<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 31, 1997
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIGMAR, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 31-1445779
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
9711 SPORTSMAN CLUB ROAD
JOHNSTOWN, OHIO 43031-9141
(614) 966-5800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MR. MICHAEL K. MEDORS
SECRETARY AND TREASURER
BIGMAR, INC.
9711 SPORTSMAN CLUB ROAD
JOHNSTOWN, OHIO 43031-9141
(614) 966-5800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO: STEVEN R. KERBER, ESQ.
BRICKER & ECKLER LLP
100 SOUTH THIRD STREET
COLUMBUS, OHIO 43215-4291
(614) 227-2300
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.
[__]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SHARES TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
---------------------- ------------- -------------- ----------- ------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par 761,905 $3.375 $2,571,430 758.57
value
</TABLE>
(1) In accordance with Rule 416 under the Securities Act of 1933, Common
Stock offered hereby shall also be deemed to cover additional securities to
be offered or issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(g) and 457(c), based on the average
of the high and low reported price of the Company's Common Stock on
December 30, 1997.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED DECEMBER 31, 1997
761,905 SHARES
BIGMAR, INC.
COMMON STOCK
$.001 PAR VALUE
All of the shares of the Common Stock, par value $0.001 per share (the "Common
Stock"), of Bigmar, Inc., a Delaware corporation ("Bigmar", the "Company" or the
"Registrant"), offered hereby (the "Shares") are issuable by the Company upon
the conversion of a convertible promissory note (the "Note"). All of the Shares
are being offered by the noteholder who is named herein under "Selling
Stockholder" or by pledgees, donees, transferees or other successors in interest
and permitted assigns of such selling stockholder (the "Selling Stockholder").
The Company will not receive any of the proceeds from the sale of the Shares;
however, in consideration of issuing the Note, the Company received net proceeds
of $3,670,000 which was used for working capital and other general corporate
purposes.
The Company has not made any underwriting arrangements with respect to the
Shares. The Company's Common Stock is quoted on the Nasdaq SmallCap Market
under the symbol "BGMR" and on the Boston Stock Exchange under the symbol "BGM".
On December 30, 1997, the last sale price of the Company's Common Stock as
reported by Nasdaq was $3.375 per share.
This Prospectus is to be used in connection with the sale of the Shares from
time to time by the Selling Stockholder. The Shares may be sold from time to
time by the Selling Stockholder, directly or through underwriters, dealers or
agents, in market transactions, including block trades or ordinary brokers
transactions or in privately-negotiated transactions. The price at which any of
the Shares may be sold, and the commissions, if any, paid in connection with any
sale, may be privately negotiated, may be based on then prevailing market prices
and may vary from transaction to transaction and as a result are not currently
known. This Prospectus may be used by the Selling Stockholder or by any
broker-dealer who may participate in sales of securities covered hereby. See
"Plan of Distribution and Offering Price."
The Company will pay certain of the legal and other expenses of this offering
(estimated to be $_______________), except that the Selling Stockholder will
bear the cost of any brokerage commissions or discounts incurred in connection
with the sale of its Shares.
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
(SEE "RISK FACTORS" BEGINNING ON PAGE ____.)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is December __, 1997.
<PAGE>
No dealer, salesperson or other person has been authorized to give any
information or to make any representations not contained, or incorporated by
reference, in this Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company
or the Selling Stockholder. This Prospectus does not constitute an offer to
sell or the solicitation of any offer to buy any of the securities offered
hereby in any jurisdiction to any person to whom it is unlawful to make such
offer in such jurisdiction. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, create any implication that
the information herein is correct as of any time subsequent to the date hereof
or that there has been no change in the affairs of the Company since such date.
Unless otherwise indicated, all information in this Prospectus assumes that the
noteholder has fully converted the Note into Shares.
<PAGE>
RISK FACTORS
In addition to the other information in this Prospectus, the following factors
should be carefully considered in evaluating an investment in the Shares offered
by this Prospectus:
DEVELOPMENT STAGE; HISTORY OF LOSSES. The Company was incorporated in
September 1995 and was a development stage company until it effectuated a
stock-for-stock exchange on April 9, 1996 whereby Bigmar Pharmaceuticals SA
("Bigmar Pharmaceuticals") and Bioren SA ("Bioren") became subsidiaries of the
Company. In addition, the Company and its subsidiaries have incurred net losses
in the past. For the years ended December 31, 1993 and 1994, Bioren incurred net
losses, before extraordinary item, of approximately $1,804,000 and $2,984,000,
respectively, and for the year ended December 31, 1995, the Company (which
includes the results of operations of Bioren from July 1, 1995) incurred a net
loss of approximately $97,000. For the year ended December 31, 1996, the
Company incurred a net loss of $1,639,544. For the nine months ended September
30, 1997, the Company incurred a net loss of $5,368,727. There can be no
assurance that the Company's operations will achieve profitability at any time
in the future or, if achieved, that such profitability will be sustained.
EXPANSION OF OFFERED PRODUCTS; LIMITED EXPERIENCE. The Company's business
strategy relies primarily on its success in manufacturing and marketing
oncological products, an area in which the Company has limited experience. The
success of its business strategy should be considered in light of the risks,
expenses and difficulties frequently encountered in entering into industries
characterized by intense competition; completing product development; obtaining
regulatory approvals in certain European countries, the United States and
elsewhere for its products; gaining market acceptance of the Company's
products; entering into new collaborative agreements and maintaining existing
collaborative arrangements. There can be no assurance that the Company will be
able to manufacture or market its products and proposed products, maintain or
expand its market share or achieve commercial revenues from its products and
proposed products in the future. In addition, aspects of the Company's business
strategy can only be implemented if the Company's manufacturing facility in
Barbengo, Switzerland ("Bigmar Facility") becomes fully operational and all
necessary regulatory approvals are obtained. Some of the foregoing factors are
not within the Company's control and there can be no assurance that the Company
will be able to implement its business strategy, that the facility will become
operational (including obtaining regulatory approvals) or that its business
strategy will result in profitability.
RELIANCE ON PLM. In March 1995, Bioren entered into an agreement with PLM
Langeskov A/S ("PLM") pursuant to which Bioren acquired the exclusive right to
purchase intravenous solution containers from PLM and to package and distribute
intravenous infusion solutions ("IV Solutions") in these containers in
Switzerland and Lichtenstein ("PLM Agreement"). Under the terms of the PLM
Agreement, PLM is entitled to terminate the exclusivity portion of the agreement
if, among other things, Bioren does not purchase a minimum number of intravenous
solution containers each year. The PLM Agreement expires in the year 2005,
unless it is earlier terminated. In addition, the PLM Agreement may be
terminated by either party upon the occurrence of certain specified conditions,
including if the products or their production infringe, or are alleged to
infringe, the intellectual property rights of third parties. The termination of
the PLM Agreement would have a material adverse effect on the Company.
RELIANCE ON NETWORK OF PHARMACEUTICAL COMPANIES FOR MARKETING; DEPENDENCE
ON ADDITIONAL COLLABORATIVE ARRANGEMENTS. The Company has granted certain
companies such as Medac, Boehringer, Laevosan, and Vita the exclusive right to
market and distribute, in certain territories, selected oncological products of
the Company and the right of first refusal to market and distribute, in
specified areas, certain of the Company's proposed products. As a result, the
Company may not independently market products or proposed products that are
covered by those agreements and may not enter into strategic alliances or
collaborative arrangements with others relating to any products covered by (i)
an exclusivity arrangement or (ii) a right of first refusal (without in the
latter instance first offering such right to the holders). Restrictions
regarding exclusivity and rights of first refusal limit the Company's ability to
pursue and negotiate collaborative arrangements with other entities on terms
which may be more favorable to the Company. In addition, the amount of
resources and the time that any of these collaborators devote towards marketing
the Company's products or proposed products are not within the Company's
control. There can be no assurance that any marketing, sales or other efforts
undertaken by the Company or its collaborators will be successful. Each of the
agreements terminates under certain specified circumstances and any termination
would have a material adverse effect on the Company. Consistent with its
business strategy, the Company intends to pursue additional collaborative
arrangements with third parties. There can be no assurance, however, that the
Company will be able to find additional collaborators or negotiate additional
collaborative arrangements on terms acceptable to the Company, if at all, that
the collaborative arrangements with the Company will be successful or, that
collaborators will devote sufficient resources to the Company's products,
proposed products or technologies. In addition, there can be no assurance that
future collaborative arrangements will not allow others to enter into
arrangements with the Company's collaborators for the commercialization of the
same product or that collaborators will not pursue alternative products either
on their own or in collaboration with others, including the Company's
competitors.
DEPENDENCE ON KEY SUPPLIERS. The majority of raw materials needed to
manufacture the Company's products and proposed products generally are not
readily available and must be purchased from limited sources. In addition, the
Company obtains containers for IV Solutions from a sole supplier. See
"Reliance on PLM." The Company's reliance on a sole or limited number of
suppliers involves several risks, including obtaining an adequate supply of raw
materials and components in order to manufacture or market products or proposed
products, increased raw material or component costs and reduced control over
pricing, quality and timely delivery. Any interruption in the supply of raw
materials or components could have a material adverse effect on the Company. In
addition, obtaining raw materials from a new source may require regulatory
approval. Furthermore, certain potential alternative suppliers may have
pre-existing exclusive relationships with competitors of the Company and others
which may preclude the Company from manufacturing certain of its proposed
products.
<PAGE>
NO ASSURANCE OF SUCCESSFUL PRODUCT DEVELOPMENT; UNCERTAINTY OF MARKET
ACCEPTANCE OF CERTAIN PROPOSED PRODUCTS. The Company currently markets certain
oncological products. Any unexpected developmental, regulatory or manufacturing
problems could delay the commercialization of the Company's current or proposed
products and have a material adverse effect on the Company and its prospects.
In addition, the market acceptance of any of the Company's current or proposed
products will be substantially dependent on the ability of the Company's
collaborators to demonstrate to the medical and healthcare communities the
capabilities, perceived benefits, and efficacy of the Company's current or
proposed products as well as sell commercial quantities of the current or
proposed products at acceptable costs. There can be no assurance that the
Company will be able to ultimately successfully develop its current or proposed
products or that it will be able to gain market acceptance for such products.
NEED FOR ADDITIONAL FINANCING. The Company will need to raise substantial
additional funds to continue to fund operating expenses or its expansion
strategy during the next 12 months. There can be no assurance that additional
financing will be available, or, if available, that such financing will be on
terms favorable to the Company. Failure to obtain such additional financing
would have a material adverse effect on the Company.
COMPETITION AND RAPID TECHNOLOGICAL CHANGE. The pharmaceutical industry is
subject to intense competition and rapid and significant technological change.
The Company faces competition from other pharmaceutical companies, particularly
regarding its generic products, many of which companies have substantially
greater financial and other resources than the Company and, therefore, are able
to spend more than the Company in areas such as product development,
manufacturing and marketing. Although a company with greater resources will not
necessarily receive regulatory approval for a particular generic drug before its
smaller competitors, substantial resources enable a company to support many
regulatory applications simultaneously, thereby improving the likelihood of at
least some of its generic drugs being among the first to receive regulatory
approval. Drug companies have also increasingly introduced generic versions of
their own proprietary products prior to the expiration of the patents for those
drugs in efforts to obtain greater market share following expiration of the
applicable patents. In addition, the market for the Company's products and
proposed products is characterized by frequent product improvements and evolving
technology. The Company's revenues and profitability could be adversely
affected by technological change. Competitors may develop products which may
render the Company's products or proposed products uneconomical or result in
products being commercialized that may be superior to the Company's products.
In addition, alternative treatments for cancer could be developed, which would
have a material adverse effect on the Company.
UNCERTAIN PROTECTION OF PATENTS AND PROPRIETARY RIGHTS. Patents concerning
pharmaceutical products generally are highly uncertain, involve complex legal,
scientific and factual questions and have recently been the subject of much
litigation. To date, no consistent policy has emerged regarding the breadth of
claims allowed or the degree of protection afforded under these patents.
Accordingly, there can be no assurance that patent applications which underlie
the Company's licenses will result in patents being issued, or that, if issued,
the patents will afford protection against competitors with similar technology.
Although the Company is not aware of any claim against it for infringement, the
Company's ability to commercialize its products and proposed products depends on
not infringing the proprietary rights of competitors. Laws regarding the
enforceability of intellectual property vary from country to country.
Therefore, there can be no assurance that intellectual property issues will be
uniformly resolved, or that local laws will provide the Company with consistent
rights and benefits. In addition, there can be no assurance that competitors
will not be issued patents which may prevent the manufacturing or marketing of
the Company's products or proposed products or require licensing and the payment
of fees or royalties by the Company in order for the Company to be able to
manufacture or market certain products.
FDA, INTERNATIONAL AND OTHER GOVERNMENTAL REGULATIONS. The development,
manufacturing and marketing of the Company's products and proposed products is
or may be subject to extensive and rigorous governmental regulations in the
United States and other countries. The process of obtaining and maintaining
required regulatory approvals is lengthy, expensive, and uncertain. In the
United States, the United States Food and Drug Administration ("FDA") regulates,
where applicable, the development, testing, labeling, manufacturing,
registration, notification, clearance or approval, marketing, distribution,
recordkeeping, and reporting requirements for drugs. The Company has not
received FDA approval to market any of its products or proposed products in the
United States. The Company has submitted abbreviated new drug applications
("ANDAs") to the FDA for six generic oncological products. The average time for
obtaining FDA approval for ANDAs is one to three years. However, due to
management's prior experience in submitting ANDAs to the FDA, the Company
believes it will be able to obtain FDA approval of these ANDAs in approximately
one year from the date of the submission of the applications. There can be no
assurance, however, that any of the Company's products or proposed products will
obtain regulatory approval in the time periods indicated or will ever obtain the
regulatory clearance or approval required for marketing in the United States.
Delays in any part of the approval process or the inability of the Company to
obtain regulatory approval of its products, proposed products or facilities
could adversely affect the Company.
The Company will be subject to the FDA's good manufacturing practices
("GMP"), good laboratory practices ("GLP") and extensive record keeping and
reporting requirements for manufacturing products for sale in the United States.
As a result, the Company's manufacturing facilities will be subject to periodic
inspections by the FDA and other United States federal agencies when the
Company's products are offered for sale in the United States. The Company's
operations have not yet been inspected by the FDA and there can be no assurance
they will pass any inspections by the FDA. The Company has retained independent
consultants to assist it in complying with FDA standards including the GMP
requirements. Failure to comply with applicable regulatory requirements can
result in, among other things, import detentions, fines, civil penalties,
suspensions or losses of approvals, recalls or seizures of products, operating
restrictions and criminal prosecutions.
To date, substantially all of the Company's revenues have been derived from
the sales of its products in Switzerland and Germany. The distribution of the
Company's products and proposed products outside the United States is subject to
extensive governmental regulations. These regulations, including the
requirements of inspections and approvals to market, the time required for
regulatory review and the sanctions imposed for
<PAGE>
violations, vary from country to country. There can be no assurance that the
Company will pass any such inspections, that the Company or its collaborators
will obtain or maintain the required regulatory approvals in any particular
country or that the Company will not be required to incur significant costs
in obtaining or maintaining its regulatory approvals. Failure to obtain
necessary regulatory approvals, the restriction, suspension or revocation of
existing approvals or any other failure to comply with regulatory
requirements would have a material adverse effect on the Company.
Because the Company's products are currently being sold primarily in
Switzerland and Germany, the Company is subject to regulation by these
countries, and the European Medicines Evaluation Agency ("EMEA") of the European
Union ("EU"). In Germany, drugs for human use may be sold only if they are
approved in advance by either the German regulatory authority or the EU after a
review of all applicable safety, quality and effectiveness data. Clinical
trials in Germany are monitored by the state authorities and must comply with
those portions of the EU good clinical practices recommendation that have been
adopted into German law. In practice, it takes the German authority generally
three to five years to approve drugs for use on humans, although the Company
believes it will receive regulatory approval for certain of its proposed
products earlier.
In Switzerland, approval of the production and sale of drugs for human use
is regulated on a cantonal level rather than a federal level. The cantons of
Switzerland have organized the Intercantonal Office for the Control of
Medications ("IKS") as an authority for the approval of pharmaceuticals. Based
on approval by the IKS, the cantons then grant permission for the production and
sale of such approved pharmaceuticals, although each canton is still entitled to
deny approval of a particular medication.
The IKS reviews all applicable safety, quality and efficacy data as well as
data relating to the cost effectiveness of a particular product. To obtain
approval from the IKS, the manufacturer must submit analytical, chemical,
pharmacological and toxicological data based on animal trials and human clinical
studies. The IKS also will inspect the manufacturing facility to determine if
the manufacturer is complying with good manufacturing practices before approval
is granted to produce the drug product. For generic products, pharmacological
and toxicological data is not required to be submitted to the IKS. To date, all
of the Company's pharmaceutical products which have been approved by the IKS are
generic products. There can be no assurance, however, that the Company will
maintain the required regulatory approvals to market its proposed products in
Switzerland.
RESTRICTIONS ON RETAINED EARNINGS. The Company is a Delaware corporation
which owns 100% of the capital stock of two Swiss corporations. The Swiss
Federal Code of Obligation provides that at least 5% of a Swiss company's net
income each year must be appropriated to a legal reserve until such time as the
reserve equals 20% of the company's paid-in share capital. In addition, 10% of
any distribution made by a company in excess of a 5% dividend also must be
appropriated to the Company's legal reserve. The reserve of up to 50% of the
share capital is not available for distribution to stockholders. These
requirements may adversely impact the amount of dividends to be issued by the
Company through its subsidiaries and may limit cash flow.
ENVIRONMENTAL MATTERS. As an enterprise engaged in the pharmaceutical
business in Switzerland, the Company's facilities are or will be subject to
comprehensive environmental laws and regulations governing, among other things,
air emissions, waste water discharge and solid and hazardous waste disposal.
Although there can be no assurance, the Company believes its current facilities
are in compliance in all material respects with applicable Swiss environmental
laws. However, environmental laws have changed in recent years and the Company
may become subject to increasingly stringent environmental standards in the
future. While the Company anticipates that from time to time it will incur
capital expenditures in connection with environmental matters, it is unable to
predict the extent or timing of future expenditures which may be required in
connection with complying with environmental laws. There can be no assurance
that future developments, administrative actions or liabilities arising from
environmental matters will not have a material adverse effect on the Company.
DEPENDENCE ON THIRD-PARTY REIMBURSEMENT; PRICE CONTROLS; HEALTH CARE REFORM
MEASURES. The Company's success in generating revenues from the sale of certain
products may depend on the extent to which reimbursement for the costs of such
products and related treatments will be available from third-party payors such
as government health administration authorities, private insurance companies,
self-insured employers, health maintenance organizations and other
organizations. The level of revenues and profitability of the Company, like
those of other companies in the pharmaceutical industry, are affected by the
continuing efforts of third-party payors to contain or reduce the costs of
health care by lowering reimbursement or payment rates, increasing case
management review of services and negotiating reduced contract pricing and
reimbursement caps.
In some markets outside of the United States, such as Germany, government
reimbursement is generally available for the purchase of the Company's products
and proposed products, subject to constraints such as reimbursement limitations.
In addition, third-party payors may refuse to provide reimbursement in cases
where drugs, such as oncological drugs, are used for unapproved uses.
Approximately 70% of the drugs sold in Germany are subject to maximum
reimbursement. To date, no oncological products have been affected by a maximum
reimbursement limitation, although there can be no assurance that the Company's
oncological products or proposed products will not be affected by a maximum
reimbursement limitation in the future. Although a manufacturer may sell its
products at prices that are higher than the maximum reimbursement rate, patients
are required to pay any difference between that price and the maximum
reimbursement rate. If the products of the Company become subject to a maximum
reimbursement rate, this may adversely affect the prices the Company will be
able to charge.
In Switzerland, reimbursement for pharmaceutical products is regulated on
the federal level. There are two categories of drugs subject to reimbursement.
The first category consists of medications which are required to be reimbursed
by private health insurers. The second category contains medications for which
reimbursement by health insurers is recommended. Private health insurers
generally provide reimbursement for products on the recommended list. There can
be no assurance that payments under governmental and third-party payor programs
will remain at
<PAGE>
levels comparable to present levels or will, in the future, be sufficient to
cover the costs allocable to patients eligible for reimbursement pursuant to
such programs.
From time to time, the Clinton Administration, the U.S. Congress and
legislators of certain foreign governments have proposed or are considering a
variety of reforms to the health care systems. The Company cannot predict what
health care reform legislation, if any, will be enacted in the United States or
elsewhere. Changes in the health care system in the United States or elsewhere
could have a significant impact on the manner in which the Company conducts its
business and may impose additional regulations governing the conduct of the
Company's business. These changes could have a material adverse effect on the
Company.
POTENTIAL PRODUCT LIABILITY; AVAILABILITY OF INSURANCE; RISK OF PRODUCT
RECALL. The testing, clinical trials, manufacturing, and marketing of the
Company's products and proposed products involve the inherent risks of product
liability claims or similar legal theories against the Company, some of which
may cause the Company to incur significant defense costs. Although the Company
currently maintains product liability insurance coverage which it believes is
adequate, there can be no assurance that the coverage limits of its insurance
are adequate or that all such claims will be covered by insurance. In addition,
these policies generally must be renewed every two years. While the Company has
been able to obtain product liability insurance in the past, there can be no
assurance it will be able to obtain insurance in the future on its products or
proposed products. Product liability insurance varies in cost, is difficult to
obtain and may not be available in the future on terms acceptable to the
Company, if it is available at all. A successful product liability claim or
other judgment against the Company in excess of its insurance coverage could
have a material adverse effect upon the Company or its reputation. Certain of
the Company's collaborative arrangements contain cross indemnification
provisions with respect to product liability claims concerning products covered
by the arrangements. The Company may be required to make payments, which in
some cases could be substantial, under these arrangements. In addition,
products such as those sold or proposed to be sold by the Company may be subject
to recall for unforeseen reasons. Such a recall could have a material adverse
effect on the Company and its reputation. In Germany, an injured party may
recover for damages on a strict liability basis without having to prove
negligence on the part of the manufacturer or distributor. In Switzerland,
there is no special product liability law for pharmaceuticals. The Swiss
federal product liability law, which covers drug products, provides that
manufacturers are subject to strict liability for injuries caused by defective
products.
UNCERTAINTY OF CURRENCY FLUCTUATIONS. All of the Company's revenues for
the fiscal years ended December 31, 1993 through 1996 were derived from sales
outside of the United States. Because the Company's international operations
are conducted in various foreign currencies, it may be materially and adversely
affected by fluctuations in currency exchange rates. As a result, the Company
will be exposed to foreign currency exchange risks due to fluctuations in the
exchange rates between the foreign currencies and the U.S. dollar. If the
Company executes hedging transactions, there can be no assurance that the
Company will be successful in these activities.
DEPENDENCE ON KEY PERSONNEL. The Company is dependent on the experience,
abilities and continued services of John G. Tramontana, its Chairman of the
Board, President and Chief Executive Officer. The Company has entered into a
five-year employment agreement with Mr. Tramontana which expires in 2001 and has
obtained a $2,000,000 key man life insurance policy on the life of Mr.
Tramontana, for the benefit of the Company. The loss or reduction of services
of Mr. Tramontana or any other key employee could have a material adverse effect
on the Company. In addition, the Company's future success depends in large part
upon its ability to attract and retain highly qualified personnel, including
experienced manufacturing personnel. The Company faces competition for such
personnel from other companies and organizations, many of which have
significantly greater resources than the Company. There can be no assurance
that the Company will be able to attract and retain the necessary personnel on
acceptable terms or at all.
CONTROL OF COMPANY. The Company's directors and executive officers
beneficially own, in the aggregate, approximately 2,446,699 shares of the
outstanding Common Stock, representing approximately 58.5% of the issued and
outstanding Common Stock. Accordingly, these persons will be in a position to
control the management and policies of the Company in general, and can determine
the outcome of many corporate transactions or other matters submitted to the
Company's stockholders for approval.
ENFORCEABILITY OF CIVIL LIABILITIES AGAINST THE COMPANY. Substantially all
of the assets of the Company are located outside of the United States. As a
result, it may be difficult for investors to enforce judgments against the
Company obtained in United States courts including judgments predicated on the
civil liability provisions of the United States securities laws. The United
States does not currently have a treaty providing for reciprocal recognition and
enforcement of judgments in civil and commercial matters with Switzerland or
Germany and there is doubt whether (i) a final judgment for the payment of money
rendered by a Federal or state court in the United States based on civil
liability, whether or not predicated solely upon the civil liability provisions
of the United States securities laws, would be enforceable in Switzerland or
Germany against the Company and (ii) an action could be brought in Switzerland
or Germany against the Company in the first instance on the basis of liability
predicated solely upon the provisions of the United States securities laws.
CONTINUED QUOTATION ON THE NASDAQ SMALLCAP MARKET.-SM- The Company's
Common Stock is quoted on the Nasdaq SmallCap Market-SM-. However, there can be
no assurance that it will be able to satisfy the criteria for continued
quotation on the Nasdaq SmallCap Market-SM-. Failure to meet the maintenance
criteria in the future may result in the Common Stock not being eligible for
quotation on the Nasdaq SmallCap Market-SM- or otherwise. In such event, an
investor may find it more difficult to dispose of, or to obtain accurate
quotations as to the market value of, the Common Stock.
POSSIBLE ADVERSE EFFECTS OF ISSUANCE OF PREFERRED STOCK; ANTI-TAKEOVER
PROVISIONS. The Company's Restated and Amended Certificate of Incorporation
("Restated Certificate") authorizes the issuance of a maximum of 5,000,000
shares of preferred stock, par value $.001 per
<PAGE>
share ("Preferred Stock"), with designations, rights and preferences as
determined from time to time by the Board of Directors. As a result of the
foregoing, the Board of Directors can issue, without further stockholder
approval, Preferred Stock with dividend, liquidation, conversion, voting or
other rights that could adversely affect the voting power or other rights of
the holders of the Common Stock. The issuance of Preferred Stock could,
under certain circumstances, discourage, delay or prevent a change in control
of the Company. In addition, the issuance of Preferred Stock could dilute
the rights of holders of the Common Stock and the market price of the Common
Stock. There can be no assurance that the Company will not issue Preferred
Stock at some future date. The Company is subject to Delaware General
Corporation Law ("DGCL") provisions that prohibit the Company from entering
into certain business combinations without the approval of its Board of
Directors and, as such, could prohibit or delay mergers or other transactions
or changes in control with respect to the Company. Such provisions,
accordingly, may discourage attempts to acquire the Company.
SHARES ELIGIBLE FOR FUTURE SALE; EXERCISE OF REGISTRATION RIGHTS. The
Company has granted outstanding Warrants to purchase shares of Common Stock to
the following entities and individuals: LT Lawrence & Co., Inc. (130,600
shares), Joel L. Gold (22,867 shares), Eric M. Chen (11,433 shares), Ceaser
Fraschilla (2,100 shares) and Jericho II, L.L.C. (500,000 shares). All of the
Warrants contain anti-dilution provisions providing for an adjustment of the
exercise price and a proportionate adjustment in the number of shares issuable
upon the occurrence of certain events. In addition, the holders of some of the
Warrants have been granted certain registration rights upon exercise of the
Warrant. The sale, or availability for sale, of the Common Stock underlying the
Warrants in the public market could adversely affect the prevailing market price
of the Common Stock and could impair the Company's ability to raise additional
capital.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the rules and
regulations promulgated thereunder, and, in accordance therewith, files reports,
proxy statements and other information with the Securities and Exchange
Commission ("SEC" or the "Commission"). Reports, proxy statements and other
information filed by the Company may be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Regional Offices of the SEC at Seven World
Trade Center, Suite 1300, New York, New York and at Suite 1400, 500 West Madison
Street, Chicago, Illinois. Copies of such information can be obtained by mail
from the Public Reference Section of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Access to such information is also
available on the Internet from the SEC's "EDGAR" World Wide Web page, using a
World Wide Web browser and the address http://www.sec.gov.
Reports and other information concerning the Company can also be inspected
at the NASDAQ Stock Market, Inc., 1735 K Street, Washington, D.C. 20006 and The
Boston Stock Exchange, One Boston Place, Boston, Massachusetts 02108.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act of 1933, as amended (the "Securities Act") with respect to
the Shares offered hereby. In accordance with the rules and regulations of the
Commission, this Prospectus omits certain of the information contained in the
Registration Statement. Reference is hereby made to the Registration Statement
and related exhibits and the documents incorporated herein by reference for
further information with respect to the Company and the Company's Common Stock.
Statements contained herein or incorporated herein by reference concerning the
provisions of any document are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference. The Registration
Statement, including the exhibits and schedules thereto, is also available on
the Commission's Web site at http://www.sec.gov.
This Prospectus contains certain forward-looking statements that involve
substantial risks and uncertainties. When used in this Prospectus, the words
"anticipate," "believe," "estimate," "intend" and "expect" and similar
expressions are intended to identify such forward-looking statements. The
Company's actual results, performance or achievements could differ materially
from the results expressed in or implied by these forward-looking statements.
Factors that could cause or contribute to such differences include those
discussed in "Risk Factors." Prospective investors should consider carefully
these factors in addition to the other information set forth in this Prospectus.
INFORMATION INCORPORATED BY REFERENCE
The Company incorporates herein by reference the following documents it has
previously filed with the Commission (File No. 1-14416) pursuant to the Exchange
Act:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(b) the Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997;
(c) the Company's Current Reports on Form 8-K filed May 20, 1997, August
28, 1997, September 11, 1997, September 29, 1997 and September
30, 1997; and
<PAGE>
(d) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1, declared effective June
19, 1996.
All documents and reports subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering of the Shares shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or
oral request of such person, a copy of any or all the documents incorporated
herein by reference, other than exhibits to such documents unless such
exhibits are specifically incorporated by reference in such documents, and
any other documents specifically identified herein as incorporated by
reference into the Registration Statement to which this Prospectus relates or
into such other documents. Requests should be addressed to: Investor
Relations, Bigmar, Inc., 9711 Sportsman Club Road, Johnstown, Ohio
43031-9141, Telephone: (614) 966-5800.
THE COMPANY
The Company is currently engaged in manufacturing and marketing 20 types of
IV Solutions and generic oncological products in Europe. Over the next 24
months, the Company's strategy is to manufacture and market generic oncological
drugs targeted for world markets. The Company has received general approval
from the Swiss Intercantonal Office for the Control of Medications for the
production of all injectable pharmaceutical products. The Company has also
submitted six ANDAs to the FDA.
The Company's executive offices are located at 9711 Sportsman Club Road,
Johnstown, Ohio 43031-9141. The Company's telephone number is (614) 966-5800.
SELLING STOCKHOLDER
On August 29, 1997, the Company issued a $4,000,000 Convertible Note (the
"Note") to the Selling Stockholder named below. The Note is convertible into
Common Stock at the rate of $5.25 per Share.
<TABLE>
<CAPTION>
NUMBER OF
SHARES NUMBER OF
BENEFICIALLY MAXIMUM SHARES
OWNED PRIOR NUMBER OF BENEFICIALLY
TO PERCENT OF SHARES OWNED AFTER PERCENT OF
SELLING STOCKHOLDER OFFERING(1) OUTSTANDING OFFERED(1) OFFERING OUTSTANDING
------------------- ------------ ----------- ----------- ------------- -----------
<S> <C> <C> <C> <C> <C>
Banca del Gottardo 961,905 19.44% 761,905 200,000 4.78%
</TABLE>
(1) The shares to be sold shall include, in addition to the numbers
indicated, any additional shares of Common Stock of the Company that
become issuable in connection with the Shares by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration that results in an
increase in the number of outstanding shares of the Company's Common
Stock.
PLAN OF DISTRIBUTION AND OFFERING PRICE
The Shares may be sold from time to time by the Selling Stockholder, or by
its pledgees, donees, transferees or other successors in interest. Such sales
may be made on one or more exchanges or in the over-the-counter market, or
otherwise at prices and at terms then prevailing or at prices related to the
then current market price or in negotiated transactions. The Shares may be sold
by any one or more of the following: (a) a block trade in which the broker or
dealer so engaged will attempt to sell the Shares as agent but may purchase and
resell a portion of the block as principal to facilitate the transaction; (b)
purchases by a broker or dealer as principal and resale by such broker or dealer
for its account pursuant to this Prospectus; (c) an exchange distribution in
accordance with the rules of such exchange; and (d) ordinary brokerage
transactions and transactions in which the broker solicits purchasers. In
effecting sales, brokers or dealers engaged by the Selling Stockholders may
arrange for other brokers or dealers to participate. Brokers and dealers will
receive commissions or discounts from the Selling Stockholders in amounts to be
negotiated prior to the sale. The Selling Stockholder and any brokers or
dealers participating in the distribution of the Shares may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with such
sales, and any commissions received by such broker-dealers and any profits
realized on the resale of Shares by them may be deemed to be underwriting
discounts and commissions under the Securities Act. The Selling Stockholder may
agree to indemnify such broker-dealers with respect to the Shares offered hereby
against certain liabilities, including certain liabilities under the Securities
Act.
<PAGE>
The Company will pay the registration expenses incident to the offering and
sale of the Shares to the public. Such expenses (estimated to be
$________________) include legal and accounting expenses, filing fees payable to
the Commission, applicable state "blue sky" filing fees and printing expenses.
The Company, however, will not pay for any expenses, commissions or discounts of
underwriters, dealers or agents for the Selling Stockholder.
Any underwriters, brokers, dealers and agents who participate in any such
sale may also be customers of, engage in transactions with or perform services
for the Company or the Selling Stockholder in the ordinary course of business.
The Company's Common Stock is currently traded on the NASDAQ SmallCap
Market and on The Boston Stock Exchange. The public offering price for any
Shares that are sold will be determined by the price indicated on such systems
at the time such sale occurs, or at such price as shall be determined through
private negotiations between the buyer and the Selling Stockholder or its agent.
VALIDITY OF STOCK
The validity of the Shares will be passed upon for the Company by Bricker &
Eckler LLP, Columbus, Ohio.
EXPERTS
The consolidated financial statements included in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996 incorporated
by reference in this Prospectus and Registration Statement have been audited
by Richard A. Eisner & Company, LLP, independent auditors, and are included
herein in reliance on the report of said firm given upon the authority of
said firm as experts in accounting and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting compensation, are:
SEC Filing Fee for Registration Statement................. $ 758.57
---------
Accounting Fees........................................... $ *
---------
Legal Fees and Expenses................................... $ *
---------
Miscellaneous............................................. $ *
---------
Total........................................... $ *
---------
*Estimated Amount
All of the expenses listed above will be borne by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has included in its Restated Certificate provisions to
indemnify its directors and officers to the fullest extent permitted by Delaware
law. The Company's Restated Certificate also includes provisions to eliminate
the personal liability of the Company's directors and officers to the fullest
extent permitted by Delaware law. Under current law, such exculpation would
extend to an officer's or director's breaches of fiduciary duty, except for (i)
breaches of such person's duty of loyalty, (ii) those instances where such
person is found not to have acted in good faith and (iii) those instances where
such person received an improper personal benefit as the result of such breach.
The Company's Restated By-Laws ("By-Laws") provide that the Company may
indemnify any person, including officers and directors, with regard to any
action or proceeding to the fullest extent permitted by Delaware law.
The Company has entered into an indemnification agreement ("Indemnification
Agreement") with each of its directors and officers. Each Indemnification
Agreement provides that the Company will indemnify the indemnitee against
expenses, including reasonable attorneys' fees, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with any civil or criminal action or administrative proceeding arising out of
his performance of his duties as a director or officer, other than an action
instituted by the director or officer. Such indemnification is available if the
indemnitee acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to any
criminal action, had no reasonable cause to believe his conduct was unlawful.
Each Indemnification Agreement also requires that the Company indemnify the
director or other party thereto in all cases to the fullest extent permitted by
applicable law. The term of each Indemnification Agreement is the later of (i)
10 years after the date that the indemnitee ceases to serve as a director or
officer of the Company, or (ii) the final termination of all proceedings, as
defined in the Indemnification Agreement, in which the indemnitee is granted
rights of indemnification.
Each Indemnification Agreement permits the indemnitee to bring suit to seek
recovery of amounts due under such Indemnification Agreement and requires that
the Company indemnify the director or other party thereto in all cases to the
fullest extent permitted by applicable law.
The Company has purchased a directors' and officers' insurance policy
providing coverage of $1.0 million. This policy has a premium of $62,500 and
expires in June 1998.
It is the position of the Commission that insofar as the Company's Restated
Certificate, By-Laws or any Indemnification Agreement may be invoked by any
director, officer or stockholder as a means of indemnifying them against
liabilities arising under the Securities Act, that such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 16. EXHIBITS
(a) Exhibits:
4.1 Restated and Amended Certificate of Incorporation (1)
4.1(a) Certificate of Correction to Restated and Amended Certificate of
Incorporation (1)
4.2 Restated By-Laws (1)
4.2(a) Amendment to Restated By-Laws (1)
II-1
<PAGE>
5.1 Opinion of Bricker & Eckler LLP regarding the legality of the securities
being registered
23.1 Consent of Richard A. Eisner & Company, LLP (2)
23.2 Consent of Bricker & Eckler LLP (included in Exhibit 5)
24 Powers of Attorney (included on the Signature Page of this Registration
Statement)
(1) Incorporated by reference from the Registrant's Form 10-K Annual Report for
the fiscal year ended December 31, 1997 (File No. 1-14416).
(2) To be filed by amendment.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for the
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
II-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF BARGENGO, COUNTRY OF SWITZERLAND, ON DECEMBER 30,
1997.
BIGMAR, INC.
BY: /S/ JOHN G. TRAMONTANA
---------------------------------------
JOHN G. TRAMONTANA
CHAIRMAN OF THE BOARD OF DIRECTORS AND
CHIEF EXECUTIVE OFFICER
(PRINCIPAL EXECUTIVE OFFICER)
THE UNDERSIGNED OFFICERS AND DIRECTORS OF BIGMAR, INC., HEREBY SEVERALLY
CONSTITUTE AND APPOINT WILLIAM R. ASH, III AND MICHAEL K. MEDORS, AND EACH OF
THEM SINGLY, OUR TRUE AND LAWFUL ATTORNEYS AND AGENTS, WITH FULL POWER TO THEM,
AND EACH OF THEM, TO SIGN FOR US AND IN OUR NAMES IN THE CAPACITIES INDICATED
BELOW, THE REGISTRATION STATEMENT ON FORM S-3 FILED HEREWITH AND ANY AND ALL
PRE-EFFECTIVE AND POST-EFFECTIVE AMENDMENTS TO SAID REGISTRATION STATEMENT, AND
GENERALLY TO DO ALL SUCH THINGS IN OUR NAMES AND ON OUR BEHALF IN OUR CAPACITIES
AS OFFICERS AND DIRECTORS TO ENABLE BIGMAR, INC. TO COMPLY WITH THE PROVISIONS
OF THE SECURITIES ACT OF 1933, AS AMENDED, AND ALL REQUIREMENTS OF THE
SECURITIES AND EXCHANGE COMMISSION, HEREBY RATIFYING AND CONFIRMING OUR
SIGNATURES AS THEY MAY BE SIGNED BY OUR SAID ATTORNEYS, OR ANY OF THEM, TO SAID
REGISTRATION STATEMENT AND ANY AND ALL AMENDMENTS THERETO.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
Chairman of the Board of Directors December 30, 1997
/s/ JOHN G. TRAMONTANA and Chief Executive Officer
- ------------------------------------------------ (Principal Executive Officer)
JOHN G. TRAMONTANA
Treasurer, Secretary, and Director December 31, 1997
/s/ MICHAEL K. MEDORS (Principal Accounting Officer)
- ------------------------------------------------
MICHAEL K. MEDORS
Director December __, 1997
- ------------------------------------------------
ERIC M. CHEN
Director December 31, 1997
/s/ BERNARD KRAMER
- ------------------------------------------------
BERNARD KRAMER
Director December __, 1997
- ------------------------------------------------
JOHN R. MORRIS
/s/ FABIO A. GIOVANNINI Director December 31, 1997
- ------------------------------------------------
FABIO A. GIOVANNINI
Chief Financial Officer December 31, 1997
/s/ WILLIAM R. ASH, III (Principal Financial Officer)
- ------------------------------------------------
WILLIAM R. ASH, III
</TABLE>
<PAGE>
INDEX TO EXHIBITS
PAGE NO. IN
EXHIBIT NO. DESCRIPTION THIS FILING
- ----------- ----------- -----------
4.1 Restated and Amended Certificate of Incorporated by Reference
Incorporation
4.1(a) Certificate of Correction to Restated Incorporated by Reference
and Amended Certificate of Incorporation
4.2 Restated By-Laws Incorporated by Reference
4.2(a) Amendment to Restated By-Laws Incorporated by Reference
5.1 Opinion of Bricker & Eckler LLP ________________
23.1 Consent of Richard A. Eisner &
Company, LLP To be filed by amendment.
23.2 Consent of Bricker & Eckler LLP Included in Exhibit 5.1
24 Powers of Attorney Included on Signature
Page of this Registration
Statement
<PAGE>
EXHIBIT 5.1
December 31, 1997
Board of Directors
Bigmar, Inc.
9711 Sportsman Club Road
Johnstown, Ohio 43031-9141
Gentlemen:
Reference is made to the filing by Bigmar, Inc., a Delaware corporation
(the "Company"), of a Registration Statement on Form S-3 (the "Registration
Statement") with the Securities and Exchange Commission pursuant to the
provisions of the Securities Act of 1933, as amended, covering the registration
of 761,905 shares of the Company's Common Stock, $.001 par value per share (the
"Common Stock").
We have examined the Company's corporate records, including its Restated
and Amended Certificate of Incorporation, as amended, Restated By-Laws, as
amended, its corporate minutes, the form of its Common Stock certificates and
such other documents and information as we have deemed necessary or relevant
under the circumstances.
Based upon the foregoing, we are of the opinion that the Company is a duly
incorporated and legally existing corporation under the laws of the State of
Delaware. We are also of the opinion, based on the foregoing and assuming
compliance with applicable federal and state securities laws, that the Common
Stock issuable upon conversion of the Note described in the Registration
Statement will be, when converted pursuant to the terms of the Note, validly
issued and outstanding, fully paid and non-assessable.
We hereby consent to be named in the Registration Statement and in the
Prospectus which constitutes a part thereof as counsel of the Company, and we
hereby consent to the filing of the opinion as Exhibit 5.1 to the Registration
Statement.
Very truly yours,
BRICKER & ECKLER LLP
