at such
places and times as shall be determined from time to time by resolution of the
directors.
Special meetings of the board may be called by the chairman, vice
chairman, chief executive officer or the president on the written request of a
majority of the directors on at least 24 hours notice to each director by mail,
telephone, fax, e-mail or other appropriate means, and shall be held at such
place or places as may be determined by the directors, or as shall be stated in
the call of the meeting. Notice of meetings need not specify the business to be
conducted thereat.
Unless otherwise restricted by the corporation's certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and that participation in a meeting shall
constitute presence in person at the meeting.
SECTION 9. QUORUM. A majority of the directors shall constitute a quorum
for the transaction of business. If at any meeting of the board there shall be
less than a quorum present, a majority of those present may adjourn the meeting
from time to time until a quorum is obtained, and no further notice thereof need
be given other than by announcement at the meeting that is so adjourned.
SECTION 10. COMPENSATION. Directors may receive any compensation for
their services as directors or as members of committees as the board may
determine by resolution, and such compensation may consist of a fixed fee,
expenses of attendance at board or committee meetings, as applicable, and any
other form of compensation. Nothing in these by-laws shall be construed to
preclude any director from serving the corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation therefor.
SECTION 11. ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the board of directors, or of any committee thereof,
may be taken without a meeting, if a written consent thereto is signed by all
members of the board or committee, as the case may be, and that written consent
is filed with the minutes of proceedings of the board or committee.
ARTICLE 4
OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall be a
president, a treasurer and a secretary, all of whom shall be elected by the
board of directors and who shall hold office until their successors are elected
and qualified. In addition, the board of directors may elect a chairman, a
vice-chairman, a chief executive officer, a chief operating officer, one or
5
more vice-presidents and such assistant secretaries and assistant treasurers as
they may deem proper. None of the officers of the corporation need be directors.
Each of the foregoing officers shall have the power and authority to
sign instruments and stock certificates in accordance with section 103(a)(2) of
the Delaware General Corporation Law and to sign agreements on behalf of the
corporation. The officers shall be elected at the first meeting of the board of
directors after each annual meeting of the stockholders. In addition to the
powers and duties specifically enumerated below, any action or resolution of the
board of directors authorizing an officer of the corporation to execute or
deliver a document or instrument, or otherwise act on behalf of the corporation,
shall empower each and any officer (including but not limited to the chairman,
any vice-president and any assistant secretary and assistant treasurer) to take
such action for, on behalf of and/or in the name of the corporation.
Any two or more offices may be held at the same time by the same person.
Any officer may be removed, with or without cause, by the board of directors.
Any vacancy may be filled by the board of directors.
SECTION 2. OTHER OFFICERS AND AGENTS. The board of directors may appoint
such other officers and agents as it may deem advisable, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the board of directors.
SECTION 3. CHAIRMAN. The chairman, if one be elected, shall preside at
all meetings of the stockholders and at all meetings of the board of directors,
and shall have such other power and authority and perform such other duties as
may be prescribed by these by-laws or as may be assigned from time to time by
the board of directors.
SECTION 4. VICE-CHAIRMAN. The vice-chairman, if one be elected, shall,
in the absence or disability of the chairman, preside at all meetings of the
stockholders and at all meetings of the board of directors, and shall have such
other power and authority and perform such other duties as may be prescribed by
these by-laws or as may be assigned from time to time by the board of directors
or the chairman.
SECTION 5. CHIEF EXECUTIVE OFFICER. The chief executive officer, if one
be elected, shall, in the absence or disability of the chairman and
vice-chairman, preside at all meetings of the stockholders and at all meetings
of the board of directors, and shall have general supervision, direction and
control of the business and affairs of the corporation subject to the
authorization and control of the board of directors, and shall have such other
power and authority and perform such other duties as may be prescribed by these
by-laws or as may be assigned from time to time by the board of directors.
In the absence or disability of the chief executive officer, the
president, if available, and if the president is not available the chief
operating officer, if available, shall have the authority, and shall perform the
duties, of the chief executive officer.
6
SECTION 6. PRESIDENT. The president shall, in the absence or disability
of the chairman, vice-chairman and chief executive officer, preside at all
meetings of the stockholders and at all meetings of the board of directors, and
shall have such other power and authority and perform such other duties as may
be prescribed by these by-laws or as may be assigned from time to time by the
board of directors or the chief executive officer.
In the absence or disability of the chief executive officer, the
president, if available, shall have the authority, and shall perform the duties,
of the chief executive officer.
SECTION 7. CHIEF OPERATING OFFICER. The chief operating officer, if one
be elected, shall have such power and authority and perform such duties as may
be prescribed by these by-laws or as may be assigned from time to time by the
board of directors.
In the absence or disability of the president, the chief operating
officer, if available, shall have the authority, and shall perform the duties,
of the president. In addition, in the absence or disability of the chief
executive officer and the president the chief operating officer, if available,
shall have the authority and perform the duties of the chief executive officer.
SECTION 8. VICE-PRESIDENT. Each vice president shall have such power and
authority and perform such duties as may be prescribed by these by-laws or as
may be assigned from time to time by the board of directors or the chief
executive officer.
The board of directors may designate one or more vice-presidents, in
such order of priority as shall be specified by the board of directors, to have
the authority, and to perform the duties, of the chief executive officer in the
absence or disability of the chief executive officer, the president and the
chief operating officer; provided, however, that no vice-president shall have
such authority or perform such duties unless specifically designated for that
purpose by the board of directors.
SECTION 9. TREASURER. The treasurer shall have the custody of the
corporate funds and securities, shall keep full and accurate account of receipts
and disbursements in books belonging to the corporation and shall deposit all
moneys and other valuables in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
The Treasurer shall disburse the funds of the corporation as may be
ordered by the board of directors, or the chief executive officer, taking proper
vouchers for such disbursements. He shall render to the chief executive officer
and board of directors at the regular meetings of the board of directors, or
whenever they may request it, an account of all his transactions as treasurer
and of the financial condition of the corporation. If required by the board of
directors, he shall give the corporation a bond for the faithful discharge of
his duties in such amount and with such surety as the board of directors shall
prescribe.
SECTION 10. SECRETARY. The secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by law or by these by- laws, and in case of his absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the chief executive officer, the president, the chairman, the
7
vice-chairman or by the board of directors or stockholders, upon whose
requisition the meeting is called as provided in these by-laws.
The secretary shall record all the proceedings of the meetings of the
corporation and of the directors in a book to be kept for that purpose, and
shall perform such other duties as may be assigned to him by the chief executive
officer or the board of directors. He shall have custody of the seal of the
corporation and shall affix the same to all instruments requiring it, when
authorized by the chief executive officer or the board of directors, and attest
the same.
SECTION 11. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant
treasurers, if any shall be elected, shall, in the absence of the treasurer,
have the authority, and perform the duties, of the treasurer, and shall have
such other power and authority and perform such other duties as may be
prescribed by these bylaws or as may be assigned from time to time by the board
of directors or the chief executive officer.
Assistant secretaries, if any shall be elected, shall, in the absence of
the secretary, have the authority, and perform the duties, of the secretary, and
shall have such other power and authority and perform such other duties as may
be prescribed by these bylaws or as may be assigned from time to time by the
board of directors or the chief executive officer.
ARTICLE 5
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK. Certificates of stock, signed by the
chairman or vice chairman of the board of directors, if they be elected,
president or vice-president, and the treasurer or an assistant treasurer, or
secretary or an assistant secretary, shall be issued to each stockholder
certifying the number of shares owned by him in the corporation. Any or all of
the signatures may be facsimiles.
SECTION 2. LOST CERTIFICATES. A new certificate of stock may be issued
in the place of any certificate theretofore issued by the corporation, alleged
to have been lost or destroyed, and the directors may, in their discretion,
require the owner of the lost or destroyed certificate, or his legal
representatives, to indemnify the corporation against any claim that may be made
against it on account of the alleged loss of the certificate, or the issuance of
the new certificate.
SECTION 3. TRANSFER OF SHARES. The shares of stock of the corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon transfer the
old certificates shall be surrendered to the corporation by the delivery thereof
to the person in charge of the stock and transfer books and ledgers, or to such
other person as the directors may designate, by whom they shall be canceled, and
new certificates shall thereupon be issued. A record shall be made of each
transfer and whenever a transfer shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer.
8
SECTION 4. STOCKHOLDERS RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days before the date of the meeting, nor more than sixty (60) days
before any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
SECTION 5. DIVIDENDS. Subject to the provisions of the corporation's
certificate of incorporation, the board of directors may, out of funds legally
available therefor at any regular or special meeting, declare dividends upon the
capital stock of the corporation as and when they deem expedient. Before
declaring any dividend there may be set apart out of any funds of the
corporation available for dividends, such sum or sums as the directors from time
to time in their discretion deem proper for working capital or as a reserve fund
to meet contingencies or for equalizing dividends or for such other purposes as
the directors shall deem conducive to the interests of the corporation.
SECTION 6. SEAL. The corporate seal shall be circular in form and shall
contain the name of the corporation, the year of its creation and the words
"CORPORATE SEAL DELAWARE." The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
SECTION 7. FISCAL YEAR. The fiscal year of the corporation shall be
determined by resolution of the board of directors.
SECTION 8. CHECKS. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers, agent or agents of the
corporation, and in such manner, as shall be determined from time to time by
resolution of the board of directors.
SECTION 9. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required
by these by-laws to be given, personal notice is not meant unless expressly so
stated, and any notice so required shall be deemed to be sufficient if given by
depositing the same in the United States mail, postage prepaid, addressed to the
person entitled thereto at his address as it appears on the records of the
corporation, and that notice shall be deemed to have been given on the day of
the mailing. Stockholders not entitled to vote shall not be entitled to receive
notice of any meetings except as otherwise provided by statute.
Whenever any notice whatsoever is required to be given under the
provisions of any law, or under the provisions of the corporation's certificate
of incorporation or these by-laws, a waiver
9
thereof in writing, signed by the person or persons entitled to that notice,
whether before or after the time stated therein, shall be deemed equivalent to
that notice.
ARTICLE 6
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. Any officer or director who was or
is made a party or is threatened to be made a party to or is involved in any
pending, threatened, or completed civil, criminal, administrative, or
arbitration action, suit, or proceeding and any appeal therein and any inquiry
or investigation in connection therewith or which could lead thereto (a
"proceeding"), by reason of his or her being or having been a director or
officer of the corporation, or of any subsidiary of the corporation or of any
predecessor of the corporation, including, without limitation, any predecessor
absorbed by the corporation in a consolidation or merger, or by reason of him or
her being or having been a director, officer, trustee, employee or agent of any
other corporation (domestic or foreign) or of any partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise (whether
or not for profit), serving as such at the request of the corporation or of any
such predecessor of the corporation, or the legal representative of any such
director or officer, shall be indemnified and held harmless by the corporation
to the fullest extent permitted by the Delaware General Corporation Law, as the
same exists or may hereafter be amended, from and against any and all reasonable
costs, disbursements and attorneys' fees, and any and all amounts paid or
incurred in satisfaction of settlements, judgments, fines, excise taxes, and
penalties, incurred or suffered in connection with any such proceeding, and such
indemnification shall continue as to a person who has ceased to be director or
officer and shall inure to the benefit of his or her heirs, executors,
administrators, and assigns. The termination of any proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not of itself be determinative that such director or officer
did not meet the applicable standards of conduct required under the Delaware
General Corporation Law to be so indemnified. To the fullest extent permitted by
applicable law and except as is otherwise determined by the board of directors,
expenses incurred by a person seeking indemnification under this by-law in
defending any proceeding covered by this by-law shall be advanced by the
corporation prior to the final disposition of the proceeding upon receipt by the
corporation of an undertaking by or on behalf of such person to repay such
amount if it shall be ultimately and finally determined that such person is not
entitled under Delaware Law to be indemnified by the corporation therefor.
SECTION 2. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and
advancement of expenses provided by or granted pursuant to this article shall
not exclude or be exclusive of any other rights to which any person may be
entitled under a by-law, agreement, vote of shareholders or otherwise.
SECTION 3. SAVINGS CLAUSE. If this article or any portion hereof shall
be invalid on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director or officer as to costs,
charges, and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding,
10
whether civil, criminal, administrative, or investigative, including any action
by or in the right of the corporation, to the fullest extent permitted by any
applicable portion of this article that shall not have been invalidated and to
the fullest extent permitted by applicable law.
ARTICLE 7
AMENDMENTS
These by-laws may be altered or repealed and by-laws may be made at any
annual meeting of the stockholders or at any special meeting thereof if notice
of the proposed alteration or repeal of the by-law or by-laws to be made be
contained in the notice of that special meeting, by the affirmative vote of a
majority of the stock issued and outstanding and entitled to vote thereat, or by
the affirmative vote of a majority of the board of directors, at any regular
meeting of the board of directors, or at any special meeting of the board of
directors.
11