<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 26, 2000
REGISTRATION NO. 333-92353
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIGMAR, INC.
(EXACT NAME OF COMPANY 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
COMPANY'S PRINCIPAL EXECUTIVE OFFICES)
PHILIPPE ROHRER
SECRETARY, TREASURER AND CHIEF FINANCIAL OFFICER
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]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [ ]
<PAGE>
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ____ ]
CALCULATION OF REGISTRATION FEE
---------------------------------
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
TITLE OF SHARES TO BE AMOUNT TO BE OFFERING PRICE PER PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED (1) SHARE (2) AGGREGATE OFFERING PRICE (2) REGISTRATION FEE
------------------------ --------------- ------------------- ---------------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, $.001
par value 4,658,973 $2.57 $11,973,561 $3,161
</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 Rule 457(c), based on the average of the high
and low reported price of the Company's Common Stock on December 3, 1999.
The Company hereby amends the Registration Statement on such date or dates as
may be necessary to delay its effective date until the Company 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>
Subject to Completion, dated January 26, 2000
PROSPECTUS
4,658,973 SHARES
BIGMAR, INC.
COMMON STOCK
------------------
We are registering for resale 4,658,973 shares of our common stock on behalf
of selling stockholders identified in "Selling Stockholders."
Our common stock is quoted on the Nasdaq SmallCap Market-SM- under the symbol
"BGMR." On January 24, 2000, the closing price of our stock as quoted on the
Nasdaq SmallCap Market was $3.75 per share.
INVESTING IN OUR COMMON STOCK INVOLVES SEVERAL RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------------------
January __, 2000
<PAGE>
BIGMAR, INC.
TABLE OF CONTENTS
The Company............................................... 3
Risk Factors.............................................. 3
Forward-Looking Information............................... 11
Selling Stockholders...................................... 11
Plan of Distribution...................................... 13
Validity of Stock......................................... 14
Experts................................................... 14
Available Information..................................... 15
Information Incorporated by Reference..................... 15
You should rely only on the information contained or incorporated by reference
in the prospectus and in any prospectus supplement. No one has been authorized
to provide you with different information.
The shares of our common stock are not being offered in any jurisdiction where
the offer is not permitted.
Do not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date provided on the front
page of the documents.
<PAGE>
THE COMPANY
We manufacture generic pharmaceutical oncology products and
intravenous infusion solutions through our subsidiaries located in
Switzerland. We market these products in Europe, the United States and other
countries primarily through pharmaceutical company partners. Currently, we
have distribution rights to more than 20 generic oncology products.
Our corporate headquarters, including a research and development
laboratory, are located at:
9711 Sportsman Club Road
Johnstown, Ohio 43031-9141
(740) 966-5800
RISK FACTORS
OUR HISTORY OF CONTINUING LOSSES AND LIMITED CAPITAL RESERVES CREATES "GOING
CONCERN" UNCERTAINTY.
From our inception in 1995 through September 1999 we have incurred
net losses totaling approximately $21.1 million.
Even if we achieve profitable operations, we cannot assure you that
we will be able to sustain such profitability and continue as a going concern.
Within the next 12 months, we will need to raise substantial
additional funds to continue to pay for operating expenses and our expansion
strategy. We cannot guarantee that we will be able to obtain these additional
funds. Without more funding, we may not be able to continue manufacturing and
marketing our products.
WE RELY HEAVILY UPON AN AGREEMENT WITH PLM, A PHARMACEUTICAL CONTAINER
MANUFACTURER, IN OUR IV SOLUTIONS BUSINESS.
Bioren, a subsidiary of Bigmar, acquired the exclusive right through
2005 to purchase intravenous solution containers from PLM Langeskov A/S and
to package and distribute intravenous infusion solutions in those containers
in Switzerland and Liechtenstein. PLM can cancel Bioren's exclusive right to
these containers if, among other things, Bioren does not purchase a minimum
number of the containers each year. The agreement can be terminated by either
PLM or Bioren if the products or their production infringe, or are alleged to
infringe, the intellectual property rights of a third party. PLM is believed
to be the sole
<PAGE>
supplier of this type of IV container, and termination of the agreement would
have a material adverse effect on Bigmar.
DUE TO EXCLUSIVE RIGHTS AGREEMENTS, WE CANNOT INDEPENDENTLY MARKET OUR PRODUCTS.
We have given other companies the exclusive right to market and
distribute, in various territories, our oncological products as well as the
right of first refusal to market and distribute other products in such areas.
As a result, Bigmar:
- Cannot independently market products that are covered under these
agreements;
- Does not have control of marketing abilities or strategies; and
- Cannot make any other strategic alliances or collaborative
arrangements regarding a product which is covered by an exclusive
deal or right of first refusal.
The acceptance of our product in the marketplace is dependent upon
our collaborators' ability to demonstrate the benefits of our products to the
medical and health care communities and to sell commercial quantities of our
products at acceptable costs.
WE ARE DEPENDENT ON LIMITED SUPPLIERS FOR RAW MATERIALS ESSENTIAL FOR
MANUFACTURING OUR PRODUCTS.
There are a limited number of suppliers from which we can purchase
the raw materials needed to make our products. This dependence on our suppliers
poses potential material risks, including:
- Obtaining an adequate supply of raw materials;
- Increased raw material or component costs;
- Reduced control over pricing; and
- Quality and timely delivery.
Any interruption in the supply of raw materials can hinder us from making and
selling our products and would have a material adverse effect on us. In
addition, obtaining raw materials from a new source may require regulatory
approval. Further, we may not be able to do business with all potential
alternative suppliers as some of them may have exclusive relationships with
our competitors.
<PAGE>
BIGMAR FACES COMPETITION FROM LARGER COMPETITORS.
We face competition from other pharmaceutical companies, most of
which have substantially greater financial and other resources and can afford
to spend more than us on 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, it does have the resources to support many simultaneous
regulatory applications, improving its chances at being the first to receive
approval. We also face competition from other drug companies who introduce
generic versions of their own products just before the patents for their
products expire.
PATENTS AND PROPRIETARY RIGHTS OF OTHER COMPANIES MAY PREVENT US FROM MAKING
AND SELLING OUR PRODUCTS.
We are unaware of any claims against us for infringement. However,
our ability to commercialize our products and proposed products depends on
our not infringing the proprietary rights of competitors. Patents concerning
pharmaceutical products are often uncertain and involve complex legal,
scientific and factual questions. Laws regarding the enforceability of
intellectual property also vary from country to country. We have no assurance
that intellectual property issues will be uniformly resolved or that local
laws will provide us with consistent rights and benefits.
WE NEED TO COMPLY WITH GOVERNMENTAL REGULATIONS TO DEVELOP, MANUFACTURE AND
MARKET OUR PRODUCTS.
The development, manufacturing and marketing of our products are
subject to extensive and rigorous governmental regulations in the U.S. and
other countries. The process of obtaining and maintaining required regulatory
approvals is lengthy, expensive and uncertain. Since our products are
primarily sold in Switzerland and Germany, we are subject to regulation by
these countries and the European Medicines Evaluation Agency of the European
Union. We cannot be certain that we will maintain the required regulatory
approvals to market our products in either Germany or Switzerland. In the
U.S., the FDA regulates the development, testing, labeling, manufacturing,
registration, notification, clearance or approval, marketing, distribution,
record-keeping and reporting requirements for drugs. To date, we have:
- Received approval from the FDA to market seven of our products in
the U.S.; and
- Submitted abbreviated new drug applications to the FDA for
additional generic oncological products.
<PAGE>
We cannot be certain of obtaining the regulatory approval required for
marketing specific products in the U.S. Delays in any part of the approval
process or our inability to obtain regulatory approval of our products could
adversely affect us.
We are subject to the FDA's current good manufacturing practices,
current good laboratory practices and extensive record-keeping and reporting
requirements for manufacturing products for sale in the U.S. As a result, our
facilities are subject to periodic inspections. If we fail inspections, we
could suffer import detentions, fines, civil penalties, suspensions or losses
of approvals, recalls or seizures of products, operating restrictions and
criminal prosecutions.
SWISS REQUIREMENTS ON RETAINED EARNINGS MAY LIMIT CASH FLOW.
Bigmar is a Delaware corporation which owns 100% of the capital
stock of two Swiss corporations. According to the Swiss Federal Code of
Obligation, at least 5% of a Swiss company's net income each year must be
appropriated to a legal reserve until the reserve equals 20% of the company's
paid-in share capital. Additionally, 10% of any distribution made by a
company in excess of a 5% dividend must also be appropriated to the company's
legal reserve. The reserve of up to 50% of the share capital is not available
to stockholders. While these requirements have been met, they may adversely
impact the amount of dividends to be obtained by Bigmar through its
subsidiaries and may limit cash flow.
BIGMAR IS SUBJECT TO ENVIRONMENTAL LAWS AND REGULATIONS IN SWITZERLAND.
Since we do business in Switzerland, our facilities are subject to
comprehensive environmental laws and regulations governing air emissions,
waste water discharge and solid and hazardous waste disposal. Although we
cannot be sure, we believe our current facilities are in compliance with all
applicable Swiss environmental laws. However, since these laws have recently
changed, we may be subject to increasingly stringent environmental standards
in the future. While we anticipate capital expenditures in connection with
environmental matters from time to time, we cannot predict the extent or
timing of these expenses. We cannot be sure that future developments,
administrative actions or liabilities arising from environmental matters will
not have a material adverse effect on us.
WE ARE DEPENDENT UPON THIRD-PARTY REIMBURSEMENT WHICH MAY AFFECT THE PRICE OF
OUR PRODUCTS.
Our success in generating revenues from the sale of certain drugs
may depend on the extent to which reimbursement for the costs of such
products will be available from third-party payors such as government health
administration authorities, private insurance companies, self-insured
employers and health
<PAGE>
maintenance organizations. Our level of revenues and profitability 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.
There is risk that payments under governmental and third-party payor
programs will drop below current levels or, in the future, become
insufficient to cover the costs allocable to patients eligible for
reimbursement pursuant to such programs.
DEVELOPING NEW PHARMACEUTICAL PRODUCTS INVOLVES PRODUCT LIABILITY RISKS FOR
WHICH WE CURRENTLY HAVE LIMITED INSURANCE COVERAGE.
The testing, clinical trials, manufacturing and marketing of our
products involve risks of product liability claims by consumers and other
third parties. Although we currently maintain product liability insurance
coverage which we believe is adequate, we cannot be certain that it is
adequate or that all such claims will be covered. These policies must be
renewed every four years. We have successfully renewed our policies in the
past, but may not be able to do so in the future. Product liability insurance
varies in cost, is difficult to obtain and may not be available in the future
on terms acceptable to us. A successful product liability claim or other
judgment against us in excess of our insurance coverage could have a material
adverse effect on us and our reputation. In some of our agreements with other
companies, we have cross indemnification provisions with respect to product
liability claims concerning products covered by the agreements. Under such
agreements, we may be required to make payments which in some cases could be
substantial.
OUR PRODUCTS FACE THE RISK OF SUDDEN RECALL AND LIABILITY CLAIMS.
Drug products manufactured and sold by us may be subject to recall
for unforeseen reasons, which may have a material adverse effect on our sales
and reputation. In Germany, an injured party may recover for damages on a
strict liability basis without proving negligence on the part of the
manufacturer or distributor. In Switzerland, there is no special product
liability law for drugs. The Swiss federal liability product law, which
covers drug products, provides that manufacturers are subject to strict
liability for injuries caused by defective products.
FLUCTUATIONS IN CURRENCY EXCHANGE RATES MAY MATERIALLY AND ADVERSELY AFFECT US.
All of our revenues for fiscal years through December 31, 1998, were
derived from sales outside of the U.S. Because our international operations are
<PAGE>
conducted in various foreign currencies, we may be affected by fluctuations
in currency exchange rates. We 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 we carry out hedging transactions, there
is no guarantee that we will be successful.
WE ARE DEPENDENT ON KEY PERSONNEL.
We depend on the experience, abilities and performance of a small
corp of key personnel, including John G. Tramontana, chairman of the board,
president and chief executive officer. We have a five-year employment
agreement with Mr. Tramontana which expires in 2001, and have obtained a
$2,000,000 key-man life insurance policy on the life of Mr. Tramontana. The
loss or reduction of services of Mr. Tramontana or other key personnel
could have a material adverse effect on us. Our future success depends on our
ability to attract and retain highly qualified personnel, including
experienced manufacturing, research and development personnel. We face
competition for such personnel from companies that have significantly greater
resources than us.
SINCE OUR DIRECTORS AND EXECUTIVE OFFICERS BENEFICIALLY OWN IN EXCESS OF
TWO-THIRDS OF OUR COMMON STOCK, THEY CAN CONTROL THE OPERATION OF OUR
BUSINESS.
Bigmar's directors and executive officers beneficially own in excess of
two-thirds of the outstanding common stock. Accordingly, these directors and
officers are in a position to control the management and policies of Bigmar in
general. They can also determine the outcome of many corporate transactions or
matters submitted to stockholders for approval.
INVESTORS MAY NOT BE ABLE TO ENFORCE CIVIL JUDGMENTS.
With substantially all of our assets located outside of the U.S., it
may be difficult for investors to enforce judgments against us obtained in
the U.S. courts, including judgments based on the civil liability provisions
of the U.S. securities laws. The U.S. does not currently have a treaty
providing reciprocal recognition and enforcement of judgments in civil and
commercial matters with Switzerland or Germany and there is doubt whether:
- A final judgment for the payment of money rendered by a federal or
state court in the U.S. based on civil liability would be
enforceable in Switzerland or Germany against Bigmar; and
- An action could be brought in Switzerland or Germany against
Bigmar on the basis of liability predicated solely upon the
provisions of the U.S. securities laws.
<PAGE>
IF WE DO NOT MEET THE MAINTENANCE CRITERIA OF NASDAQ, OUR STOCK MAY BE DELISTED.
Bigmar's common stock is quoted on the Nasdaq SmallCap Market-SM-.
However, there is no guarantee that we 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 our common stock not
being listed on Nasdaq. In such an event, investors may find it more
difficult to dispose of, or to obtain accurate quotations as to the market
value, of the common stock and we may face significant difficulties in raising
additional capital on favorable terms, if at all.
THE ISSUANCE OF PREFERRED STOCK CAN DILUTE THE RIGHTS OF STOCKHOLDERS AND THE
MARKET PRICE OF OUR STOCK.
Bigmar's governing documents authorize the issuance of a maximum of
5,000,000 shares of preferred stock with designations, rights and preferences
as determined from time to time by the board of directors. The board can
therefore issue, without stockholder approval, preferred stock with dividend,
liquidation, conversion, voting or other rights that could adversely affect
the voting power or the rights of the common stockholders. The issuance of
preferred stock could:
- Discourage, delay or prevent a change in control of Bigmar.
- Dilute the rights of common stockholders.
- Dilute the market price of the stock.
AS A SMALL PHARMACEUTICAL COMPANY, WE HAVE LIMITED RESOURCES TO EFFECTIVELY
MITIGATE POTENTIAL RISKS RELATING TO THE FOREIGN SALES OF OUR PRODUCTS.
We are subject to various foreign trade risks relating to the
continued development and marketing of our products. Certain risks that could
impact significantly our ability to deliver products include:
- changes in the regulatory and competitive environments in foreign
countries;
- changes in a specific country's or region's political or economic
conditions;
- shipping delays;
- difficulties in managing operations across disparate geographic
areas;
- fluctuations in foreign currency exchange rates;
<PAGE>
- difficulties associated with enforcing agreements through foreign
legal systems; and
- trade protection measures such as customs duties and export
quotas.
THERE MAY BE A DILUTIVE EFFECT ON OUR COMMON STOCK FROM THE CONVERSION OR
EXERCISE OF OTHER OUTSTANDING SECURITIES.
In May 1998, Jericho II L.L.C. agreed to guarantee a line of credit
up to $6 million from a commercial institution. In consideration of this
guarantee, we issued warrants to Jericho to purchase one million shares of
convertible preferred stock at a price per share equal to $2.5626 with a term
of 10 years. This preferred stock can be converted to common stock on a
one-to-one basis, with such conversion rate to adjust to reflect any diluting
issuance of equity securities by us and also to adjust for stock splits,
dividends, combinations and similar events. This preferred stock is entitled
to five votes per share in addition to having certain special approval
rights. The preferred stock has a liquidation preference equal to the
purchase price per share. The shares issuable on exercise are entitled to
piggyback registration rights, subject to standard underwriter's cutback.
John Tramontana, Chairman and Chief Executive Officer of Bigmar, has
a 50% ownership interest in Jericho. Cynthia R. May, a director and vice
president, is the managing member of Jericho.
We have also granted outstanding warrants to purchase shares of common
stock as follows:
- LT Lawrence Co., Inc., the underwriter for our initial public
offering and individuals then associated therewith--167,000
shares;
- Jericho--500,000 shares; and
- The Equity Group, Inc.--45,000 shares.
All of these 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. Additionally, the
holders of the warrants have been granted certain registration rights upon
exercise of the warrants. 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 our common stock and could impair our ability to
raise additional capital.
FORWARD-LOOKING INFORMATION
This prospectus contains forward-looking statements concerning
future events or performance of our company. You should not rely excessively
on these
<PAGE>
forward-looking statements, because they are only predictions based on our
current expectations and assumptions. Forward-looking statements often
contain words like "estimate," "anticipate," "believe" or "expect." Many
known and unknown risks and uncertainties could cause our actual results to
differ materially from those indicated in these forward-looking statements.
You should review carefully the risks and uncertainties identified in this
prospectus, including those explained above and in our other SEC filings such
as our Form 10-K for the fiscal year ended December 31, 1998. We have no
obligation to update or announce revisions to any forward-looking statements
to reflect actual events or developments.
<PAGE>
SELLING STOCKHOLDERS
The table below lists the selling stockholders and other information
regarding the beneficial ownership of shares of common stock. Except as
otherwise disclosed in this prospectus, the selling stockholders neither have
nor within the past three years had any position, office or other material
relationship with our company or any of its predecessors or affiliates. The
selling stockholders may offer all or a portion of the shares of common stock
registered by this prospectus.
Beneficial ownership is determined in accordance with SEC rules and
generally includes voting or investment power with respect to securities.
<TABLE>
<CAPTION>
NUMBER OF
MAXIMUM SHARES
NUMBER OF BENEFICIALLY PERCENT
NUMBER OF SHARES BENEFICIALLY PERCENT OF SHARES OWNED OF
SELLING STOCKHOLDER OWNED PRIOR TO OFFERING OUTSTANDING OFFERED AFTER OFFERING OUT-STANDING
<S> <C> <C> <C> <C> <C>
Jericho II, L.L.C. (1) 6,607,805 (2) 63% 3,692,308 2,915,497 27.8%
Patrick G. Wolgast 10,000 * 10,000 0 ---
GRQ, LLC (3) 184,266 2% 166,666 17,600 *
Tietje Bros. (4) 54,000 * 40,000 14,000 *
John A. Horner 20,000 * 20,000 0 ---
JJS Wolf Realty, LLC (5) 10,000 * 10,000 0 ---
Leif H. Perkhild 250,000 2.8% 250,000 0 ---
John S. Hodgson 43,333 * 33,333 10,000 *
Banca del Gottardo 1,597,605(6) 15.5% 70,000 1,527,605 14.9%
Robert Goldstein (7) 78,333(8) * 33,333 45,000 *
& Judy Goldstein
Janet A. Baldauf (9) 333,333 3.7% 333,333 0 ---
</TABLE>
* Less than one percent (1%).
(1) Jericho is a privately-owned company involved in investment
activities. Cynthia R. May, a Director and Vice President of the
Company, is the managing member of Jericho with sole voting and
investment power with respect to the shares of common stock held
thereby. John G. Tramontana, Chairman and Chief Executive Officer
of Bigmar, is also a member of Jericho, which is Bigmar's largest
stockholder.
<PAGE>
(2) Includes (i) 500,000 shares of common stock issuable upon exercise
of warrants, (ii) 1,000,000 shares of common stock issuable upon
exercise and conversion of Preferred Stock warrants, and (iii) 184,266
shares owned by GRQ, LLC (see Note (3)).
(3) GRQ, LLC is a privately-owned company involved in investment
activities. Cynthia R. May is also the managing member of GRQ, LLC with
sole voting and investment power with respect to the shares of common
stock held thereby.
(4) The principals of Tietje Bros. with voting and investment power
with respect to the shares of common stock held thereby are Dennis
Tietje and Erwin Tietje.
(5) The principal of JJS Wolf Realty, LLC with voting and investment
power with respect to the shares of common stock held thereby is John
Wolf.
(6) Includes (i) 761,905 shares of common stock issuable upon
conversion of convertible notes issued in August 1997, and (ii)
528,000 shares of common stock issuable upon conversion of convertible
notes issued in November 1999.
(7) Mr. Goldstein is a principal of The Equity Group Inc., which has
been engaged by Bigmar since 1996 to provide public relations and
investor relations services.
(8) Includes 45,000 shares issuable upon exercise of warrants held by
The Equity Group, Inc.
(9) Ms Baldauf is the mother of Cynthia R. May. Ms. May disclaims
beneficial ownership of the shares of common stock held by Ms. Baldauf.
PLAN OF DISTRIBUTION
The selling stockholders have advised us that they may offer the shares
of common stock registered under this prospectus to purchasers from time to
time:
- in transactions in the Nasdaq SmallCap Market, in negotiated
transactions, or by a combination of these methods;
- at fixed prices that may be changed; at market prices prevailing at
the time of the resale;
- at prices related to such market prices; or
- at negotiated prices
At the date of this prospectus, the selling stockholders have not
entered into any underwriting arrangements. The selling stockholders may sell
the shares registered under this prospectus through:
<PAGE>
- ordinary brokers' transactions;
- transactions involving cross or block trades or otherwise on the
Nasdaq SmallCap Market;
- purchases by brokers, dealers or underwriters who may receive
compensation in the form of discounts or commissions from the
selling stockholders or the purchasers of these shares, for whom
the broker-dealers may act as agent or principal, or both;
- any combination of the foregoing.
In effecting sales, the brokers or dealers which the selling
stockholders have engaged may arrange for other brokers or dealers to
participate. Brokers and dealers will receive commissions or discounts from
the selling stockholders in amounts negotiated prior to the sale. The selling
stockholders and any brokers or dealers participating in the distribution of
the shares may be deemed "underwriters" in connection with these sales. Any
commissions or profits they receive may be seen as underwriting discounts or
commissions under the Securities Act.
The selling stockholders may agree to protect these broker-dealers
from liability, with respect to these shares being offered. Any underwriters,
brokers, dealers and agents who participate in any sale may also be our
customers, engage in transactions with us, or perform services for us or our
selling stockholders.
We will pay substantially all of the expenses relating to the
registration, offer and sale of the shares of common stock registered under
this prospectus to the public other than commissions or discounts of
underwriters, broker-dealers or agents. We also have agreed to indemnify the
selling stockholders and certain related persons against any losses, claims,
damages or liabilities under the Securities Act or otherwise that
arise out of, or are based upon, any untrue or alleged untrue statement of a
material fact or the omission or alleged omission instating a material fact
under this registration.
To the extent that indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and
controlling persons, we have been advised that, in the opinion of the SEC,
this indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable.
VALIDITY OF STOCK
The validity of the shares offered hereby have been passed upon for our
company by Bricker & Eckler LLP, Columbus, Ohio.
<PAGE>
EXPERTS
The consolidated financial statements of Bigmar, Inc. and
subsidiaries as of December 31, 1998 and 1997, and for each of the years in
the three-year period ended December 31, 1998, included in our Annual Report
on Form 10-K for the fiscal year ended December 31, 1998, have been
incorporated by reference in this prospectus in reliance upon the report of
KPMG LLP, independent certified public accountants, also incorporated by
reference herein, and upon the authority of the firm as experts in accounting
and auditing. The report of KPMG LLP states we have suffered recurring losses
from operations, and anticipates we will require additional financing in
order to fund continuing operations. These factors raise substantial doubt
about Bigmar'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.
AVAILABLE INFORMATION
We are subject to the reporting requirements of the Securities Exchange
Act of 1934, and file reports, proxy statements and other information with the
SEC. Such information 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 at
prescribed rates from the Public Reference Section of the SEC at 450 Fifth
Street, N.W., Washington, D.C. 20549. Additional information regarding the
operation of the public reference facilities may be obtained by
calling the SEC at 1-800-SEC-0330. Access to such information is also available
from the SEC's website (http://www.sec.gov).
Reports and other information concerning Bigmar can also be
inspected at The Nasdaq Stock Market, Inc., 1735 K Street, Washington, D.C.
20006.
We have filed with the SEC a Registration Statement on Form S-3
under the Securities Act with respect to the shares offered by this
prospectus. In accordance with the rules and regulations of the SEC, this
prospectus omits certain of the information contained in the registration
statement. Statements made in this prospectus 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 SEC. Each such statement is qualified
in its entirety by such reference.
<PAGE>
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incoporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference
is considered to be part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this information.
We incorporate by reference the documents listed below and any future filings
we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until this offering is finished.
1. Our Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
2. Our Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1999;
3. Our Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 1999;
4. Our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 1999;
5. Our Proxy Statement for the Annual Meeting of Stockholders held on
June 30, 1999, filed as of April 30, 1999; and
6. The description of our common stock contained in our registration
statement on Form S-1, declared effective June 19, 1996.
We will provide complimentary copies of these documents upon
request. To request a copy, please contact:
Investor Relations
Bigmar, Inc.
9711 Sportsman Club Road
Johnstown, Ohio 43031-9141
(740) 966-5800
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the sale and distribution of the securities
being registered, other than underwriting compensation, are set forth in the
following table. All amounts are estimated except the Securities and Exchange
Commission registration fee.
<TABLE>
<S><C>
SEC Filing Fee for Registration Statement... $3,161.00
Accounting Fees and Expenses................ $3,500.00
Legal Fees and Expenses..................... $20,000.00
Miscellaneous............................... $2,500.00
---------
TOTAL....................................... $29,161.00
</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 officer, other than an
<PAGE>
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.
It is the position of the SEC 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)
5.1 Opinion of Bricker & Eckler LLP regarding the validity of the
securities being registered (2)
23.1 Consent of KPMG LLP (2)
23.2 Consent of Bricker & Eckler LLP (included in Exhibit 5.1)
24 Power of Attorney (2)
(1) Incorporated by reference from the Company's Form 10-K Annual
Report for the fiscal year ended December 31, 1998 (File No.
1-14416).
<PAGE>
(2) Included as an exhibit to the initial filing of this Registration
Statement on Form S-3 with the SEC on December 8, 1999.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Company 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 Company
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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Company'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
<PAGE>
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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 COMPANY
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 COUVET, COUNTRY OF SWITZERLAND, ON JANUARY 26, 2000.
BIGMAR, INC.
BY: /S/ PHILIPPE ROHRER
-------------------
PHILIPPE ROHRER
TREASURER, SECRETARY, CHIEF FINANCIAL
OFFICER AND CHIEF ACCOUNTING 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>
/S/ JOHN G. TRAMONTANA Chairman of the Board of Directors, January 26, 2000
- ----------------------
JOHN G. TRAMONTANA President and Chief Executive Officer (Principal
Executive Officer)
/S/ PHILIPPE ROHRER Treasurer, Secretary and Chief Financial Officer January 26, 2000
- -------------------
PHILIPPE ROHRER (Principal Financial and Accounting Officer), and
Director
/S/ CYNTHIA R. MAY Vice President - Administration and Director January 26, 2000
- ------------------
CYNTHIA R. MAY
/S/ BERNARD KRAMER Director January 26, 2000
- ----------------------------
BERNARD KRAMER
/S/ MASSIMO PEDRANI Director January 26, 2000
- ---------------------------
MASSIMO PEDRANI
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<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 (2)
23.1 Consent of KPMG LLP
23.2 Consent of Bricker & Eckler LLP (2)
24 Power of Attorney (2)
</TABLE>
(1) Incorporated by reference from the Company's Form 10-K Annual
Report for the fiscal year ended December 31, 1998 (File No.
1-14416).
(2) Included as an exhibit to the initial filing of this Registration
Statement on Form S-3 with the SEC on December 8, 1999.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Bigmar, Inc.
We consent to the use of our report incorporated herein by reference and to
the reference of our firm under the heading "Experts" in the Prospectus and
Registration Statement on Form S-3, as amended. Our report dated March 5,
1999 contains an explanatory paragraph that states the Company has suffered
recurring losses from operations, and anticipates it will require additional
financing in order to fund its operations during 1999. 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 this uncertainty.
/s/ KPMG LLP
Columbus, Ohio
January 26, 2000
