As
Filed with the Securities and Exchange Commission on December 8,
2008
Registration No.:
333-______
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
_____________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
_____________
ZHONGPIN
INC.
(Exact
Name of Registrant as Specified in its Charter)
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Delaware
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54-2100419
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S.
Employer
Identification
No.)
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21
Changshe Road
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Changge
City, Henan Province
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People’s
Republic of China
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Amended
and Restated 2006 Equity Incentive Plan
(Full
Title of the Plan)
Xianfu
Zhu
Chief
Executive Officer
21
Changshe Road
Changge
City, Henan Province
People’s
Republic of China
(Name
and Address of Agent for Service)
011
86 374-6216633
(Telephone
Number, Including Area Code, of Agent for Service)
Copy
To:
Eric
M. Hellige, Esq.
Pryor
Cashman LLP
410
Park Avenue
New
York, New York 10022
(212)
421-4100
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See definitions of “large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act. (Check one):
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Large
accelerated filer
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¨
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Accelerated
filer
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x
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Non-accelerated
filer
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¨
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Smaller
reporting company
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¨
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CALCULATION
OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Maximum
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Offering
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Aggregate
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Title
of Each Class of
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Amount
to
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Price
Per
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Offering
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Amount
of
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Securities to be Registered
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be Registered
*
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Share
**
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Price
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Registration Fee
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Common
Stock, $.001 par value per share
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2,500,000
Shares
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(1)
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$
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8.51
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$
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21,275,000
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$
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837
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**
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________________
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(1)
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Includes
710,000 shares of common stock issuable upon the exercise of stock options
granted pursuant to our Amended and Restated 2006 Equity Incentive
Plan. Pursuant to Rule 416 of the Securities Act of 1933, the
number of shares of common stock registered hereunder will be adjusted in
the event of stock splits, stock dividends or similar
transactions.
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*
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All
the securities registered hereby are issuable under our Amended and
Restated 2006 Equity Incentive
Plan.
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**
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Estimated
solely for the purpose of calculating the registration fee and computed in
accordance with Rule 457(c) under the Securities Act of 1933, upon the
basis of the closing price per share of the Registrant’s common stock as
reported on the Nasdaq Global Select Market on December 1,
2008.
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EXPLANATORY
NOTE
Zhongpin Inc. (“we,” “us” or “our”) has
prepared this registration statement in accordance with the requirements of Form
S-8 under the Securities Act of 1933, as amended (the “Securities Act”), to
register shares of our common stock, $.001 par value per share, issuable under
our Amended and Restated 2006 Equity Incentive Plan.
This Form S-8 includes a reoffer
prospectus prepared in accordance with Part I of Form S-3 under the Securities
Act. The reoffer prospectus may be used for reoffers and resales of
restricted securities and control securities (as such terms are defined in
General Instruction C to Form S-8) acquired pursuant to our Amended and Restated
2006 Equity Incentive Plan.
PART
I
INFORMATION
REQUIRED IN THE 10(A) PROSPECTUS
The documents containing the
information required by Part I of Form S-8 will be sent or given to the
participants in our Amended and Restated 2006 Equity Incentive Plan (the
“Incentive Plan”) as specified by Rule 428(b)(1) of the Securities Act of 1933,
as amended (the “Securities Act”). These documents and the documents
incorporated by reference herein pursuant to Item 3 of Part II of this
registration statement (the “Registration Statement”), taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
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The
reoffer prospectus referred to in the explanatory note follows this
page.
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REOFFER
PROSPECTUS
ZHONGPIN
INC.
610,000
SHARES OF COMMON STOCK
This prospectus relates to the reoffer
and resale by the selling stockholders of 610,000 shares of our common stock
issuable pursuant to options granted by us under our Amended and Restated 2006
Equity Incentive Plan (the “Incentive Plan”).
The
shares of common stock covered by this prospectus are “restricted securities”
and, in some cases, “control securities” under the Securities Act of 1933, as
amended (the “Securities Act”). This prospectus has been prepared to allow for
future resales of the shares covered by this prospectus by the selling
stockholders on a continuous or delayed basis, to the public. The number of
shares that each selling stockholder may sell is set forth under Rule 144(e)
under the Securities Act. Each stockholder that resells shares of our common
stock pursuant to this prospectus may be deemed an “underwriter” within the
meaning of the Securities Act. Any commissions received by a broker or dealer in
connection with resales of shares of our common stock covered by this prospectus
may be deemed to be underwriting commissions or discounts under the Securities
Act.
The
selling stockholders, or their pledgees, donees, transferees or other
successors-in-interest, may resell their shares of common stock covered by this
prospectus from time to time in one or more public or private transactions at
prevailing market prices, at prices related to prevailing market prices or at
privately negotiated prices.
We
are paying the expenses incurred in registering the shares covered by this
prospectus and the preparation of this prospectus, but all selling and other
expenses, including but not limited to any discounts, commissions and applicable
transfer taxes, incurred by each of the selling stockholders will be borne by
such stockholder.
Our
principal executive offices are located at 21 Changshe Road, Changge City, Henan
Province, People’s Republic of China. Our telephone number is 011 86
374-6216633.
.
Our common stock is traded on the
Nasdaq Global Select Market under the symbol “HOGS.”
SEE “RISK FACTORS” BEGINNING ON PAGE 2
FOR RISKS OF AN INVESTMENT IN THE SECURITEIS OFFERED BY THIS PROSPECTUS, WHICH
YOU SHOULD CONSIDER BEFORE YOU PURCHASE ANY SHARES.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of
the securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date
of this reoffer prospectus is December 8, 2008.
We have
not registered the sale of the shares under the securities laws of any state.
Brokers or dealers effecting transactions in the shares of common stock offered
hereby should confirm that the shares have been registered under the securities
laws of the state or states in which sales of the shares occur as of the time of
such sales, or that there is an available exemption from the registration
requirements of the securities laws of such states.
This
prospectus is not an offer to sell any securities other than the shares of
common stock offered hereby. This prospectus is not an offer to sell securities
in any circumstances in which such an offer is unlawful.
We have
not authorized anyone, including any salesperson or broker, to give oral or
written information about this offering, Zhongpin Inc., or the shares of common
stock offered hereby that is different from the information included in this
prospectus. You should not assume that the information in this prospectus, or
any supplement to this prospectus, is accurate at any date other than the date
indicated on the cover page of this prospectus or any supplement to
it.
TABLE OF
CONTENTS
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Prospectus
Summary
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1
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Special
Note Regarding Forward-Looking Statements
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3
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Risk
Factors
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4
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Use
of Proceeds
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4
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Selling
Stockholders
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4
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Plan
of Distribution
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5
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Legal
Matters
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8
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Experts
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8
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Where
You Can Find More Information
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8
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Incorporation
of Certain Information by Reference
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9
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Information
with Respect to the Registrant
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9
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Material
Changes
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10
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Commission
Position on Indemnification for Securities Act Liabilities
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10
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You should rely on the information
contained in or incorporated by reference into this prospectus or any prospectus
supplement. We have not authorized any person to give any information
or to make any representations other than those contained or incorporated by
reference in this prospectus, and, if given or made, you must not rely upon such
information or representations as having been authorized. This
prospectus does not constitute an offer to sell or the solicitation of an offer
to buy securities other than our shares of common stock described in this
prospectus or an offer to sell or the solicitation to buy such securities in any
circumstances in which such offer or solicitation is unlawful. You
should not assume that the information we have included in this prospectus is
accurate as of any date other than the date of this prospectus or that any
information we have incorporated by reference is accurate as of any date other
than the date of the document incorporated by reference regardless of the time
of delivery of this prospectus or of any securities registered
hereunder.
PROSPECTUS
SUMMARY
The
following is only a summary. We urge you to read the entire prospectus,
including the more detailed consolidated financial statements, notes to the
consolidated financial statements and other information included herein or
incorporated herein by reference from our other filings with the Securities and
Exchange Commission (the “Commission”). Investing in our securities involves
risks. Therefore, please carefully consider the risk factors described in our
Commission filings, including those disclosed in our Annual Report on Form 10-K
for the year ended December 31, 2007.
Our
Business
We are
principally engaged in the meat and food processing business in the People’s
Republic of China (the “PRC”). Our product line includes over 290
unique meat products, including chilled pork, frozen pork, pig by-products and
prepared meats, that are sold on a wholesale basis and on a retail basis through
an exclusive network of showcase stores, network stores and supermarket counters
under our “Zhongpin” brand. Our 11 processing plants, which are
located in Henan, Heilongjiang and Sichuan Provinces and in the Economic
Development Zone in Tianjin City in the PRC, have a total of 19 production lines
with an aggregate processing capacity for chilled and frozen pork of
approximately 1,088 metric tons per day, based on an eight-hour working day, or
approximately 391,560 metric tons on an annual basis. Our production
capacity for prepared meat is approximately 150 metric tons per day, based on an
eight-hour working day, or approximately 54,000 metric tons on an annual
basis. We also produce and sell vegetables and fruits, and have
contracts with more than 100 farms in Henan Province and nearby areas to produce
high-quality vegetable varieties and fruits suitable for export
purposes. Our products are sold under the “Zhongpin” brand
name.
According
to an October 2006 report of the United States Department of Agriculture, the
PRC is the largest food consuming nation in the world and is the world’s largest
pork producer and consumer. The meat and meat processing industry in
the PRC is regarded by the central government as a “key” industry and certain
participants in the industry, including our company, receive special tax
incentives and technology subsidies. According to a market analysis
of the fresh and processed meat industry in the PRC published in June 2005 by
Access Asia Limited, an independent research organization (“Access
Asia”):
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In
2004, domestic demand for meat and related products in the PRC totaled
72,360,000 metric tons and such demand is expected to reach 100,000,000
metric tons by 2010;
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The
total domestic production value of meat and related products in the PRC in
2004 was US$84 billion and the estimated production value in 2010 is
expected to reach US$120 billion;
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Domestic
per capita meat consumption in the PRC was estimated to be approximately
49 kg in 2004 and is expected to increase to 70-80 kg by 2010;
and
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Per
capita consumption of meat in urban areas in the PRC is twice the amount
of the national average.
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At
September 30, 2008, our customers included 29 international or domestic fast
food companies in the PRC, 53 processing factories and 1,628 school cafeterias,
factory canteens, army posts and national departments. At such date,
we also sold directly to 2,995 retail outlets, including supermarkets, within
the PRC.
To
differentiate our company from other market incumbents, we also have
successfully implemented a unique retail strategy that includes the
establishment of a network of showcase stores, branded network stores and
supermarket counters that are exclusive retailers of our product
lines. At September 30, 2008, we had a total of 123 showcase stores,
944 network stores and 1,928 supermarket counter locations.
We
believe we are a market leader in the meat and meat products industry in the PRC
and that the principal strengths of our company are as follows:
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We
have a vertically-integrated fresh meat, meat products, fresh produce and
fruit supply chain from farming, slaughtering, cutting, processing and
wholesaling to retailing;
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We
have a wide distribution network through major areas of the
PRC;
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The
“Zhongpin” brand name is well recognized in major areas of the PRC as an
established and leading brand;
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We
have advanced production equipment for the packaging of meat and
food;
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Our
customers include some of the largest supermarket chains, such as Lianhua
Supermarket Group, Carrefour China and Metro (China)
Group;
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We
have implemented a comprehensive logistics management program and have an
efficient delivery system that, at September 30, 2008, utilized 312
temperature-controlled container trucks and public railway
services;
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Based
upon our historical growth rates, we believe our experienced management
team, led by our founder and Chairman, Mr. Zhu Xianfu, has the ability to
grow and expand our business;
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We
have an emphasis on quality assurance
systems;
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We
have a comprehensive brand building strategy and brand equity
management;
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We
have an innovative product development program, with approximately 158 new
products under development at September 30, 2008;
and
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We
experienced compound annual revenue growth of 77% (cumulative growth of
985%) and compound annual profit growth of 86% (cumulative growth of
1,206%) during the five-year period ended December 31,
2007.
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This
Offering
This
prospectus relates to the resale by the selling stockholders identified in this
prospectus of up to 610,000 shares of common stock issuable upon the exercise of
options to purchase common stock. The selling stockholders may sell their shares
of common stock from time to time at prevailing market prices. Except
for the aggregate purchase price of the options exercised by the selling
stockholders in connection with the sale of shares offered pursuant to this
reoffer prospectus, we will not receive any proceeds from the sale of the shares
of our common stock by the selling stockholders.
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Common Stock Offered
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610,000
shares
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Common
Stock Outstanding at December 2, 2008
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27,471,585
shares
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Preferred
Stock Outstanding at December 2, 2008
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2,129,200
shares, which shares are convertible into 2,129,200 shares of common
stock
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Use
of Proceeds
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Except
for the aggregate purchase price of the options exercised by the selling
stockholders in connection with the sale of shares offered pursuant to
this prospectus, we will not receive any proceeds from the sale of shares
of our common stock by the selling stockholders.
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Nasdaq
Ticker Symbol
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HOGS
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Our
Corporate Information
We are
incorporated in the state of Delaware under the name “Zhongpin
Inc.” Our principal executive offices are located at 21 Changshe
Road, Changge City, Henan Province, People’s Republic of China, and our
telephone number is (011) 86-374-6216633. We maintain an
Internet website at
www.zpfood.com
. We
have not incorporated by reference into this prospectus the information in, or
that can be accessed through, our website, and you should not consider it to be
a part of this prospectus.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of
the statements under in this prospectus constitute forward-looking statements.
These statements involve risks known to us, significant uncertainties, and other
factors which may cause our actual results, levels of activity, performance, or
achievements to be materially different from any future results, levels of
activity, performance, or achievements expressed or implied by those
forward-looking statements.
You can
identify forward-looking statements by the use of the words "may," "will,"
"should," "could," "expects," "plans," "anticipates," "believes," "estimates,"
"predicts," "intends," "potential," "proposed," or "continue" or the negative of
those terms. These statements are only predictions. In evaluating these
statements, you should specifically consider various factors, including the
risks outlined above. These factors may cause our actual results to differ
materially from any forward-looking statement.
Although
we believe that the exceptions reflected in the forward-looking statements are
reasonable, we cannot guarantee future results, levels of activity, performance
or achievements.
You should carefully consider the
specific risks set forth under the caption “Risk Factors” in any of our filings
with the Securities and Exchange Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities and Exchange Act of 1934, as amended (the
“Exchange Act”), incorporated by reference in this prospectus and including,
without limitation, the “Risk Factors” contained in Item 1A of our Annual Report
on Form 10-K for the year ended December 31, 2007, before making an investment
decision. For more information, see “Where You Can Find More
Information.”
USE
OF PROCEEDS
Except for the aggregate purchase price
of the options exercised by the selling stockholders in connection with the sale
of shares offered pursuant to this reoffer prospectus, we will not receive any
proceeds from the sale of the shares of our common stock by the selling
stockholders. All such proceeds will be received by the selling
stockholders.
We could receive proceeds of up to
$7,096,800 upon the exercise, if any, of the options granted by us to the
selling stockholders identified in this prospectus, which options are
exercisable for an aggregate 610,000 shares of common stock. We intend to use
any such proceeds for working capital and general corporate
purposes. The amount of proceeds received by us described
above assumes the selling stockholders will not elect to exercise their options
through a "cashless exercise."
We cannot
assure you that the selling stockholders will exercise the options described
above or that they will elect to pay the exercise price in cash in lieu of a
cashless exercise.
SELLING
STOCKHOLDERS
This prospectus relates to shares of
common stock that are being registered for reoffer and resale by the selling
stockholders. The shares of common stock are “restricted securities”
and/or “control securities” under the Securities Act. The selling
stockholders may resell any or all of the shares at any time while this
prospectus is current.
Since we do not currently meet the
registration requirements for the use of Form S-3, the amount of common stock
which may be resold by means of this reoffer prospectus by each of the selling
stockholders, and any other person with whom he is acting in concert for the
purpose of selling our securities, must not exceed, in any three month period,
the amount specified in Rule 144(e) promulgated under the Securities
Act.
The following table sets forth certain
information regarding the ownership of our common stock by the selling
stockholders as of the date of this reoffer prospectus, and the number of shares
of our common stock currently being offered by each selling stockholder pursuant
to this reoffer prospectus. The information set forth in the
following table regarding beneficial ownership after resale of securities
assumes that the selling shareholders will sell all of the shares of common
stock owned by that selling shareholder covered by this prospectus.
The
inclusion in the table of the individuals named therein shall not be deemed to
be an admission that any such individuals are “affiliates.” The
address of each selling stockholder is c/o Zhongpin Inc., 21 Changge Road,
Changge City, Henan Province, PRC.
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Name and Position
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Number of
Shares
Beneficially
Owned Prior to
Offering
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Number of
Shares to be
Offered by
Selling
Stockholder
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Number of Shares
Beneficially
Owned After
Completion of
Offering
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Percentage of Common
Stock Owned After
Completion of Offering
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Xianfu
Zhu, President,
Chairman,
Chief
Executive
Officer
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6,487,506
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120,000
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6,367,506
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23.2
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%
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Baoke
Ben, Director,
Executive
Vice President
and
Secretary
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938,125
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100,000
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838,125
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3.0
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%
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Raymond
Leal
Director
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30,000
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30,000
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—
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—
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Chaoyang
Liu
Vice
President-Operations
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719,874
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100,000
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619,874
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2.2
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%
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Qinghe
Wang
Executive
Director,
Henan
Zhonpin Food
Share
Co., Ltd.
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692,000
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80,000
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612,000
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2.2
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%
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Juanjuan
Wang
Executive
Director,
Henan
Zhonpin Food
Share
Co., Ltd.
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611,000
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80,000
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531,000
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1.9
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%
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Jinyang
Tang
Chief
Economist
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100,000
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100,000
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—
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—
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*
Constitutes less than 1%
PLAN
OF DISTRIBUTION
The
purpose of this prospectus is to permit each selling stockholder and his or her
pledgees, donees, transferees and other successors in interest (all of whom may
be selling stockholders for purposes of this prospectus) to offer and resell all
or a portion of the shares the selling stockholders have acquired pursuant to
the stock option agreement. The selling stockholders may also choose to dispose
of all or a portion of the shares of common stock covered by this prospectus by
gift to a third party or as a donation to a charitable or other nonprofit
entity.
The
sale of the common stock by any selling stockholder, including any donee,
pledgee or other transferee who receives common stock from a selling
stockholder, may be effected from time to time by selling shares directly to
purchasers or to or through broker-dealers. In connection with any such sale,
any such broker dealer may act as agent for the selling stockholder or may
purchase from the selling stockholder all or a portion of the common stock as
principal, and sales may be made pursuant to any of the methods described below.
These sales may be made on any securities exchange on which our common stock is
then traded, in the over-the-counter market, in negotiated transactions or
otherwise at prices and at terms then prevailing or at prices related to the
then current market prices or at prices otherwise negotiated.
The
common stock may also be sold in one or more of the following
transactions:
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•
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block
transactions (which may involve crosses) in which a broker dealer may sell
all or a portion of such securities as agent but may position and resell
all or a portion of the block as principal to facilitate the
transaction;
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•
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purchases
by a broker dealer, as principal, and resale by such broker dealer for its
own account pursuant to a prospectus
supplement;
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•
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a
special offering, an exchange distribution or a secondary distribution in
accordance with applicable rules promulgated by the National Association
of Securities Dealers, or stock exchange
rules;
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•
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ordinary
brokerage transactions and transactions in which a broker dealer solicits
purchasers;
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•
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sales
“at the market” to or through a market maker or into an existing trading
market, on an exchange or otherwise, for such securities;
and
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•
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sales
in other ways not involving market markers or established trading markets,
including direct sales to
purchasers.
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In effecting sales, broker-dealers
engaged by a selling stockholder may arrange for other broker-dealers to
participate. Broker-dealers may receive commissions or other compensation from
the selling stockholder in the form of commissions, discounts or concessions.
Broker-dealers may also receive compensation from purchasers of the common stock
for whom they act as agents or to whom they sell as principals or both.
Compensation as to a particular broker dealer will be in amounts to be
negotiated. The selling stockholders do not expect these commissions and
discounts to exceed what is customary in the type of transactions involved. No
such broker dealer will receive compensation in excess of that permitted by the
rules of the Financial Industry Regulatory Authority, or FINRA. In no event will
any broker dealer receive total compensation in excess of the maximum amount
allowed by FINRA.
The
distribution of the common stock covered by this prospectus also may be effected
from time to time in one or more underwritten transactions at a fixed price or
prices that may be changed, or at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated prices. Any
such underwritten offering may be on a “best efforts” or a “firm commitment”
basis. In connection with any underwritten offering, underwriters or agents may
receive compensation in the form of discounts, concessions or commissions from
the selling stockholders or from purchasers of the common stock. Underwriters
may sell the common stock to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agents.
The
selling stockholders have advised us that they have not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their common stock covered by this
prospectus, nor is there any underwriter or coordinating broker dealer acting in
connection with the proposed sale of common stock by the selling stockholders
pursuant to this prospectus. We will file a supplement to this prospectus, if
required, under Rule 424(b) under the Securities Act that will include any
material information with respect to the plan of distribution not previously
disclosed or any material change in such information. This supplement will
disclose, among other information:
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•
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the
names of the selling stockholders and of participating broker
dealer(s);
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•
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the
amount of common stock involved;
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•
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the
price at which the common stock is to be
sold;
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•
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the
commissions paid or the discounts or concessions allowed to the broker
dealer(s), where applicable;
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•
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that
the broker dealer(s) did not conduct any investigation to verify the
information set out or incorporated by reference in the prospectus;
and
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•
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other
facts material to the
transaction.
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The
selling stockholders and any underwriters, or broker-dealers or agents that
participate in the distribution of the common stock covered by this prospectus
may be deemed to be “underwriters” within the meaning of Section 2(a)(11)
of the Securities Act, and any profit on the sale of the common stock by them
and any discounts, commissions or concessions received by any such underwriters,
dealers or agents may be deemed to be underwriting discounts and commissions
under the Securities Act. Because the selling stockholders may be deemed to be
“underwriters” under the Securities Act, the selling stockholders will be
subject to the prospectus delivery requirements of the Securities
Act.
Except
for the aggregate purchase price of the options exercised by the selling
stockholders in connection with the sale of shares offered pursuant to this
prospectus, we will not receive any of the proceeds from the sale of the shares
covered by this prospectus. We are paying the expenses incurred in registering
the shares of common stock covered by this prospectus and preparing this
prospectus, but all selling and other expenses, including but not limited to any
discounts, commissions and applicable transfer taxes incurred by each selling
stockholder will be borne by that selling stockholder.
The
selling stockholders may agree to indemnify any agent, dealer or broker dealer
that participates in a transaction involving the sale of shares of common stock
covered by this prospectus against certain liabilities, including liabilities
arising under the Securities Act.
From
time to time, the selling stockholders may pledge their common stock pursuant to
the margin provisions of their customer agreements with their brokers. Upon
default by a selling stockholder, the broker may offer and sell such pledged
common stock from time to time. Upon a sale of the common stock, the selling
stockholders intend to comply with the prospectus delivery requirements under
the Securities Act by delivering a prospectus to each purchaser in the
transaction. We intend to file any amendments or other necessary documents in
compliance with the Securities Act that may be required in the event the selling
stockholders default under any customer agreement with brokers.
We
have informed the selling stockholders that the anti-manipulative provisions of
Regulation M promulgated under the Exchange Act may apply to their sales in the
market.
In
order to comply with the securities laws of certain states, if applicable, the
common stock covered by this prospectus may be sold only through registered or
licensed broker-dealers.
The
selling stockholders may resell all or a portion of the shares of common stock
covered by this prospectus in open market transactions in reliance upon
Rule 144 (as in effect at the time of sale) under the Securities Act,
provided they meet the criteria and conform to the requirements of such rule. In
addition, in accordance with General Instruction C to Form S-8, shares of common
stock to be offered or resold by means of this prospectus by a selling
stockholder may not exceed, during any three month period, the amount specified
in Rule 144(e) under the Securities Act.
LEGAL
MATTERS
The
legality of the issuance of the shares offered in this prospectus will be passed
upon for us by Pryor Cashman LLP, New York, New York. Pryor Cashman LLP holds
warrants to purchase 10,000 units, and Eric M. Hellige owns warrants to purchase
1,650 units, at an initial exercise price of $8.00 per unit, each unit
consisting of two shares of our Series A convertible preferred stock and a
warrant to purchase one share of our common stock at an initial exercise price
of $5.00 per share.
EXPERTS
Our
audited consolidated financial statements as of December 31, 2007 and 2006, and
for each of the years in the three-year period ended December 31, 2007,
appearing in our Form 10-K for the year ended December 31, 2007 and incorporated
by reference into this prospectus, have been audited by Child, Van Wagoner &
Bradshaw, PLLC, an independent registered public accounting firm, as set forth
in their report dated March 24, 2008. These financial statements have been
incorporated by reference in reliance upon the report of such firm given upon
the firm's authority as an expert in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus constitutes the prospectus of our company filed as part of a
registration statement on Form S-8 and it does not contain all information in
the registration statement as certain portions have been omitted in accordance
with the rules and regulations of the Securities and Exchange Commission (the
“Commission”).
We are
subject to the informational requirements of the Securities Exchange Act of
1934, which requires us to file reports, proxy statements and other information
with the Commission. Such reports, proxy statements and other information may be
inspected at the public reference room of the Commission at Judiciary Plaza,
4350 Fifth Street N.W., Washington D.C. 20549. Copies of such material can be
obtained from the facility at prescribed rates. Please call the Commission toll
free at 1-800-SEC-0330 for information about its public reference room. Because
we file documents electronically with the SEC, you may also obtain this
information by visiting the Commission's Internet website at http://www.sec.gov
or our website at http://www.zpfood.com. Information contained in our website is
not part of this prospectus.
Our
statements in this prospectus about the contents of any contract or other
document are not necessarily complete. You should refer to the copy of our
contract or other document we have filed as an exhibit to the registration
statement for complete information.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, and all
documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act prior to the filing of a post-effective amendment to
this registration statement which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and shall
be deemed to be a part hereof from the date of the filing of such
documents:
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(1)
|
the
description of our common stock contained in our Registration Statement on
Form 8-A filed with the Commission on July 25, 2007, including any
amendment or report filed for the purpose of updating such
information;
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(2)
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our
Annual Report on Form 10-K for the fiscal year ended December 31, 2007,
filed with the Commission on March 28,
2008;
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(3)
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our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
2008, June 30, 2008 and September 30, 2008, as filed with the Commission
on May 12, 2008, August 11, 2008 and November 10, 2008,
respectively;
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(4)
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our
Current Reports on Form 8-K filed with the Commission on May 5, 2008, June
11, 2008, July 30, 2008, August 11, 2008, October 9, 2008, October 14,
2008, November 6, 2008, November 10, 2008 and November 21, 2008 (except
any portions thereof which are furnished and are not filed shall not be
deemed incorporated); and
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(5)
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all
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year covered by the report referred to in (2)
above.
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INFORMATION
WITH RESPECT TO THE REGISTRANT
The
information required to be disclosed in the registration statement pertaining to
our company is incorporated by reference from the documents listed as
incorporated by reference above. Such documents are being delivered with this
prospectus. See "Risk Factors" and "Incorporation of Certain Information by
Reference."
MATERIAL
CHANGES
There
have been no material changes since December 31, 2007 which have not been
described in the Annual Report on Form 10-K, Quarterly Reports on Form 10-Q,
Current Reports on Form 8-K or in this prospectus.
COMMISSION
POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
We
maintain directors and officers insurance which, subject to certain exclusions,
insures our directors and officers against certain losses that arise out of any
neglect or breach of duty (including, but not limited to, any error,
misstatement, act, or omission) by the directors or officers in the discharge of
their duties, and insures us against amounts which we have paid or may become
obligated to pay as indemnification to our directors and/or officers to cover
such losses.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling our company pursuant to
the foregoing, we have been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
ZHONGPIN
INC.
610,000
SHARES OF COMMON STOCK
PROSPECTUS
December
8, 2008
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by
Reference
.
The following documents, and all
documents subsequently filed by Zhongpin Inc. (“we,” “us” or “our”) pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and shall
be deemed to be a part hereof from the date of the filing of such
documents:
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(1)
|
the
description of our common stock contained in our Registration Statement on
Form 8-A filed with the Commission on July 25, 2007, including any
amendment or report filed for the purpose of updating such
information;
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(2)
|
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2007,
filed with the Commission on March 28,
2008;
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(3)
|
our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
2008, June 30, 2008 and September 30, 2008, as filed with the Commission
on May 12, 2008, August 11, 2008 and November 10, 2008,
respectively;
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(4)
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our
Current Reports on Form 8-K filed with the Commission on May 5, 2008, June
11, 2008, July 30, 2008, August 11, 2008, October 9,2008, October 14,
2008, November 6, 2008, November 10, 2008 and November 21, 2008 (except
any portions thereof which are furnished and are not filed shall not be
deemed incorporated); and
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(5)
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all
other reports filed pursuant to Section 13(a) or 15(d) of theExchange Act
since the end of the fiscal year covered by the report referred to in (2)
above.
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Item 4.
Description of
Securities
.
Not applicable.
Item 5.
Interests of Named Experts and
Counsel
.
Not applicable.
Item 6. Indemnification of Directors
and Officers
.
Under Delaware law, a Delaware
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
one by or in the right of the corporation) by reason of the fact that the person
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys’ fees actually and
necessarily incurred as a result of such action or proceeding, if such director
or officer acted, in good faith, for a purpose which such person reasonably
believed to be, in, or not opposed to, the best interests of the corporation
and, in criminal actions or proceedings, in addition, had no reasonable cause to
believe that such conduct was unlawful.
In the case of a derivative action, a
Delaware corporation may indemnify any such person against expense, including
attorneys’ fees actually and necessarily incurred by such person in connection
with the defense or settlement of such action or suit if such director or
officer if such director or officer acted, in good faith, for a purpose which
such person reasonably believed to be, in or not opposed to, the best interests
of the corporation, except that no indemnification will be made in respect on
any claim, issue or matter as to which such person will have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or any other court in which such action was
brought determines such person is fairly and reasonably entitled to indemnity
for such expense.
Delaware Law permits a corporation to
include in its certificate of incorporation a provision eliminating or limiting
a director’s liability to a corporation or its stockholders for monetary damages
for breaches of fiduciary duty. Delaware Law provides, however, that liability
for breaches of the duty of loyalty, acts or omissions not in good faith or
involving intentional misconduct, or knowing violation of the law, and the
unlawful purchase or redemption of stock or payment of unlawful purchase or
redemption of stock or payment of unlawful dividends or the receipt of improper
personal benefits cannot be eliminated or limited in this manner.
Our Certificate of Incorporation and
Bylaws provide that we will indemnify our directors to the fullest extent
permitted by Delaware law and may, if and to the extent authorized by the Board
of Directors, indemnify our officers and any other person whom we have the power
to indemnify against any liability, reasonable expense or other matter
whatsoever.
Any amendment, modification or repeal
of the foregoing provisions shall be prospective only, and shall not affect any
rights or protections of any of our directors existing as of the time of such
amendment, modification or repeal.
We may also, at the discretion of the
Board of Directors, purchase and maintain insurance to the fullest extent
permitted by Delaware law on behalf of any of our directors, officers, employees
or agents against any liability asserted against such person and incurred by
such person in any such capacity.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling the Registrant pursuant
to the foregoing, the Registrant has been informed that in the opinion of the
SEC such indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable.
Item 7.
Exemption from Registration
Claimed
.
Not applicable
Item 8.
Exhibits
.
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Exhibit No.
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Description
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5.1
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Opinion
of Pryor Cashman LLP (regarding validity of common stock being
registered).
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10.1
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Zhongpin
Inc. Amended and Restated 2006 Equity Incentive Plan, dated as of June 15,
2007, as amended.
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23.1
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Consent
of Pryor Cashman LLP (included in its opinion filed as Exhibit
5.1).
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23.2
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Consent
of Child, Van Wagoner & Bradshaw,
PLLC.
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Item 9.
Undertakings
.
A. The undersigned Registrant
hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(a) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(b) To
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement; and
(c) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement;
provided
,
however
, that paragraphs
(1)(a) and (1)(b) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
B. The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant
hereby certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Changge City, Henan Province, People’s Republic of China on this
8th day of December 2008.
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ZHONGPIN
INC.
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By:
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/s/ Xianfu Zhu
|
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Name:
|
Xianfu
Zhu
|
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Title:
|
Chief
Executive
Officer
|
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
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Signature
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Title
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Date
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/s/ Xianfu Zhu
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Chairman
of the Board of Directors
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December
8, 2008
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Xianfu
Zhu
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and
Chief Executive Officer
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(Principal
Executive Officer)
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/s/
Feng Wang
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Chief
Financial Officer
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December
8, 2008
|
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Feng
Wang
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(Principal
Financial and
|
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Accounting
Officer)
|
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/s/
Baoke Ben
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Director
|
|
December
8, 2008
|
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Baoke
Ben
|
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/s/
Min Chen
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Director
|
|
December
8, 2008
|
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Min
Chen
|
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/s/
Raymond Leal
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Director
|
|
December
8, 2008
|
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Raymond
Leal
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/s/ Yaoguo Pan
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Director
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December
8, 2008
|
|
Yaoguo
Pan
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Grafico Azioni Zhongpin Inc. (MM) (NASDAQ:HOGS)
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