UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE
14A
(RULE
14a-101)
SCHEDULE
14A INFORMATION
PROXY
STATEMENT PURSUANT TO SECTION 14(a)
OF
THE SECURITIES EXCHANGE ACT OF 1934
Filed by
the Registrant x
Filed by
a Party other than the Registrant o
Check the
appropriate box:
o Preliminary
Proxy Statement
o Confidential,
for Use of the Commission only (as permitted by Rule 14a-6(e)(2))
x Definitive
Proxy Statement
o Definitive
Additional Materials
o Soliciting
Material Pursuant to Rule 240.14a-12
SKYPEOPLE FRUIT JUICE,
INC.
(Name of
Registrant as Specified In Its Charter)
____________________________________
(Name of
Person(s) Filing Proxy Statement, if other than the
Registrant)
Payment
of Filing Fee (Check the appropriate box):
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No
fee required.
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
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(1)
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Title
of each class of securities to which transaction applies:
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Aggregate
number of securities to which transaction applies:
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(3)
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Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
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(4)
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Proposed
maximum aggregate value of transaction:
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(5)
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Total
fee paid: _____________
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Fee
paid previously with preliminary
materials:
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Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its
filing.
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(1)
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Amount
Previously Paid: _____________
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(2)
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Form,
Schedule or Registration Statement No.:
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Party: _____________
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NOTICE
OF ANNUAL MEETING OF SHAREHOLDERS
To
Be Held June 8, 2009
NOTICE IS
HEREBY GIVEN that the Annual Meeting of Shareholders of SkyPeople Fruit Juice,
Inc., a Florida corporation (the “Company” or “SkyPeople”), will be held at our
principal executive offices, located at 16F, National Development Bank Building,
No.2, Gaoxin 1st RD,
Hi-Tech Zone, Xi’an, Shaanxi, China, on Monday, June 8, 2009 at 10:00 A.M.,
local time, for the following purposes, as set forth in the attached Proxy
Statement:
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To
elect directors to hold office until the next Annual Meeting of
Shareholders; and
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To
transact such other business as may properly come before the meeting or
any adjournment thereof.
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The Board of Directors has fixed the
close of business on April 15, 2009 as the record date for determining the
shareholders entitled to notice of and to vote at the Annual Meeting and any
adjournment and postponements thereof.
After
careful consideration, the SkyPeople Fruit Juice Board of Directors recommends a
vote IN FAVOR OF the nominees for director named in the accompanying proxy
statement.
Shareholders
are cordially invited to attend the Annual Meeting in person. Whether you plan
to attend the Annual Meeting or not, please complete, sign and date the enclosed
Proxy Card and return it without delay in the enclosed postage-prepaid envelope.
If you do attend the Annual Meeting, you may withdraw your Proxy and vote
personally on each matter brought before the meeting.
By
Order of the Board of Directors
YONGKE
XUE
Chairman
April 30,
2009
Xi’an,
China
IMPORTANT
WHETHER
OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING, YOU ARE REQUESTED TO MARK, DATE
AND SIGN THE ENCLOSED PROXY CARD AND RETURN IT AS PROMPTLY AS POSSIBLE IN THE
ENCLOSED POSTAGE-PREPAID RETURN ENVELOPE. SIGNING AND RETURNING A PROXY WILL NOT
PREVENT YOU FROM VOTING IN PERSON AT THE MEETING.
THANK
YOU FOR ACTING PROMPTLY
Important
Notice Regarding the Availability of Proxy Materials for the Annual Meeting of
Stockholders to be held June 8, 2009: This Proxy Statement and our
2008 Annual Report to Shareholders are available at
http://www.skypeoplefruitjuice.com, which does not have “cookies” that identify
visitors to the site.
TABLE OF CONTENTS
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PROXY STATEMENT
FOR
THE ANNUAL MEETING OF SHAREHOLDERS
OF
SKY
PEOPLE FRUIT JUICE, INC.
To
Be Held on June 8, 2009
This
Proxy Statement is furnished in connection with the solicitation of the enclosed
Proxy on behalf of the Board of Directors of SkyPeople Fruit Juice, Inc., a
Florida corporation (“Skypeople ” or the “Company”), for use at the Annual
Meeting of Shareholders of the Company (the “Annual Meeting”) to be held at our
principal executive offices, located at 16F, National Development Bank Building,
No.2, Gaoxin 1st RD,
Hi-Tech Zone, Xi’an, Shaanxi, China, at 10:00 a.m., local time, on Monday, June
8, 2009, and at any adjournments thereof, for the purposes of electing directors
and such other business as may properly come before the Annual Meeting. This
Proxy Statement and the enclosed proxy card are intended to be mailed to
shareholders on or about May 15, 2009.
Record Date and Voting Securities
The Board of Directors fixed the close of business on April 15, 2009 as the
record date for shareholders entitled to notice of and to vote at the Annual
Meeting. As of that date, there were 22,271,786 shares of the
Company’s common stock (the “Common Stock”) outstanding and entitled to vote,
the holders of which are entitled to one vote per share. The only other class or
series of the Company’s capital stock which is outstanding is the Company’s
Series B Convertible Preferred Stock (the “Series B Preferred Stock”). The
Series B Preferred Stock has no voting rights with respect to the matters to be
considered at the Annual Meeting.
Voting Generally
The presence in person or by proxy of holders of a
majority of the shares entitled to vote at the Annual Meeting is necessary to
constitute a quorum at the Annual
Meeting. Abstentions and “non-votes” are treated as shares
that are present and entitled to vote for purposes of determining the presence
of a quorum. “Non-votes” occur when a proxy:
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is
returned by a broker or other stockholder who does not have authority to
vote;
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does
not give authority to a proxy to vote;
or
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withholds
authority to vote on one or more
proposals.
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Our
Amended and Restated Articles of Incorporation states that there is no
cumulative voting in the election of directors. Assuming the presence of a
quorum, the five nominees for director who receive the most votes will be
elected. Abstentions and non-votes will be counted for purposes of
determining the presence of a quorum, but will not be counted as a vote for
the election as a director of any nominee.
Votes
cast in person or by proxy at the Annual Meeting will be tabulated at the Annual
Meeting. All valid, unrevoked proxies will be voted as
directed. In the absence of instructions to the contrary, properly
executed proxies will be voted for the election of the nominees for director set
forth herein.
If any matters other than those
addressed on the proxy card are properly presented for action at the Annual
Meeting, the persons named in the proxy card will have the discretion to vote on
those matters in their best judgment, unless authorization is
withheld.
Many of
our stockholders hold their shares through a stockbroker, bank or other nominee
rather than directly in their own names. As summarized below, there are some
distinctions between shares held of record and those owned
beneficially.
Stockholder of
Record. If your shares are registered directly in your name or
with our transfer agent, Holloday Stock Transfer, you are considered the
stockholder of record with respect to those shares and these proxy materials are
being sent directly to you by us. As a stockholder of record, you
have the right to grant your voting proxy directly to us or to vote in person at
the Annual Meeting. We have enclosed a proxy card for your use.
Beneficial
Holder. If your shares are held in a brokerage account or by a
bank or other nominee, you are considered the beneficial owner of the shares
held in street name, and these proxy materials are being forwarded to you by
your broker or nominee who is considered the stockholder of record with respect
to those shares. As the beneficial owner, you have the right to direct your
broker on how to vote and are also invited to attend the meeting. However, since
you are not the stockholder of record, you may not vote these shares in person
at the meeting. Your broker or nominee has enclosed a proxy card for your
use.
Deadline
for Voting by Proxy
In order to be counted, votes cast by
proxy must be received prior to the Annual Meeting.
Revocability of Proxies
Shareholders
are requested to date, sign and return the enclosed proxy card to make certain
their shares will be voted at the Annual Meeting. Any proxy given may be revoked
by the shareholder at any time before it is voted by delivering written notice
of revocation to the Secretary of the Company, by filing with the Secretary of
the Company a proxy bearing a later date, or by attending the Annual Meeting and
voting in person. All proxies properly executed and returned will be voted
in accordance with the instructions specified thereon. If no instructions are
specified, proxies will be voted FOR the election of the five nominees for
directors named under “Election of Directors.”
Important
Information Regarding Delivery of Proxy Material
The
Securities and Exchange Commission (the “SEC”) has adopted amendments to the
proxy rules that change how companies must provide proxy materials to its
stockholders. These new rules are often referred to as “notice and
access,” under which a company may select either of the following options for
making proxy materials available to its stockholders:
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the
full set delivery option; or
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the
notice only option.
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A company may use a single method for
all of its stockholders, or use full set delivery for some while adopting the
notice only option for others.
SkyPeople must comply with these new
rules in connection with the Annual Meeting.
Full
Set Delivery Option
Under the full set delivery option, a
company delivers all proxy material to its stockholders by mail as it would have
done prior to the change in the rules. In addition to delivery of
proxy materials to stockholders, the company must post all proxy materials on a
publicly-accessible website and provide information to stockholders about how to
access the website.
In connection with the Annual
Meeting, SkyPeople elected to use the full set delivery
option. Accordingly, you should have received SkyPeople’s proxy
materials by mail. These proxy materials include the Notice of Annual
Meeting of Stockholders, proxy statement, proxy card and 2008 Annual Report to
Shareholders. Additionally, Skypeople has posted these materials at
www.skypeoplefruitjuice.com.
Notice
Only Option
Under the notice only option, a
company must post all proxy materials on a publicly-accessible
website. Instead of delivering proxy materials to its stockholders,
the company instead delivers a “Notice of Internet Availability of Proxy
Material.” The notice includes, among other matters:
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information
regarding the date and time of the Annual Meeting of Shareholders as well
as the items to be considered at the
meeting;
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information
regarding the website where the proxy materials are posted;
and
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various
means by which a stockholder can request paper or e-mail copies of the
proxy materials.
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If a stockholder requests paper
copies of the proxy materials, these materials must be sent to the stockholder
within three business days and by first class mail.
SkyPeople
May Use the Notice Only Option in the Future
Although SkyPeople elected to use the
full set delivery option in connection with the Annual Meeting, it may choose to
use the notice only option in the future. By reducing the amount of
materials that a company needs to print and mail, the notice only option
provides an opportunity for costs savings as well as conservation of paper
products. Many companies that have used the notice only option have
also experienced a lower participation rate resulting in fewer stockholders
voting at the annual meeting. SkyPeople plans to evaluate the
future possible cost savings as well as the possible impact on stockholder
participation as it considers future use of the notice only option.
Householding
The SEC
has adopted rules that permit companies and intermediaries (e.g. brokers) to
satisfy the delivery requirements for proxy materials with respect to two or
more stockholders sharing the same address by delivering a single set of proxy
materials. This process, which is commonly referred to as
“householding,” potentially results in extra convenience for stockholders and
cost savings for companies.
If, at
any time, you no longer wish to participate in “householding” and would prefer
to receive a separate set of proxy materials, you may:
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Send
a written request to the Company’s Corporate Secretary at 16F, National
Development Bank Building, No.2, Gaoxin 1st
RD, Hi-Tech Zone, Xi’an, Shaanxi, China, 710075, if you are a stockholder
of record; or
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Notify
your broker, if you hold your common shares in street
name.
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SKYPEOPLE
INFORMATION
Our
principal executive offices are located at 16F, National Development Bank
Building, No.2, Gaoxin 1st RD,
Hi-Tech Zone, Xi’an, Shaanxi, China, 710075. The telephone number of our
principal offices is 011-86-29-88386415.
BOARD
OF DIRECTORS
Our Board
of Directors, which is elected by our stockholders, is our ultimate
decision-making body, except with respect to those matters reserved to our
stockholders. The Board selects the officers who are charged with the conduct of
our business, and has responsibility for establishing broad corporate policies
and for our overall performance. The Board is not involved in operating details
on a day-to-day basis. The Board is advised of our business through regular
reports and analyses and discussions with our principal executive officer and
other officers.
Directors
The Board
has nominated the persons listed below for election to the Board at the Annual
Meeting, to hold office until the next Annual Meeting and until their respective
successors are elected and qualified. It is not contemplated that any
of the nominees will be unable or unwilling to serve as a director, but, if that
should occur, the persons designated as proxies will vote in accordance with
their best judgment. In no event will proxies be voted for a greater number of
persons than the number of nominees named in this Proxy Statement. The following
sets forth, as of April 30, 2009, the names of each of the five nominees for
election as a director, his principal occupation, age, the year he became a
director of the Company, and additional biographical data.
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NAME
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AGE
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PRINCIPAL
OCCUPATION
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Guolin
Wang
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45
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Professor
of Jiaotong University in Xi’an, China
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Norman
Ko
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44
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Partner
of Smith Mandel & Associates, LLP
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Robert
B Fields
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Chairman
and Executive Advisor of Actforex, Inc.
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Xiaoqin
Yan
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31
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Director
of Shaanxi Tianren Organic Food Co., Ltd.
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Yongke
Xue
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42
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Chief
Executive Officer and Chairman of SkyPeople Fruit Juice,
Inc.
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Norman
Ko
Guolin
Wang
Mr. Wang
has been serving as one of our directors since April 7, 2008. Since October 2005
Mr. Wang has served as the Director of Shaanxi Tianren Organic Food Co., Ltd.
(“Shaanxi Tianren”), which became a subsidiary of the Company in 2008. Since
1996 he has been a professor in the Finance Department of the
Management School and the Economics and Finance School of Xi’an Jiaotong
University. He previously served as the Director and Chairman of Xi’an Changtian
Environmental Protection Engineering Co., Ltd. from February 2006 to June 2007.
Mr. Wang acted as the head of the Management School Graduate Office and
Chinese-Singapore Management Doctor Center Office of Xi’an Jiaotong University
from 1988 to 1996. Mr. Wang graduated from Xi’an Jiaotong University in July
1983. He majored in Electronics & Telecommunication and attained a Bachelor
of Science Degree. In July 1983, he attained a Masters Degree and majored in
Management Science and Engineering. Then, he graduated from
the University’s School of Economics & Finance in 2006. He majored in
Management Science and Engineering and received a Doctorate
Degree.
Robert B.
Fields
Mr.
Fields has been serving as one of our directors since April 25, 2008. From July
27, 2006 to August 2008, Mr. Fields served on the Board of Directors of Dorado
Exploration Inc. Since February 15, 2001, Mr. Fields has served as the Chairman
of ActForex, Inc., a New York fully hosted management service provider of
proprietary software for currency trading with over 20,000 registered traders.
From June 2005 through the annual shareholder meeting on May 31, 2006, Mr.
Fields served on the Board of Directors and as Chairman of the Audit Committee
of Genoil Inc. (OTCBB: GNOLF.OB). From 1999 to 2002, Mr. Fields was Executive
Advisor to Laidlaw Global Corp. (AMEX). In June 2000, Mr. Fields was appointed
to the Board of Statmon Technologies, Inc. (OTCBB: STCA) and continues to serve
on that board as well as to serve as Chairman of Statmon’s Audit Committee. From
1997 to 1998, Mr. Fields served as Vice Chairman and, from 1997 to 1999, as a
director of Laidlaw Ship Funding Ltd. Mr. Fields is currently the President of
the Friars National Association Foundation, Inc., a philanthropy of the arts
based in New York, and since 1998 Mr. Fields has held various officer positions
with the organization. From 1995 to 1998 he was a director of Hospital Staffing
Services, Inc. (NYSE), and prior to that Mr. Fields also served as President and
CEO of L’Express Inc., a New Orleans based interstate regional airline, EVP of
American Finance Group in Boston, and as a director and on the Audit Committee
of Flight International Group of Newport News, Virginia, a public company.
Additionally, Robert Fields was managing director of Equifund, L.P. Since 1979
he has served as the President of Tradestar Ltd., his wholly owned consulting
firm that specializes in asset appreciation. Additionally, since 2006, Mr.
Fields has served as the managing member of Petrofields LLC, based in New York.
He has been a member of the board of directors for eight public companies and a
director of more than a dozen companies.
Xiaoqin
Yan
Ms. Yan
has been serving as one of our directors since April 7, 2008. Ms. Yan is the
Director of Shaanxi Tianren and has been with Shaanxi Tianren since January
2006. From June 2005 to December 2005 Ms. Yan was not employed. From March 2004
to June 2005, Ms. Yan held the position of Manager of Human Resources of Express
Worldwide Ltd. Ms. Yan served as the Manager of Logistics of Tianjin Dingyuan
International Foods Co., Ltd. from October 1999 to March 2004. Ms. Yan graduated
from the Air Force University of Engineering and majored in Computer Technology.
In July of 2006 she graduated from PLA Military School and received a
Bachelor’s Degree in Business Management.
Yongke
Xue.
Mr. Xue
has been serving as one of our directors and Chief Executive Officer of the
Company since February 26, 2008. Mr. Xue has served as the Director at Shaanxi
Tianren since December 2005. Mr. Xue served as the general manager of Shaanxi
Hede Investment Management Co., Ltd. from December 2005 to June 2007. Prior to
that, he served as the business director of the investment banking division of
Hualong Securities Co., Ltd. from April 2001 to December 2005. He also acted as
the Vice General Manager of Shaanxi Huaye Foods Co., Ltd. from July 1998 to
March 2001. From July 1989 to June 1998, he worked at the Northwestern Materials
Bureau of the PLA General Logistics Department. Mr. Xue graduated from Xi’an
Jiaotong University with an MBA in 2000. Mr. Xue graduated from National
University of Defense Technology in July of 1989 and he majored in Metal
Material & Heat Treatment and received a Bachelor’s Degree.
The Board
has determined for fiscal year 2008 that all our directors, other than Yongke
Xue, are independent directors (“independent director" means a person other than
an executive officer or employee of the Company or any other individual having a
relationship which, in the opinion of the Company's Board of Directors, would
interfere with the exercise of independent judgment in carrying out the
responsibilities of a director). There are no family relationships among or
between any of our directors, executive officers or key employees.
Vote
Required for Election
The five
persons receiving the highest number of affirmative votes will be elected as
directors of the Company. Votes against a nominee or withheld from
voting (whether by abstention, non-votes or otherwise) will have no legal effect
on the vote.
Executive
Officers
The
following table sets forth as of April 30, 2009, the names, positions and ages
of our current executive officers. Our officers are elected by the Board of
Directors and their terms of office are, except to the extent governed by an
employment contract, at the discretion of the Board of Directors.
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NAME
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AGE
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PRINCIPAL
OCCUPATION
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Yongke
Xue *
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42
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Chief
Executive Officer and Chairman of SkyPeople Fruit Juice,
Inc.
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Spring
Liu
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36
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Chief
Financial Officer and Corporate
Secretary
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* See
“Directors” above for Mr. Xue’s biography.
Executive
officers serve at the pleasure of our Board. There is no family relationship
between any executive officer or director of the Company.
Ms. Liu
has been serving as our Chief Financial Officer since April 14, 2008 and our
Secretary since April 25, 2008. Ms. Liu passed all sections of the Uniform
Certified Public Accountants Examination in California in March of 2006. Ms. Liu
earned a Bachelor of Arts in English Degree from the Xi’an Foreign Languages
University, China in 1996, and a Bachelor of Science Degree in Accounting,
California in 2004. Prior to her appointment as Chief Financial Officer, Ms.
Spring Liu served at Trio-Tech International from February 2003 to
April 2008 in the following positions: Accountant, Accounting Manager,
Financial Reporting Manager, Assistant Corporate Secretary and Corporate
Secretary. Her most recent position with Trio-Tech International was Corporate
Secretary and Financial Reporting Manager. Ms. Spring Liu is experienced in
corporate management and Securities and Exchange Commission (“SEC”) reporting.
In addition, she is familiar with the compliance of the U.S. GAAP standards to
foreign subsidiaries’ accounting records, and is proficient in adopting strong
internal control methods according to the requirements of the Sarbanes-Oxley Act
of 2002.
Section 16(a) Beneficial
Ownership Reporting Compliance
Section 16(a) of the Securities
Exchange Act of 1934, as amended, requires that directors, certain officers of
the Company and ten percent shareholders file reports of ownership and changes
in ownership with the SEC as to the Company’s securities beneficially owned by
them. Such persons are also required by SEC rules to furnish the Company with
copies of all Section 16(a) forms they file.
Based
solely on its review of copies of such forms received by the Company, or on
written representations from certain reporting persons, the Company believes
that all Section 16(a) filing requirements applicable to its officers, directors
and greater than ten percent shareholders were complied with during the fiscal
year ended December 31, 2008 (“fiscal year 2008”), except that Initial
Statements of Beneficial Ownership on Form 3 were filed late for six persons who
are directors and officers of the Company - Guolin Wang, Norman Ko, Robert B.
Fields, Xiaoqin Yan, Yongke Xue, and Spring Liu. An Annual Statement of Changes
in Beneficial Ownership on Form 5 was filed for each of Guolin Wang, Norman Ko,
Xiaoqin Yan, Yongke Xue, and Spring Liu before the 45th day
after the end of fiscal year 2008. Robert B. Fields filed a Form 3 in April
2009.
Code
of Ethics and Governance Program
Our Board
of Directors has established a written Corporate Governance Program to address
significant corporate governance issues that may arise. It sets forth
the responsibilities and qualification standards of the members of the Board of
Directors and is intended as a governance framework within which the Board of
Directors, assisted by its committees, directs our affairs.
Our Board
has adopted a Code of Business Conduct and Ethics that applies to all Company
directors, officers and employees. Our Insider Trading Policy, Corporate
Governance Program, the written Charters for our Audit and Compensation
Committee, as well as periodic and current reports we have filed with the SEC
are available on our website, www.skypeoplefruitjuice.com,
and are available in print to any shareholder upon request made to our Corporate
Secretary at 16F, National Development Bank Building, No.2, Gaoxin 1st RD,
Hi-Tech Zone, Xi’an, Shaanxi, China, 710075. Amendments and waivers, if any, to
any of the foregoing documents will be disclosed on our website.
Committees of the Board and
Attendance at Meetings
Our Board
meets on a regular basis during the year to review significant developments
affecting us and to act on matters requiring Board approval. It also holds
special meetings when an important matter requires Board action between
scheduled meetings. Members of senior management regularly attend Board meetings
to report on and discuss their respective areas of responsibility. The Board
held three meetings during fiscal year 2008. All of the directors
attended (in person or by telephone) all the meetings of the Board and any
committees of the Board on which they served during the fiscal year. Directors
are expected to use their best efforts to be present at the Annual Meeting of
Shareholders.
The
Company does not have a standing nominating committee. The entire Board
nominates the directors for election at the Annual Meeting. The Board
of Directors does not believe that a separate nominating committee is necessary
as any selection of nominees, by virtue of the composition of the current Board,
would be by a vote that would be the same as the vote of any separate committee
consisting of only the independent directors. Furthermore, the Board
values the input of each of its members and believes that input is important in
determining the Board nominees. At such time, if any, as the Board
composition changes, the Company may establish a separate nominating
committee. As a result, the entire Board participates in the
consideration of Board nominees and nominates the candidates for election named
in this Proxy Statement.
The Board
has adopted a resolution addressing the nomination process and related matters.
That resolution states, among other things, that at an appropriate time prior to
each Annual Meeting of Shareholders at which directors are to be elected or
reelected, a majority of the independent directors shall recommend to the Board
for nomination by the Board such candidates as said majority of the independent
directors, in the exercise of their judgment, have found to be well qualified
and willing and available to serve. The resolution further
states that the Board will evaluate the performance of its Board members on an
annual basis in connection with the nomination process. Where a reappointment is
being considered, among other factors, the attendance record, qualification and
service term should be considered. The Board may solicit recommendations for
nominees from persons that the Board believes are likely to be familiar with
qualified candidates, including, without limitation, members of the Board and
management of the Company. The Board may also determine to engage a
professional search firm to assist in identifying qualified candidates if the
need arises. The Board has not adopted specific minimum
qualifications for a position on the Company’s Board or any specific skills or
qualities that the Board believes are necessary for one or more of its members
to possess. However, the Board will consider various factors,
including, without limitation, the candidate’s qualifications, the extent to
which the membership of the candidate on the Board will promote diversity among
the directors, and such other factors as the Board may deem to be relevant at
the time and under the then existing facts and circumstances. The Company did
not receive any recommendations as to nominees for election of directors for the
Annual Meeting of Shareholders to be held on June 8, 2009.
The Board
will consider candidates proposed by shareholders of the Company who have held
the Company’s Common Stock for at least one year and who hold a minimum of 1% of
the Company’s outstanding shares, and will evaluate all such candidates upon
criteria similar to the criteria used by the Board to evaluate other
candidates. Shareholders desiring to propose a nominee for election
to the Board must do so in writing sufficiently in advance of an Annual Meeting
so that the Board has the opportunity to make an appropriate evaluation of such
candidate and his or her qualifications and skills and to obtain information
necessary for preparing all of the disclosure required to be included in the
Company’s proxy statement for the related meeting should such proposed candidate
be nominated for election by shareholders. Shareholder candidate
proposals should be sent to the attention of the Corporate Secretary of the
Company at 16F, National Development Bank Building, No.2, Gaoxin 1st RD,
Hi-Tech Zone, Xi’an, Shaanxi, China, 710075.
The Board
has a standing Compensation Committee, which currently consists of four
independent directors, namely Messrs. Guolin Wang, Norman Ko, Xiaoqin Yan and
the Company’s Chief Executive Officer, Mr. Yongke Xue. The Compensation
Committee’s primary functions are to review and approve salaries, bonuses and
other compensation payable to our executive officers. The
Compensation Committee met once during the past fiscal year. A
Compensation Charter was adopted on April 13, 2009. A copy of the Compensation
Committee Charter is included with this Proxy Statement as Appendix
A.
The Board
has a separately-designated standing Audit Committee established in accordance
with Section 3(a)(58)(A) of the Exchange Act. The members thereof consist of
Messrs. Robert B. Fields, Guolin Wang and Norman Ko, Chairman. The
Board of Directors has determined that the Audit Committee has at least one
financial expert, namely Norman Ko, who meets the requirements of “audit
committee financial expert” as that term is defined in Item 407(d)(5) of
Regulation S-K under the Exchange Act. The Board of Directors has
affirmatively determined that Mr. Ko does not have a material relationship with
the Company that would interfere with the exercise of independent judgment.
Pursuant to its written charter, which charter was adopted by the Board of
Directors, the Audit Committee is charged with, among other responsibilities,
selecting our independent public accountants, monitoring the independence and
performance of our independent auditors, and monitoring the integrity of our
financial reporting process and systems of internal controls regarding finance,
accounting and legal compliances. The Audit Committee also reviews
with the independent public accountants and management the results of the audit,
including any recommendations of the independent public accountants for
improvements in accounting procedures and internal controls. The
Audit Committee held four meetings during fiscal year 2008. Each of
the members of the Audit Committee satisfies the independence standards
specified in NASDAQ Marketplace Rule 4200(a)(15) and Rule 10A-3 under the
Exchange Act. An Audit Committee Charter was adopted on April 13,
2009. A copy of the Audit Committee Charter is included with this Proxy
Statement as Appendix B.
Communications with
Directors
Stockholders
may communicate with the Board or to one or more individual members of the Board
by writing SkyPeople Fruit Juice, Inc., 16F, National Development Bank Building,
No.2, Gaoxin 1st RD,
Hi-Tech Zone, Xi’an, Shaanxi, China, 710075, Attention: Corporate Secretary. As
appropriate, communications received from stockholders are forwarded directly to
the Board, or to any individual member or members, depending on the facts and
circumstances outlined in the communication. The Board has authorized the
Secretary, in her discretion, to exclude communications that are patently
unrelated to the duties and responsibilities of the Board, such as spam, junk
mail and mass mailings. In addition, material that is unduly hostile,
threatening, illegal or similarly unsuitable will be excluded, with the
provision that any communication that is filtered out by the Secretary pursuant
to the policy will be made available to any non-management director upon
request.
Compensation Committee Interlocks and
Insider Participation
None.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
Review,
Approval or Ratification of Transactions with Related Persons
On September 30, 2008 the Board of
Directors of the Company approved a Statement of Policies and Procedures with
Respect to Related Party Transactions (the “Policy Statement”) under which the
Audit Committee shall review the material facts of all Interested Transactions
that require the Committee’s approval and either approve or disapprove of the
entry of the Company into the Interested Transaction, subject to certain
exceptions. If advance approval by the Audit Committee of an Interested
Transaction is not feasible, then the Interested Transaction shall be considered
and, if the Audit Committee determines it to be appropriate, ratified at the
Committee’s next regularly scheduled meeting. In determining whether to approve
or ratify an Interested Transaction, the Audit Committee will take into account,
among other factors it deems appropriate, whether the Interested Transaction is
on terms no less favorable than terms generally available to an unaffiliated
third-party under the same or similar circumstances and the extent of the
Related Person’s interest in the transaction.
No
director shall participate in any discussion or approval of an Interested
Transaction for which he or she is a Related Party, except that the director
shall provide all material information concerning the Interested Transaction to
the Committee.
If an
Interested Transaction will be ongoing, the Audit Committee may establish
guidelines for the Company’s management to follow in its ongoing dealings with
the Related Party. Thereafter, the Audit Committee, on at least an annual basis,
shall review and assess ongoing relationships with the Related Party to see
that they are in compliance with the Audit Committee’s guidelines and that the
Interested Transaction remains appropriate.
For
purposes of the Policy Statement, an “Interested Transaction” is any
transaction, arrangement or relationship or series of similar transactions,
arrangements or relationships (including any indebtedness or guarantee of
indebtedness) in which (1) the aggregate amount involved will or may be
expected to exceed $50,000 in any calendar year, (2) the Company is a
participant, and (3) any Related Party has or will have a direct or
indirect interest (other than solely as a result of being a director or a less
than 10 percent beneficial owner of another entity).
A
“Related Party” is any (a) person who is or was (since the beginning of the
last fiscal year for which the Company has filed a Form 10-K and proxy
statement, even if he or she does not presently serve in that role) an executive
officer, director or nominee for election as a director, (b) greater than
5 percent beneficial owner of the Company’s common stock, or
(c) immediate family member of any of the foregoing. Immediate family
member includes a person’s spouse, parents, stepparents, children, stepchildren,
siblings, mothers- and fathers-in-law, sons- and daughters-in-law, and brothers-
and sisters-in-law and anyone residing in such person’s home (other than a
tenant or employee).
Each of
the following Interested Transactions shall be deemed to be pre-approved by the
Audit Committee, even if the aggregate amount involved will exceed
$50,000.
|
1.
|
Employment of executive
officers. Any
employment by the Company of an executive officer of the Company
if:
|
|||||
|
a.
|
the
related compensation is required to be reported in the Company’s proxy
statement under Item 402 of the SEC’s compensation disclosure
requirements (generally applicable to “named executive officers”);
or
|
|||||
|
b.
|
the
executive officer is not an immediate family member of another executive
officer or director of the Company, the related compensation would be
reported in the Company’s proxy statement under Item 402 of the SEC’s
compensation disclosure requirements if the executive officer was a “named
executive officer”, and the Company’s Compensation Committee approved (or
recommended that the Board approve) such compensation.
|
|||||
|
2.
|
Director
compensation. Any
compensation paid to a director if the compensation is required to be
reported in the Company’s proxy statement under Item 402 of the SEC’s
compensation disclosure requirements.
|
|||||
|
3.
|
Certain transactions with
other companies. Any
transaction with another company at which a Related Person’s only
relationship is as an employee (other than an executive officer), director
or beneficial owner of less than 10% of that company’s shares, if the
aggregate amount involved does not exceed 2 percent of that company’s
total annual revenues.
|
|||||
|
4.
|
Certain Company charitable
contributions. Any
charitable contribution, grant or endowment by the Company to a charitable
organization, foundation or university at which a Related Person’s only
relationship is as an employee (other than an executive officer) or a
director, if the aggregate amount involved does not exceed the lesser of
$50,000 or 2 percent of the charitable organization’s total annual
receipts.
|
|||||
|
5.
|
Transactions where all
shareholders receive proportional benefits. Any
transaction where the Related Person’s interest arises solely from the
ownership of the Company’s Common Stock and all holders of the Company’s
Common Stock received the same benefit on a pro rata basis (e.g.
dividends).
|
|
|
6.
|
Transactions involving
competitive bids. Any
transaction involving a Related Party where the rates or charges involved
are determined by competitive bids.
|
|
|
7.
|
Regulated
transactions. Any
transaction with a Related Party involving the rendering of services as a
common or contract carrier, or public utility, at rates or charges fixed
in conformity with law or governmental authority.
|
|
|
8.
|
Certain banking-related
services. Any
transaction with a Related Party involving services as a bank depositary
of funds, transfer agent, registrar, trustee under a trust indenture, or
similar services.
|
Related
Party Transactions Since January 1, 2008
In
January 2008, our subsidiary, Shaanxi Tianren, paid rental expense of RMB 11,038
(approximately $1,618 based on the exchange rate as of December 31, 2008) to the
landlord of Shaanxi Hede Investment Management Co., Ltd.’s (“Hede”) for office
space on behalf of Hede. Yongke Xue, the Chairman of the Board and Chief
Executive Officer of the Company, owns 80% of the equity interest of Hede, and
Xiaoqin Yan, a director of Shaanxi Tianren, owns the remaining 20% of
Hede.
In May
2008, Shaanxi Tianren paid to Hede an aggregate amount of RMB 1,500,000
(approximately $219,861 based on the exchange rate as of December 31, 2008) in
rent for the period from January to May 2008 pursuant to a lease to Shaanxi
Tianren from Hede of all of the assets and facilities of Huludao Wonder Fruit
Co., Ltd. (“Huludao Wonder”). In the same month, Shaanxi Tianren assumed
Hede’s obligation of RMB 18,000,000 (approximately $2,638,329 based on the
exchange rate of December 31, 2008) for the balance of the purchase price for
Huludao Wonder under an agreement pursuant to which Hede purchased Huludao
Wonder.
On May
31, 2008, Shaanxi Tianren entered into a Stock Transfer Agreement with Hede.
Under the terms of the Stock Transfer Agreement, Hede agreed to transfer all its
stock ownership of Huludao Wonder to Shaanxi Tianren for a total price of RMB
48,250,000 (approximately $6,308,591 based on the exchange rate as of June 1,
2008). The sale was closed on June 10, 2008. As of May 31, 2008, Shaanxi Tianren
had a related party receivable of RMB 48,929,272 from Hede, which was credited
against the purchase price (so that Shaanxi Tianren did not pay any cash to Hede
for the purchase) and the remaining balance of the loans and advances of RMB
679,272 (approximately $99,564 based on the exchange rate as of December 31,
2008) to Hede was repaid to the Company on June 11, 2008.
On
February 26, 2008, pursuant to an oral agreement between the Company and Barron
Partners, L.P. (“Barron Partners”), the Company issued an aggregate of 615,147
shares of Series B Preferred Stock to Barron Partners in exchange for the
cancellation of (a) all indebtedness of the Company to Barron Partners under
certain outstanding convertible promissory notes issued to Barron Partners
during the period from September 30, 2004 to February 2008 to evidence working
capital loans made by Barron Partners to the Company and (b) all liquidated
damages payable to Barron Partners (including all amounts as well as any amounts
which would become payable in the future as a result of continuing failures) as
a result of the failure of the Company to have registered under the Securities
Act of 1933, as amended (the “Securities Act”), for resale by Barron Partners
the Common Stock of the Company issuable upon conversion of such convertible
promissory notes under various registration rights agreements between the
Company and Barron Partners entered into in connection with the foregoing
loans. The oral agreement was approved by the written consent of the then
sole director of the Company in February 2008.
As of the
date of this Proxy Statement, Barron Partners beneficially owns 10,159,265
shares of the Company’s Common Stock (approximately 31.3% of the Common
Stock).
The total
amount of principal and accrued interest under all convertible promissory notes
which were cancelled aggregated approximately $1,735,286 and the total amount of
accrued liquidated damages which were cancelled aggregated approximately
$3,320,132. All of the convertible promissory notes bore interest at the rate of
8% per annum and were convertible into shares of Common Stock at a conversion
rate of one share of Common Stock for every $8.21822 of principal converted. The
registration rights agreements provided for liquidated damages to accrue at the
rate of 36% per annum of the note principal in the event that the registration
statements to register the underlying shares were not declared effective by the
required deadline.
The
number of shares of Series B Preferred Stock which were issued to Barron
Partners pursuant to the agreement was determined by dividing the aggregate
indebtedness cancelled ($5,055,418) by $8.1822 per share (which was the rate at
which one share of Common Stock was issuable for principal under the convertible
promissory notes). In lieu of issuing Common Stock, the Company and Barron
Partners agreed that Barron Partners would be issued Series B Preferred Stock
(which upon consummation of a 1-for-328.72898 reverse stock split that was
consummated on May 23, 2008 became convertible into Common Stock on a share for
share basis).
On
February 4, 2008, the Board of Directors of Xi’an Tianren declared a cash
dividend of $2,899,855 to its former shareholders. Since Shaanxi Tianren holds a
91.15% interest in Xi’an Tianren, $2,643,218 was paid to Shaanxi Tianren and
$256,637 was paid to its minority interest holders. On the same date, the Board
of Directors of Shaanxi Tianren declared a cash dividend of $4,966,280 to its
shareholders. Pacific Industry Holding Group, Inc. (Pacific”), a Vanuatu
corporation which is a wholly owned subsidiary of the Company, holds a 99%
interest in Shaanxi Tianren. Therefore, $4,916,617 was paid to Pacific and
$49,663 was paid to Shaanxi Tianren’s minority interest holders. The
inter-company dividend was eliminated in the consolidated statement. The
dividend paid to minority interest holders was $306,300.
In May
2008, Pacific erroneously paid $4,916,617 to its former shareholders as the
result of a dividend declaration in February 2008. The monies were then returned
to the Company, without interest, in June 2008. Because the recipients of the
money were directors of the Company and the erroneous dividend payment has been
treated as a loan for accounting purposes, the Company may have inadvertently
violated Section 13(k) of the Exchange Act in connection with such erroneous
dividend payment.
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND
MANAGEMENT
As of
April 30, 2009, the only class of outstanding voting securities of the Company
was the Company’s Common Stock, par value $.01 per share. The Company also has a
class of Series B Convertible Preferred Stock, par value $.001 per share
(“Series B Stock”), but the holders of such class do not have the right to vote
in the election of directors and are thus not considered voting
securities.
The
following table sets forth certain information as of April 30, 2009 with respect
to the beneficial ownership of our Common Stock by (i) any person or group
owning more than 5% of each class of voting securities, (ii) each director,
(iii) each executive officer named in the Summary Compensation Table in the
section entitled “Executive Compensation” below and (iv) all executive officers
and directors as a group.
In
determining the percentage of Common Stock beneficially owned by a person on
April 30, 2009, we divided (a) the number of shares of Common Stock
beneficially owned by such person, by (b) the sum of the total number of shares
of Common Stock deemed outstanding on April 30, 2009 plus the number of shares
of Common Stock beneficially owned by such person which were not outstanding,
but which could be acquired by the person within 60 days after April 30, 2009,
upon the exercise of warrants or the conversion of convertible
securities.
|
Title
of Class
|
Name
and Address of
Beneficial
Owners (1)
(2)
|
Amount
and Nature of
Beneficial
Ownership
|
Percent
of Class
|
|||||||
|
Common
Stock
|
Hongke
Xue (3)
|
17,604,938 | 79.1 | % | ||||||
|
Common
Stock
|
Lin
Bai (4)
|
2,200,617 | 9.9 | % | ||||||
|
Common
Stock
|
Sixiao
An (5)
|
2,200,617 | 9.9 | % | ||||||
|
Common
Stock
|
Yongke
Xue
|
— | — | |||||||
|
Common
Stock
|
Spring
Liu
|
— | — | |||||||
|
Common
Stock
|
Xiaoqin
Yan
|
— | — | |||||||
|
Common
Stock
|
Guolin
Wang
|
— | — | |||||||
|
Common
Stock
|
Robert
B. Fields
|
— | — | |||||||
|
Common
Stock
|
Norman
Ko
|
— | — | |||||||
|
Common
Stock
|
Barron
Partners LP
730
Fifth Avenue, 9th Floor
New
York, New York 10019
|
10,159,265 | (6 | ) | 31.3 | % | ||||
|
Common
Stock
|
Joseph
Emas (7)
1224
Washington Avenue
Miami
Beach, Florida 33139
|
5,113 | * | |||||||
|
Common
Stock
|
All
officers and directors as a group
(six
persons)
|
— | — | |||||||
* Less
than 1%
|
(1)
|
Pursuant to Rule 13d-3 under the
Exchange Act, a person has beneficial ownership of any securities as to
which such person, directly or indirectly, through any contract,
arrangement, undertaking, relationship or otherwise has or shares voting
power and/or investment power or as to which such person has the right to
acquire such voting and/or investment power within 60
days.
|
|
(2)
|
Unless otherwise stated, each
beneficial owner has sole power to vote and dispose of the shares and the
address of such person is c/o the Company, at 16F,
National Development Bank Tower, Gaoxin 2nd Road, Hi-Tech
Industrial Zone, Xi’an, Shaanxi Province, PRC
710075.
|
|
(3)
|
Consists
of 17,604,938 shares owned of record by Fancylight Limited, a British
Virgin Islands company (“Fancylight”). Fancylight and Hongke Xue have
entered into a Call Option Agreement pursuant to which Mr. Xue has the
right to acquire all of such shares. Fancylight and Mr. Xue have also
entered a Voting Trust Agreement, dated as of February 25, 2008, under
which Mr. Xue has been appointed as voting trustee under a voting trust
created with respect to all of such shares. Therefore, Mr. Xue may be
deemed to be the sole beneficial owner of such
shares.
|
|
(4)
|
Consists
of 2,200,617 shares owned by China Shaanxi Tianren Organic Food Holding
Company Limited, as attorney-in-fact for certain persons. China Shaanxi
Tianren Organic Food Holding Company Limited (“Organic”) is a British
Virgin Islands company. Organic and Lin Bai have entered into a Voting
Trust and Escrow Agreement dated as of February 25, 2008 pursuant to which
Lin Bai has been appointed as voting trustee under a voting trust created
with respect to all of such shares. Therefore, Lin Bai may be deemed to be
the sole beneficial owner of such
shares.
|
|
(5)
|
Consists of 2,200,617 shares
owned by Winsun Limited, as attorney-in-fact for certain persons. Winsun
Limited (“Winsun”) is a British Virgin Islands company. Winsun and Sixiao
An have entered into a Voting Trust and Escrow Agreement dated as of
February 25, 2008 pursuant to which Sixiao An has been appointed as voting
trustee under a voting trust created with respect to all of such shares.
Therefore, Sixiao An may be deemed to be the sole beneficial owner of such
shares.
|
|
(6)
|
Consists of (a) 6,794,118 shares
of Common Stock issuable upon exercise of warrants and (b) an aggregate of
3,365,147 shares of Common Stock issuable upon conversion of Series B
Stock. The warrants held by Barron Partners LP became exercisable upon the
effectiveness of a 1-for-328.72898 reverse stock split of the Company’s
Common Stock on May 23, 2008, and the number of shares for which the
warrants are exercisable and the exercise price of the warrants were not
adjusted for such reverse stock
split.
|
|
(7)
|
Consists of 5,000 shares of
Common Stock issuable upon exercise of warrants which were issued on May
23, 2008. Joseph I. Emas is a principal of Joseph I. Emas Law Offices,
which is the record owner of 113 shares of Common Stock. He was a director
of the Company from February 22, 2008 until he resigned on April 7,
2008.
|
EXECUTIVE COMPENSATION
The
Company’s executive officers do not receive any compensation for serving as
executive officer of the Company or Pacific, but, except for the Chief Executive
Officer, are compensated by and through Shaanxi Tianren. The Company’s Chief
Executive Officer, Yongke Xue, has not received any compensation from the
Company or any of its subsidiaries for his services to the Company and its
subsidiaries in the past two years. The following table sets forth information
concerning cash and non-cash compensation paid by Shaanxi Tianren to the
Company’s Chief Executive Officer for each of the two fiscal years ended
December 31, 2007 and December 31, 2008. No executive officer of the Company,
Pacific or Shaanxi Tianren received compensation in excess of $100,000 for
either of those two years.
SUMMARY
COMPENSATION TABLE
|
Name
and
Principal
Position
|
Year
Ended
|
Salary
($)
|
Bonus
($)
|
Stock
Awards
|
Option
Awards
|
Non-Equity
Incentive Plan Compensation ($)
|
Non-Qualified
Deferred Compensation Earnings ($)
|
All
Other Compensation ($)
|
Total
($)
|
|||||||||||
|
Yongke
Xue
|
12/31/2007
|
$
|
0.00
|
—
|
—
|
—
|
—
|
—
|
—
|
$
|
0.00
|
|||||||||
|
CEO
|
12/31/2008
|
$
|
0.00
|
—
|
—
|
—
|
—
|
—
|
—
|
$
|
0.00
|
|||||||||
|
Spring
Liu (1)
|
12/31/2007
|
$
|
0.00
|
—
|
—
|
—
|
—
|
—
|
—
|
$
|
0.00
|
|||||||||
|
CFO
|
12/31/2007
|
$
|
58,192.26
|
—
|
—
|
—
|
—
|
—
|
—
|
$
|
58,192.26
|
|||||||||
(1) Ms.
Liu was hired as an officer of the Company in April 2008.
Employment
Agreements
We
do not currently have an employment agreement with any of our executive
officers.
Options
Grants in Fiscal Year 2008
Currently, we do not have any stock option plans for our directors, officers or
employees and there were no outstanding options held by any of our directors,
executive officers or employees at December 31, 2009 or at April 30,
2009.
DIRECTORS’
COMPENSATION
The
Company’s directors did not receive compensation for their service on the Board
of Directors for the fiscal years ended December 31, 2006 and 2007.
Starting in fiscal 2008, we began (i) paying each of our non-employee directors,
other than non-employee directors who reside in China, an annual fee of
$25,000, (ii) reimbursing our directors for actual, reasonable and customary
expenses incurred in connection with the performance of their duties as board
members, and (iii) paying the Chairman of our Audit Committee a fee of $25,000
for his or her service as Chairman. The following table sets forth
information concerning cash and non-cash compensation paid by the Company to our
directors during fiscal 2008.
|
Name
|
Fees
Earned or Paid in Cash ($)(1)
|
Stock
Awards ($)
|
Option
Awards ($)
|
Non-equity
Incentive Plan Compensation ($)
|
Change
in Pension Value and Nonqualified Deferred Compensation Earnings
($)
|
All
Other Compensation ($)
|
Total
($)
|
|||||||||||||||||||||
|
Yongke
Xue
|
$ | — | — | — | — | — | — | $ | — | |||||||||||||||||||
|
Xiaoqin
Yan
|
$ | — | — | — | — | — | — | $ | — | |||||||||||||||||||
|
Guolin
Wang(2)
|
$ | — | — | — | — | — | — | $ | — | |||||||||||||||||||
|
Norman
Ko
|
$ | 25,000 | — | — | — | — | — | $ | 25,000 | |||||||||||||||||||
|
Robert
B. Fields
|
$ | 25,000 | — | — | — | — | — | $ | 25,000 | |||||||||||||||||||
|
(1)
|
Cash
compensation for Board and committee meeting attendance and service as a
committee chairman.
|
|
|
(2)
|
Mr.
Wang is a PRC resident and the Company’s policy is not to provide cash
compensation for director services to non-employee directors who are PRC
residents. The Company believes that this is a common practice for
companies with their primary operations in the
PRC.
|
COMPENSATION DISCUSSION
AND ANALYSIS
The
Compensation Committee
Our Compensation Committee
was established in April 2008. It is responsible for reviewing and approving
corporate goals and objectives relating to the compensation of the Chief
Executive Officer, and reviews goals and objectives of other executive
officers. It oversees the compensation that is paid to our executive officers to
ensure that their compensation is fair, reasonable and competitive. In the event
of newly created positions or specific retention concerns, industry market
research for salary and benefits would be used to ensure fair compensation
consistency. The Compensation Committee also establishes the
performance criteria (including both long-term and short-term goals) to be
considered in light of those goals and objectives, and evaluates the
performance of the executives.
Compensation Objectives
The
Company operates in a highly competitive and rapidly changing industry. The key
objectives of the Company’s executive compensation programs are to:
|
·
|
attract,
motivate and retain executives who drive the Company’s success and
industry leadership;
|
|
·
|
provide
each executive, from Vice-President to Chief Executive Officer, with a
base salary based on the market value of that role, and the individual’s
demonstrated ability to perform that
role.
|
The
compensation to executive officers only contains base salary for fiscal year
2008. The Compensation Committee is considering establishing criteria
for calculating and paying performance-based bonuses to our executive officers
and/or long-term incentive compensation in the form of stock
options.
What
Our Compensation Program is Designed to Reward
Our
compensation program is designed to reward each individual named executive
officer’s contribution to the
advancement of the Company’s overall performance and execution of our goals,
ideas and objectives. It is designed to reward and encourage
exceptional performance at the individual level in the areas of organization,
creativity and responsibility while supporting the Company’s core values and
ambitions. This in turn aligns the interest of our executive officers
with the interests of our shareholders, and thus with the interests of the
Company.
Determining
Executive Compensation
The
Compensation Committee reviews and approves the compensation program for
executive officers annually after the close of each fiscal year. Reviewing the
compensation program at such time allows the Compensation Committee to consider
the overall performance of the past fiscal year and the financial and operating
plans for the upcoming fiscal year in determining the compensation program for
the upcoming fiscal year.
The
Company’s compensation program only contains base annual salary in fiscal year
2008.
A named
executive officer’s base salary is determined by an assessment of his sustained
performance against individual job responsibilities, including, where
appropriate, the impact of his performance on our business results, current
salary in relation to the salary range designated for the job, experience and
mastery, and potential for advancement. The Compensation Committee
also annually reviews market compensation levels with comparable jobs in the
industry to determine whether the total compensation for our officers remains in
the targeted median pay range. The Company did not hire any compensation
consultants in fiscal year 2008.
None of
our executive officers had annual compensation in excess of $100,000 for fiscal
years 2008 and 2007.
Role
of Executive Officers in Determining Executive Compensation
The
Compensation Committee determines the compensation for the Chief Executive
Officer, which is based on various factors, such as level of responsibility and
contributions to the performance of the Company. The Chief Executive Officer
recommends the compensation for the Company's executive officers (other than the
compensation of the Chief Executive Officer) to the Compensation Committee. The
Compensation Committee reviews the recommendations made by the Chief Executive
Officer and determines the compensation of the Chief Executive Officer and the
other executive officers.
Compensation
of Non-Employee Directors.
The
annual compensation for our non-employee directors in the United States is
$25,000. In addition, all non-employee directors are reimbursed for reasonable
expenses to attend Board or committee meetings.
COMPENSATION
COMMITTEE REPORT
The
Compensation Committee of the Board of Directors has reviewed and discussed with
management the Compensation Discussion and Analysis included in this proxy
statement. Based on this review and discussion, the Committee recommended to the
Board of Directors that the Compensation Discussion and Analysis be included in
the Company’s Proxy Statement for this Annual Meeting of Shareholders.
|
COMPENSATION
COMMITTEE
Guolin
Wang
Norman
Ko
Yongke
Xue
Xiaoqing
Yan
|
REPORT OF THE AUDIT COMMITTEE
Our Audit
Committee is comprised of three independent directors and operates under a
written charter approved by the Board of Directors. The new charter was adopted
on April 13, 2009. Our management is responsible for the internal accounting
controls and the financial reporting process, and the preparation of financial
statements in accordance with generally accepted accounting principles. Our
independent registered public accounting firm, Child, Van Wagoner &
Bradshaw, PLLC, is responsible for performing an independent audit of our
consolidated financial statements in accordance with the standards of the Public
Company Accounting Oversight Board (United States) and performing timely reviews
of the quarterly financial statements in accordance with SAS No. 100.
During fiscal year 2008, the Audit Committee fulfilled its duties and
responsibilities as outlined in its charter. The Audit Committee has reviewed
and discussed the Company’s audited consolidated financial statements and
related footnotes for fiscal year 2008, and the independent auditor’s report on
those financial statements, with the Company’s management and independent
auditor. Management represented to the Audit Committee that the Company’s
financial statements were prepared in accordance with accounting principles
generally accepted in the United States of America. The Audit Committee has
discussed with Child, Van Wagoner & Bradshaw, PLLC the matters required to
be discussed with the Audit Committee by AICPA Statement on Auditing Standards
No. 61, as amended, “Communication with Audit Committees.” The Audit
Committee’s review included a discussion with management and the independent
auditor of the quality (not merely the acceptability) of the Company’s
accounting principles, the reasonableness of significant estimates and
judgments, and the disclosures in the Company’s financial statements, including
the disclosures relating to critical accounting policies.
The Audit
Committee recognizes the importance of maintaining the independence of the
Company’s independent auditor, both in fact and appearance. The Audit Committee
has evaluated Child, Van Wagoner & Bradshaw, PLLC’s qualifications,
performance, and independence, including that of the lead audit partner, and has
concluded that the independent registered public accounting firm is independent
from us and our management. In addition, Child, Van Wagoner & Bradshaw,
PLLC has provided the Audit Committee with the letter required by the
Independence Standards Board Standard No. 1, “Independence Discussions with
Audit Committees,” and the Audit Committee has engaged in dialogue with Child,
Van Wagoner & Bradshaw, PLLC regarding their independence.
The Audit
Committee discussed with our independent registered public accounting firm the
overall scope and plans for their audit. The Audit Committee met with the
independent registered public accounting firm, with and without management
present, to discuss the results of their examination, the evaluations of our
internal controls, and the overall quality of our financial
reporting.
Based on
the Audit Committee’s discussions with management and the independent registered
public accounting firm, and the Audit Committee’s review of the representations
of management and the independent registered public accounting firm, the Audit
Committee recommended to the Board of Directors of the Company that the audited
financial statements for the fiscal year 2008 be included in the Company’s
Annual Report on Form 10-K.
Dated:
April 30, 2009
THE AUDIT
COMMITTEE
Guolin
Wang
Norman
Ko
Robert B.
Fields
REQUIREMENTS,
INCLUDING DEADLINES, FOR SUBMISSION OF PROXY PROPOSALS,
NOMINATION OF DIRECTORS AND OTHER BUSINESS OF SHAREHOLDERS
To be
considered for inclusion in our proxy solicitation materials for the next Annual
Meeting of Shareholders, which the Company intends to hold in the second quarter
of 2010 (the “Next Annual Meeting”), a stockholder proposal under SEC
Rule 14a-8 must be received by our Corporate Secretary at our principal
executive offices no later than December 31, 2009.
The
independent directors will consider candidates for election as a director
recommended by any stockholder of the Corporation who has held the Corporation’s
Common Stock for at least one year and who holds a minimum of 1% of the
Company’s outstanding shares. The recommending stockholder must submit the
following:
|
·
|
a
detailed resume of the recommended
candidate;
|
|
·
|
an
explanation of the reasons why the stockholder believes the recommended
candidate is qualified for service on the Corporation’s
Board;
|
|
·
|
such
other information that would be required by the rules of the SEC to be
included in a proxy statement;
|
|
·
|
the
written consent of the recommended
candidate;
|
|
·
|
a
description of any arrangements or undertakings between the stockholder
and the recommended candidate regarding the nomination;
and
|
|
·
|
proof
of the recommending stockholder’s stock holdings in the
Corporation.
|
Recommendations
from stockholders which are received after the deadline set forth in the
Company’s most recent proxy statement, for a stockholder proposal to be
considered for inclusion in the Corporation’s proxy statement for the next
Annual Meeting, likely will not be considered timely for consideration by the
Committee for the following year’s Annual Meeting.
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
On December 15, 2008, Child, Van
Wagoner & Bradshaw, PLLC was reappointed as the principal accountant to
audit the Company’s financial statements, and has audited such statements for
each of fiscal years 2008 and 2007.
The following table shows the fees
that we paid or accrued for audit and other services provided by Child, Van
Wagoner & Bradshaw, PLLC for fiscal years 2008 and 2007. All of the services
described in the following fee table were approved in conformity with the Audit
Committee’s pre-approval process.
|
2008
|
2007
|
|||||||
|
Audit
Fees
|
$ | 99,000 | $ | 102,121 | ||||
|
All
Other Fees
|
24,000 | -- | ||||||
| $ | 123,000 | $ | 102,121 | |||||
Audit
Fees
The amounts set forth opposite “Audit
Fees” above reflect the aggregate fees billed by Child, Van Wagoner &
Bradshaw, PLLC for professional services rendered for the audit of
the Company’s fiscal 2008 and fiscal 2007 annual financial statements and for
the review of the financial statements included in the Company’s quarterly
reports during such periods.
Tax Fees
The amounts set forth opposite “Tax
Fees” above reflect the aggregate fees billed for fiscal 2008 and 2007 for
professional services rendered for tax compliance and return preparation. The
compliance and return preparation services consisted of the preparation of
original and amended tax returns and support during the income tax audit or
inquiries.
All Other
Fees
The
amounts set forth opposite “All Other fees” above include $24,000 paid to Child,
Van Wagoner & Bradshaw, PLLC for the consent to the incorporation by
reference of their audit report dated May 15, 2008, in the Company’s
Registration Statement on Form S-1, including all pre-effective amendments
thereto.
The Audit Committee’s policy is to
pre-approve all audit services and all non-audit services that our independent
accountants are permitted to perform for us under applicable federal securities
regulations. The Audit Committee’s policy utilizes an annual review and general
pre-approval of certain categories of specified services that may be provided by
the independent accountant, up to pre-determined fee levels. Any proposed
services not qualifying as a pre-approved specified service, and pre-approved
services exceeding the pre-determined fee levels, require further specific
pre-approval by the Audit Committee. The Audit Committee has delegated to the
Chairman of the Audit Committee the authority to pre-approve audit and non-audit
services proposed to be performed by the independent accountants. Our Audit
Committee was established in April 2008. Therefore, only 80% of the services
provided by Child, Van Wagoner & Bradshaw, PLLC in fiscal 2008 were
pre-approved by the Audit Committee.
ADDITIONAL
MEETING INFORMATION
Proxy
Solicitation
The cost
of soliciting proxies for the Annual Meeting will be borne by the Company. In
addition, the Company will reimburse brokerage firms and other persons
representing beneficial owners of shares for their expenses in forwarding
solicitation material to such beneficial owners. Directors, officers and regular
employees of the Company may, for no additional compensation, also solicit
proxies personally or by telephone, electronic transmission, telegram or special
letter.
Annual
Report
The
Company’s Annual Report to Shareholders for fiscal year 2008 is being mailed
with this Proxy Statement to shareholders entitled to notice of the Annual
Meeting. The Annual Report includes the consolidated financial statements,
unaudited selected consolidated financial data and management’s discussion and
analysis of financial condition and results of operations.
Upon the
written request of any shareholder, the Company will provide, without charge, a
copy of the Company’s Annual Report on Form 10-K filed with the Commission for
the fiscal year ended December 31, 2008. This request should be
directed to the Corporate Secretary, 16F, National Development Bank Building,
No.2, Gaoxin 1st RD,
Hi-Tech Zone, Xi’an, Shaanxi, China, 710075.
OTHER
MATTERS
The
shareholders and any other persons who would like to communicate with the Board
can access the Company’s website, www.skypeoplefruitjuice.com, and fill in the
contact form for any enquiries or information. The form will be sent directly to
the Secretary and the communications for specified individual directors of the
Board will be given to them personally by the Secretary. In addition, the
contact number is listed on the website and messages will be passed to the Board
accordingly.
At this
time, the Board knows of no other business that will come before the Annual
Meeting. However, if any other matters properly come before the Annual Meeting,
the persons named as proxies will vote on them in accordance with their best
judgment.
PROXY
SKYPEOPLE
FRUIT JUICE, INC.
This
Proxy is Solicited on Behalf of the Board of Directors of the
Company
The
undersigned hereby appoints Yongke Xue and Spring Liu or either of them as the
undersigned’s true and lawful agents and proxies with full power of substitution
to represent the undersigned at the Annual Meeting of Shareholders of SkyPeople
Fruit Juice, Inc. to be held at its principal executive offices at 16F, National
Development Bank Building, No.2, Gaoxin 1st RD, Hi-Tech Zone, Xi’an, Shaanxi,
China, on Monday, June 8, 2009 at 10:00 A.M., and at any adjournments thereof,
and to vote all shares that the undersigned is entitled to vote thereat, on all
matters coming before said meeting. The undersigned directs that the
undersigned’s proxy be voted as follows:
1.
ELECTION OF DIRECTORS:
|
|
o FOR
all nominees
o WITHHOLD
AUTHORITY FOR ALL NOMINEES
o
FOR ALL EXCEPT (See instructions
below)
|
GuoLin
Wang, Norman Ko, Robert B. Fields, Xiaoqin Wang, Yongke
Xue
INSTRUCTIONS: To withhold authority to
vote for any individual nominee(s), mark “FOR ALL EXCEPT” and fill in the circle
next to the name of each nominee for whom you wish to withhold your votes, as
shown here: ●
2.
In their discretion, the Proxies are authorized to vote upon such other matters
as may properly come before the Annual Meeting and any adjournment
thereof.
THIS
PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE
UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE
VOTED “FOR” THE NOMINEES FOR DIRECTORS LISTED IN ITEM 1.
|
Dated:
|
|
|
|
|
||
|
Signature
|
||
|
Signature,
if held jointly
|
||
|
Title
(if applicable)
|
||
|
Please
date, sign exactly as your name appears on this Proxy and promptly return
in the enclosed envelope. In the case of joint ownership, each
joint owner must sign. When signing as guardian, executor,
administrator, attorney, trustee, custodian, or in any other similar
capacity, please give full title. If a corporation, sign in
full corporate name by president or other authorized officer, giving
title, and affix corporate seal. If a partnership, sign in
partnership name by authorized
person.
|
||
Appendix
A
COMPENSATION
COMMITTEE CHARTER
of
the Compensation Committee
of
SkyPeople Fruit Juice, Inc.
|
I.
|
Purpose
|
The
purpose of the Compensation Committee (the “Committee”)
of the Board of the Company is to discharge the Board of Directors'
responsibilities relating to compensation of the Company's executive officers
and oversight of plans for executive officer development and succession, to
fulfill the responsibilities set forth in this Charter, and to advise the Board
on the administration of the Company’s executive compensation and benefits
programs.
|
II.
|
Membership
|
The
Compensation Committee shall be comprised of three or more Directors, as
determined by the Board, the majority of whom (i) satisfies the independence
requirements of the principal stock exchange upon which the Company’s common
stock is traded, (ii) is a “non-employee Director” within the meaning of Rule
16b-3 of the Securities Exchange Act of 1934, as amended (the “1934
Act”), and (iii) is an “outside Director” under the regulations
promulgated under Section 162(m) of the Internal Revenue Code of 1986, as
amended (the “Code”).
The
members of the Committee, including the Chair of the Committee, shall be
appointed by the Board annually and serve until their successors shall be duly
elected and qualified.
|
III.
|
Duties
and Responsibilities
|
In
discharging its responsibilities for management organization, performance,
compensation and succession, the Committee shall:
|
1.
|
Consider
and authorize the compensation philosophy for the Company's
personnel.
|
|
2.
|
Monitor
and evaluate matters relating to the compensation and benefits structure
of the Company as the Committee deems
appropriate.
|
|
3.
|
Review
and approve corporate goals and objectives relevant to the Chief Executive
Officer and other executive officers’ compensation, evaluate the Chief
Executive Officer and other executive officers performance in light of
those goals and objectives and, either as a committee or together with
other independent Directors (as directed by the Board of Directors),
determine and approve the Chief Executive Officer and other executive
officers’ compensation based on this
evaluation.
|
|
4.
|
At
least once each calendar year, review and approve all compensation for all
the non-employee Directors and other employees of the Company or its
subsidiaries with a base salary greater than or equal to $100,000. No
member of the Committee will act to fix his or her own compensation except
for uniform compensation to Directors for their services as a
Director.
|
|
5.
|
With
the input of the Chief Executive Officer, at least once each calendar
year, review the performance of principal senior
executives.
|
|
6.
|
Review
the terms of the Company’s incentive compensation plans, equity-based
plans, retirement plans, deferred compensation plans and welfare benefit
plans. The Committee shall administer such plans, including determining
any incentive or equity-based awards to be granted to members of senior
management under any such plan.
|
|
7.
|
Review
and approve executive officer and Director indemnification and insurance
matters.
|
|
8.
|
Review
and discuss the Compensation Discussion and Analysis section proposed for
inclusion in the Company’s Annual Report on Form 10-K and annual proxy
statement with management and recommend to the Board whether such section
should be so included. In that connection, the Committee shall also review
the related tabular and other disclosures about Director and executive
compensation proposed by management for inclusion in such Annual Report
and proxy statement.
|
|
9.
|
Prepare
and approve the Committee report to be included as part of the Company’s
annual proxy statement.
|
|
10.
|
Evaluate
its own performance on an annual basis and report on such performance to
the Board.
|
|
11.
|
Review
and reassess this Charter at least once each fiscal year and submit any
recommended changes to the Board for its
consideration.
|
|
12.
|
Have
such other powers and functions as may be assigned to it by the Board from
time to time.
|
The
Committee may delegate authority granted hereunder, to the extent permitted
under applicable law, to a subcommittee of the Committee, management or any
executive officer in order to ensure compliance with legal and regulatory
obligations, to ensure timely decision-making or for other purposes. Delegation
to executive officers or management may only occur with respect to matters
affecting employees other than the person to whom authority is delegated and
other than executive officers.
|
I.
|
Meetings
|
The
Committee shall meet on the call of its Chairman. The Chairman shall preside
over all regular sessions of the Committee and set the agendas for Committee
meetings. The Chairman shall report regularly on the Committee's activities and
actions to the Board, including at each Board meeting that shortly follows any
Committee meeting. The Committee shall keep regular minutes of its meetings and
report the same to the Board from time to time and upon request.
|
II.
|
Committee
Resources and Advisors
|
The
Committee shall have the authority, at the expense of the Company, to retain
outside compensation consultants, legal counsel or other independent third-party
experts, as it shall deem necessary to carry out its duties, without Board or
management approval.
Appendix
B
SKYPEOPLE FRUIT JUICE, INC.
AUDIT COMMITTEE CHARTER
|
I.
|
Purpose
and Scope
|
The Audit
Committee is a standing committee of the Board of Directors. The primary
function of the Audit Committee (the "Committee") is to oversee the accounting
and financial reporting processes of SkyPeople (the "Company”), and the audits
of the financial statements of the Company and to exercise the responsibilities
and duties set forth below, including, but not limited to:
|
·
|
assisting
the Board of Directors in fulfilling its
responsibilities by reviewing: (i) the financial reports provided by
the Company to
the Securities and
Exchange Commission ("SEC"), the
Company’s stockholders or to the general public, and (ii) the
Company’s
internal financial and accounting controls;
|
|
·
|
recommending, establishing
and monitoring procedures designed to
improve
the quality and reliability of
the disclosure of the Company's financial condition
and results of operations;
|
|
·
|
overseeing the
appointment, compensation, and evaluation of the qualifications and
independence of the Company’s independent
auditors;
|
|
·
|
overseeing
the Company’s compliance with legal and regulatory
requirements;
|
|
·
|
overseeing
the adequacy of the Company’s internal controls and procedures to promote
compliance with accounting standards and applicable laws and
regulations;
|
|
·
|
engaging advisors
as necessary; and
|
|
·
|
determining
the funding from the Company that is necessary or appropriate to carry out
the Committee's duties.
|
|
II.
|
Membership
|
The Audit
Committee shall consist of no fewer than three members, none of whom shall be an
employee of the Company and each of whom shall be an independent
Director. For purposes of the Audit Committee, an independent
Director shall be one who meets the independence requirements of the principal
stock exchange upon which the Company’s common stock is traded and the
provisions of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the rules promulgated by the Securities and Exchange Commission (the
“SEC”) promulgated thereunder, each as in effect from time to time. At least one
member shall be a “financial expert” as such term is defined by regulations of
the SEC.
Each
member shall be able to read and understand fundamental financial statements,
including a balance sheet, income statement and cash flow statement, and not
have participated in the preparation of the financial statements of the Company
or any current subsidiary of the Company at any time during the past three
years. At least one member of the Audit Committee shall have had past
employment experience or background which results in that member’s financial
sophistication, including having been a Chief Executive Officer, Chief Financial
Officer or other senior officer with financial oversight
responsibilities.
Members
shall be selected and vacancies shall be filled by the Board of
Directors. The members shall designate one member as the Chairperson
of the Audit Committee. A member may only be removed by a vote of the
majority of the Board of Directors.
The
Committee shall meet at least four times annually, or more frequently as the
Committee may determine. Members of management, the Company’s independent
auditors and others shall attend meetings to provide pertinent information as
necessary. The Audit Committee may meet via telephone conference calls. Minutes
of each meeting shall be prepared and the Committee shall report regularly to
the Board as to its activities.
|
III.
|
Duties
and Responsibilities
|
The
Committee shall have and may exercise the powers of the Board in matters
relating to the following duties and responsibilities, to the fullest extent
permitted by law:
Documents/Reports
Review
|
1.
|
The
Committee shall review and assess the adequacy of this Charter at least
annually.
|
|
2.
|
The
Committee shall review and discuss with representatives of management and
representatives of the independent accounting firm the Company's quarterly
and annual financial statements prior to any filing with the SEC or any
release to the public or investors.
|
|
3.
|
The
Committee shall recommend to the Board, if appropriate, that the Company’s
annual audited financial statements be included in the Company’s annual
report on Form 10-K for filing with the
SEC.
|
Independent Accounting
Firm
|
4.
|
The
Committee shall be directly responsible for the appointment, compensation,
retention and oversight of the work of the Company’s independent
auditors. The authority of the Committee shall include ultimate
authority to approve all audit engagement fees and terms. The
Committee shall have the ultimate authority and responsibility to
appoint, evaluate and, when warranted, replace such independent accounting
firm (or to recommend such replacement for shareholder approval in any
proxy statement).
|
|
5.
|
The
Committee shall resolve any disagreements between management and the
independent auditors as to financial reporting
matters.
|
|
6.
|
The
independent auditors shall report directly to the Committee on matters
pertaining to the work performed during its engagement and on matters
required by applicable Regulatory Body rules and
regulations.
|
|
7.
|
The
Committee shall take such action as it reasonably believes is necessary to
confirm and assure the independence of the independent
accountant. In that regard, the Audit Committee is responsible
for actively engaging in dialogue with the independent accountant with
respect to any disclosed relationships or services that may impact on the
objectivity and independence of the independent accountant and for taking,
or recommending that the Board of Directors take, appropriate action
to oversee the independence of the independent
accountant.
|
|
8.
|
The
Committee shall review the annual audit plan of the outside auditors and
evaluate their performance.
|
|
9.
|
The
Committee shall evaluate the performance of the independent auditors and
consider the discharge of the independent auditors when circumstances
warrant. The independent auditors shall be ultimately accountable to the
Committee.
|
|
10.
|
The
Committee shall oversee the rotation of the lead (or coordinating) audit
partner having primary responsibility for the audit, and the audit partner
responsible for reviewing the audit at least once every five years, and
oversee the rotation of other audit partners in accordance with applicable
rules and regulations.
|
|
11.
|
The
Committee shall approve in advance all audit and non-audit services to be
performed by the independent
auditors.
|
|
12.
|
The
Committee shall have the authority to oversee and determine the
compensation of any independent auditors engaged by the Company and shall
notify the Company of any anticipated funding needs of the
Committee.
|
|
13.
|
The
Committee shall consider and review with the Company’s independent
auditors and management any significant findings and any review or audit
problems or difficulties encountered in the course of the review or audit
work during the quarterly review and year-end audit, and management’s
responses to them.
|
|
14.
|
The
Committee shall annually review the qualifications, performance and
independence of the independent auditors and the senior members of the
independents auditors’ audit engagement
team.
|
|
15.
|
The
Committee shall discuss with management and the independent auditors any
accounting adjustments that were noted or proposed by the independent
auditors, but not adopted or
reflected.
|
|
16.
|
The
Committee shall annually obtain and review a report by the independent
auditors describing (i) the independent auditors’ internal quality-control
procedures; and (ii) any material issues raised by the most recent
internal quality-control review or peer review of the audit firm, or by
any inquiry or investigation by governmental or professional authorities,
within the preceding five years, respecting one or more independent audits
carried out by the audit firm, and any steps taken to deal with such
issues.
|
Internal
Controls
|
17.
|
The
Committee shall review the responsibilities, budget and staffing of any
internal auditors.
|
|
18.
|
The
Committee shall review the reports of the Chief Executive Officer and
Chief Financial Officer (in connection with their required certifications
for the Company’s filings with the SEC) regarding any significant
deficiencies or material weaknesses in the design or operation of internal
controls, and any fraud that involves management or other employees who
have a significant role in the Company’s internal
controls.
|
Financial Reporting
Processes
|
19.
|
The
Committee shall consult with the Company’s independent auditors concerning
the completeness and accuracy of the Company’s financial
statements.
|
|
20.
|
The
Committee shall review disclosures made to the Committee by the Company’s
Chief Executive Officer and Chief Financial Officer in connection with
their certifications of the Company's Annual Reports on Form 10-K and
Quarterly Reports on Form 10-Q, including disclosures concerning (a)
evaluations of the design and operation of the Company’s internal control
over financial reporting, (b) significant deficiencies and material
weaknesses in the design and operation of the Company's internal control
over financial reporting which are reasonably likely
to adversely affect the Company's ability to
record, process, summarize,
and report financial information, and
(c) any fraud, whether or not material, that
involves management or other employees who have a significant
role in the Company's internal controls. The Committee shall
direct the actions to be taken and/or make recommendations to the Board of
Directors of actions to be taken to the extent such disclosures indicate
the finding of any significant deficiencies in internal controls or
fraud.
|
|
21.
|
The
Committee shall review changes to the Company’s accounting principles as
recommended by the outside auditors or
management.
|
|
22.
|
The
Committee shall review periodically with the Company’s management, general
counsel and outside auditors, legal and regulatory matters and accounting
initiatives that could have a significant effect on the Company’s
financial statements.
|
Reporting
|
23.
|
The
Committee shall prepare, in accordance with the rules of the SEC as
modified or supplemented from time to time, a written report of the
Committee to be included in the Company's annual proxy statement for each
annual meeting of stockholders.
|
|
24.
|
To
the extent required by any Regulatory Body, the Committee shall instruct
the Company's management to disclose in its annual proxy statement for
each annual meeting of stockholders, Annual Report on Form 10-K and
Quarterly Report on Form 10-Q, the approval by the Committee of any
non-audit services performed by the independent accounting firm, and
review the substance of any such disclosure and the considerations
relating to the compatibility of such services with
maintaining the independence of the accounting
firm.
|
Other
|
25.
|
The
Committee is responsible for reviewing existing policies concerning
related party transactions and conflicts of interest between Board members
or senior management, on the one hand, and the Company, on the other hand,
and recommend any changes to such policies. Attached hereto as Schedule A
is the Company’s Statement of Policies and Procedures with Respect to
Related Party Transactions which was approved by the Board of Directors of
the Company on September 30, 2008 and is currently in
effect
|
|
26.
|
The
Committee must perform an annual
self-evaluation.
|
|
27.
|
The
Committee shall investigate any other matter brought to its attention
within the scope of its duties which it deems appropriate for
investigation.
|
IV. Committee
Resources and Advisors
The
Committee shall have the authority to retain, at the expense of the Company,
such independent legal and other advisors as it shall deem necessary to carry
out its duties, without Board or management approval.
The
Company shall determine the funding necessary for: (i) compensation to any
independent accounting firm engaged for the purpose of preparing or issuing an
audit report or performing other audit, review or attest services for the
Company; (ii) compensation to any outside advisors engaged by the Committee as
provided above; and (iii) ordinary administrative expenses of the Committee that
are necessary or appropriate in carrying out the Committee's
duties.
V. Limitation
of Committee’s Role
While the
Committee has the responsibilities and powers set forth in this Charter, it is
not the duty of the Committee to plan or conduct audits or to determine that the
Company's financial statements are complete and accurate and are in accordance
with generally accepted accounting
principles.