<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1998
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
(740) 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
(740) 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 ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF SHARES TO MAXIMUM MAXIMUM
BE REGISTERED AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
---------- REGISTERED (1) PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
-------------- ------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, $.001
par value 150,000 $2.031 $304,650.00 $90.00
</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
September 28, 1998.
THE REGISTRANT HEREBY AMENDS THE 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.
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 SEPTEMBER 30, 1998
150,000 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") were issued by the Company in a
private placement to the entity named herein under "Selling Stockholder." All
of the Shares are being offered by the selling stockholder or by pledgees,
donees, transferees or other successors in interest and
<PAGE>
permitted assigns of such selling stockholder (the "Selling Stockholder").
The Company will not receive any of the proceeds from the sale of the Shares
by Selling Stockholder; however, in consideration of issuing the Shares to
the Selling Stockholder, the Company received net proceeds of $300,000.00
which will be 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-SM-
under the symbol "BGMR" and on the Boston Stock Exchange under the symbol "BGM".
On September 28, 1998, the last sale price of the Company's Common Stock as
reported by Nasdaq was $2.031 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 $10,090.00), 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 5)
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 September 30, 1998.
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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.
<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 l995 and was a development stage company until it effectuated a
stock-for-stock exchange on April 8, 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 year ended December 31, 1997, the
Company incurred a net loss of $7,378,024. 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 Liechtenstein ("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
<PAGE>
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 could 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 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 could
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, 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,
<PAGE>
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.
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, and to sell commercial quantities
of the current or proposed products at acceptable costs. There can be no
assurance that the Company will be able to 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 for 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
could 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
<PAGE>
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 REGULATORS. The development,
manufacturing and marketing of the Company's products and proposed products
is 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 eight 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 to two years 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 current good manufacturing
practices ("cGMP"), current good laboratory practices ("cGLP") and extensive
record keeping and reporting requirements for manufacturing products for sale in
the United States. As a
<PAGE>
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 were inspected on a preliminary basis by the FDA, and FDA comments
were not atypical for a startup company. The Company expects to
satisfactorily address all of those comments. However, there can be no
assurance it will pass any subsequent inspections by the FDA. The Company has
retained independent consultants to assist it in complying with FDA standards
including the cGMP 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 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 could 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
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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.
DEPENDENT 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.
<PAGE>
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 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, can be difficult to obtain and may not be available in the
future on terms acceptable to the Company, if it is
<PAGE>
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 1997 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 2,845,000 shares of the
outstanding Common Stock, representing approximately 59.2% 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
<PAGE>
for approval. See "SHARES ELIGIBLE FOR FUTURE SALE; EXERCISE OF REGISTRATION
RIGHTS."
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 MarketSM. Failure to meet the maintenance
criteria in the future may result in the Common Stock not being eligible for
quotation on the Nasdaq SmallCap MarketSM 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 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 which
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.
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE; EXERCISE OF REGISTRATION RIGHTS. On May
28, 1998, the Company signed an agreement with Jericho II L.L.C. ("Jericho")
regarding the terms on which Jericho will guarantee a line of credit from a
commercial institution to the Company in an amount up to $6.0 million. On
May 28, 1998, the Company, in consideration of the guarantee, delivered
warrants to Jericho to purchase 1,000,000 shares of convertible preferred
stock (the "Preferred Stock") at a price per share equal to $2.5625 and
having a term of 10 years (the "Warrants"). The Preferred Stock shall be
convertible to Common Stock on a one-to-one basis, with such conversion rate
to adjust to reflect diluting issuance of equity securities by the Company
and also to adjust for stock splits, dividends, combinations and similar
events. The Preferred Stock shall be entitled to five votes per share and
shall vote together with the Common Stock in addition to having certain
special approval rights. The Preferred Stock shall have a liquidation
preference equal to the purchase price per share. The Warrants shall include
a net exercise clause (to permit the conversion of the Warrants into shares
having a fair market value equal to the spread between the exercise price and
the then fair market value) and the shares issuable on exercise shall be
entitled to piggyback registration rights, subject to standard underwriter's
cutback. John G. Tramontana, Chairman of the Board, President and Chief
Executive Officer of the Company, has a 50% ownership interest in Jericho. In
addition, 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),
Caesar Fraschilla (2,100 shares) and Jericho (500,000 shares). All of these
warrants (the "Other Warrants") contain anti-dilution provisions providing
for an adjustment of the exercise price and proportionate adjustment in the
number of shares issuable upon the occurrence of certain events. In addition,
the holders of some of these Other Warrants have been granted certain
registration rights upon exercise of the Other Warrant. The sale, or
availability for sale, of the Common Stock underlying the Warrants and the
Other Warrants in the public market could adversely effect 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.
<PAGE>
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, the other information set forth in this Prospectus, as well as
other factors discussed from time to time in the Company's reports, filed
with the Commission.
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, 1997;
(b) the Company's Quarterly Report on Form 10-Q for the fiscal quarters
ended March 31, 1998 and June 30, 1998;
<PAGE>
(c) the Company's Current Report on Form 8-K filed June 5, 1998; and
(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: (740)
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 injectible pharmaceutical products. The Company has also
submitted eight 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 (740) 966-5800.
<PAGE>
SELLING STOCKHOLDER
On August 29, 1998, the Company issued 150,000 shares of common stock to the
Selling Stockholder named below at a price of $2.00 per Share.
<TABLE>
<CAPTION>
NUMBER OF
MAXIMUM SHARES
NUMBER OF SHARES NUMBER OF BENEFICIALLY PERCENT
SELLING BENEFICIALLY OWNED PRIOR PERCENT OF SHARES OWNED AFTER OF
STOCKHOLDER TO OFFERING (1) OUTSTANDING OFFERED (1) OFFERING OUTSTANDING
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Banca del Gottardo 200,000 4.8% 150,000 350,000 8.1%
</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.
In August 1997, the Company entered into a Note Purchase, Paying, and
Conversion Agency Agreement (the "Note Agreement") with Banca del Gottardo.
Under the Note Agreement, the Company issued 8% notes, due August 29, 2002,
with interest payable semi-annually in February and August. After January 1,
1998, the notes are convertible into 761,905 shares of the Company's common
stock at an initial conversion price of $5.25 per share. Net proceeds from
the notes were $3,670,000 after deductions of commissions and related
expenses. The notes can be repaid at the option of the Company before the due
date at 110% of the principal amount due. In compliance with the terms of the
Note Agreement, the Company registered with the Commission the shares of the
Company's common stock into which the note may be converted pursuant to a
Registration Statement on Form S-3 originally filed on December 31, 1997 and
amended on June 5, 1998.
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 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
Stockholder may arrange for other brokers or dealers to participate. Brokers
and dealers will receive commissions or discounts from the Selling
Stockholder 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 $10,090.00)
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-SM- 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 as of December 31, 1997 and 1996, and
for each of the years in the three-year period ended December 31, 1997, included
in the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997, have been incorporated by reference in this Prospectus and
Registration Statement on Form S-3 in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing. The report of KPMG Peat Marwick LLP contains an explanatory paragraph
that states the Company has suffered recurring losses from operations, and
anticipates it will require additional financing in order to complete the
validation of its manufacturing plant and equipment and to fund its operations
during 1998. These factors raise substantial doubt about the Company's ability
to continue as a going concern. The consolidated financial statements do not
include any adjustments that might result from the outcome of that uncertainty.
<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:
<TABLE>
<CAPTION>
<S> <C>
SEC Filing Fee for Registration
Statement . . . . . . . . . . . . . . . . . . . . . . . $ 90.00
-----------
Accounting
Fees. . . . . . . . . . . . . . . . . . . . . . . . . . $ 3,500.00*
Legal Fees and
Expenses. . . . . . . . . . . . . . . . . . . . . . . . $ 4,000.00*
Miscellaneous . . . . . . . . . . . . . . . . . . . . . $ 2,500.00*
-----------
TOTAL. . . . . . . . . . . . . . . . . . . . . . . $10,090.00*
-----------
*Estimated Amount
</TABLE>
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
<PAGE>
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 1999.
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
<TABLE>
<CAPTION>
<S> <C>
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)
5.1 Opinion of Bricker & Eckler LLP regarding the legality of the
securities being registered
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Bricker & Eckler LLP (included in Exhibit 5.1)
24 Power of Attorney
</TABLE>
<PAGE>
(1) Incorporated by reference to the Company's Registration Statement
No. 333-3830, declared effective by the Commission on June 19, 1996.
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.
<PAGE>
(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.
<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 JOHNSTOWN, STATE OF OHIO, ON SEPTEMBER 30, 1998.
BIGMAR, INC.
BY: /s/ WILLIAM R. ASH, III
------------------------------------
WILLIAM R. ASH, III
CHIEF FINANCIAL OFFICER
(PRINCIPAL FINANCIAL OFFICER)
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 September 30, 1998
/s/ JOHN G. TRAMONTANA and Chief Executive Officer
----------------------- (Principal Executive Officer)
JOHN G. TRAMONTANA
September 30, 1998
/s/ WILLIAM R. ASH, III Chief Financial Officer
----------------------- (Principal Financial Officer)
WILLIAM R. ASH, III
September 30, 1998
/s/ FABIO GIOVANNINI Director
-----------------------
FABIO GIOVANNINI
September ___, 1998
Director
-----------------------
BERNARD KRAMER
<PAGE>
/s/ JOHN R. MORRIS
----------------------- Director September 30, 1998
JOHN R. MORRIS
September ___, 1998
Director
-----------------------
MASSIMO PEDRANI
September 30, 1998
/s/ MICHAEL K. MEDORS Treasurer, Secretary, and Director
----------------------- (Principal Accounting Officer)
MICHAEL K. MEDORS And as Attorney in Fact for Messrs.
Tramontana, Giovannini and Morris,
in the designated capacities
pursuant to power of attorney dated
September 30, 1998, and filed with
this Registration Statement on that
date.
</TABLE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
NO.
<S> <C> <C>
4.1 Restated and Amended Certificate of Incorporated by
Incorporation Reference
4.1 (a) Certificate of Correction to Restated Incorporated by
and Amended Certificate of Reference
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 Included herein
23.1 Consent of KPMG Peat Marwick LLP Included herein
<PAGE>
<S> <C> <C>
23.2 Consent of Bricker & Eckler LLP Included in
Exhibit 5.1
24 Power of Attorney Included herein
</TABLE>
<PAGE>
EXHIBIT 5.1
September 30, 1998
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 150,000 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 is 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
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the use of our reports incorporated herein by
reference and to the reference to our firm under the heading "Experts"
in the Prospectus and Registration Statement on Form S-3. Our
report dated March 27, 1998 contains an explanatory paragraph that
states the Company has suffered recurring losses from operations, and
anticipates it will require additional financing in order to complete
the validation of its manufacturing plant and equipment and to fund
its operations during 1998. These factors raise substantial doubt
about the Company's ability to continue as a going concern. The
consolidated financial statements do not include any adjustments that
might result from the outcome of that uncertainty.
KPMG Peat Marwick LLP
Columbus, Ohio
September 30, 1998
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned officer and/or director of Bigmar, Inc. (the "Company"),
does hereby constitute and appoint William R. Ash and Michael K. Medors, or
either of them, my true and lawful attorneys and agents, each with power of
substitution, to do any and all acts and things in my name and on my behalf in
any and all capacities, and to execute any and all instruments for me and in my
name in any and all capacities, which said attorneys or agents, or any of them,
may deem necessary or advisable to enable the Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with the filing of a
Registration Statement on Form S-3 in connection with the issuance to Banca del
Gottardo of 150,000 shares of Common Stock of the Company at $2.00 per share
pursuant to the Letter Agreement between the Company and Banca del Gottardo
dated August 19, 1998, including specifically but without limitation, power and
authority to sign for me in my name in any and all capacities, any and all
amendments (including post-effective amendments) to such Registration Statement,
and I do hereby ratify and confirm all that the said attorneys and agents, or
their substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ JOHN G. TRAMONTANA
----------------------------------------
John G. Tramontana
Chairman of the Board of Directors
and Chief Executive Officer
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned officer and/or director of Bigmar, Inc. (the "Company"),
does hereby constitute and appoint William R. Ash and Michael K. Medors, or
either of them, my true and lawful attorneys and agents, each with power of
substitution, to do any and all acts and things in my name and on my behalf in
any and all capacities, and to execute any and all instruments for me and in my
name in any and all capacities, which said attorneys or agents, or any of them,
may deem necessary or advisable to enable the Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with the filing of a
Registration Statement on Form S-3 in connection with the issuance to Banca del
Gottardo of 150,000 shares of Common Stock of the Company at $2.00 per share
pursuant to the Letter Agreement between the Company and Banca del Gottardo
dated August 19, 1998, including specifically but without limitation, power and
authority to sign for me in my name in any and all capacities, any and all
amendments (including post-effective amendments) to such Registration Statement,
and I do hereby ratify and confirm all that the said attorneys and agents, or
their substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ FABIO GIOVANNINI
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Fabio Giovannini
Director
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned officer and/or director of Bigmar, Inc. (the "Company"),
does hereby constitute and appoint William R. Ash and Michael K. Medors, or
either of them, my true and lawful attorneys and agents, each with power of
substitution, to do any and all acts and things in my name and on my behalf in
any and all capacities, and to execute any and all instruments for me and in my
name in any and all capacities, which said attorneys or agents, or any of them,
may deem necessary or advisable to enable the Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with the filing of a
Registration Statement on Form S-3 in connection with the issuance to Banca del
Gottardo of 150,000 shares of Common Stock of the Company at $2.00 per share
pursuant to the Letter Agreement between the Company and Banca del Gottardo
dated August 19, 1998, including specifically but without limitation, power and
authority to sign for me in my name in any and all capacities, any and all
amendments (including post-effective amendments) to such Registration Statement,
and I do hereby ratify and confirm all that the said attorneys and agents, or
their substitute or substitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ JOHN R. MORRIS
----------------------------------------
John R. Morris
Director
