<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 6, 2000
REGISTRATION NO. 333-92353
--------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2
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: [___]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SHARES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING PRICE AMOUNT OF
REGISTERED REGISTERED (1) SHARE (2) (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 March 6, 2000
PROSPECTUS
4,658,973 SHARES
BIGMAR, INC.
COMMON STOCK
-------------------------
We are registering 4,658,973 shares of our common stock for resale by the
sellers identified in "Selling Stockholders." The Selling Stockholders will
receive the proceeds from the resale of shares.
Our common stock is quoted on the Nasdaq SmallCap Marketsm under the symbol
"BGMR." On March 1, 2000, the closing price of our stock as quoted on the
Nasdaq SmallCap Market was $3.125 per share.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. 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.
---------------------------
March __, 2000
<PAGE>
BIGMAR, INC.
TABLE OF CONTENTS
<TABLE>
<S> <C>
Bigmar, Inc. ...................................... 3
Risk Factors............................................. 3
Forward-Looking Information.............................. 9
Selling Stockholders..................................... 9
Plan of Distribution..................................... 11
Validity of Stock.........................................12
Experts...................................................12
Available Information.....................................13
Information Incorporated by Reference.....................13
</TABLE>
2
<PAGE>
BIGMAR, INC.
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
UNCERTAINTY ABOUT OUR ABILITY TO CONTINUE IN BUSINESS.
The independent auditor's report on our financial statements for the
fiscal year ended December 31, 1998 indicates that there is substantial doubt
about Bigmar's ability to continue as a going concern. From our inception in
1995 through September 1999 we have incurred net losses totaling approximately
$21.3 million. To achieve profitable operations, we must alone or with others
successfully develop, manufacture, obtain regulatory approvals for, and market
existing and additional products.
WE WILL REQUIRE ADDITIONAL FUNDING TO CONTINUE OPERATIONS AND FACILITATE GROWTH.
Over 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 additional funds or achieve
profitability. Without more funding, we may not be able to continue
manufacturing and marketing our products, and may have to sell, suspend or
terminate operations.
DUE TO AN EXCLUSIVE AGREEMENT, WE MUST RELY ON ANOTHER COMPANY TO MARKET KEY
PRODUCTS.
We have given American Pharmaceutical Partners the exclusive right to
market and distribute, in the United States and Canada, three of our oncological
products in various dosages. Revenues from this arrangement comprise over
one-half of total company revenues. As a result, Bigmar:
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<PAGE>
- Cannot independently market products that are covered under
this agreement;
- Does not have control of marketing abilities or strategies;
and
- Cannot make other strategic alliances or collaborative
arrangements regarding a covered product.
The acceptance of the products in the marketplace is dependent upon
APP's ability to demonstrate the benefits of our products to the health care
community and to sell commercial quantities of our products at acceptable costs.
POTENTIAL INABILITY TO OBTAIN ESSENTIAL RAW MATERIALS MAY HARM OUR BUSINESS.
There are currently three suppliers from which we purchase the raw
materials needed to make our oncological products. Any disruption in one or more
of these sources poses potential risks, including:
- Inability to obtain an adequate supply of raw materials;
- Increased raw material or packaging component costs; and
- Problems with quality or timely delivery.
Any interruption in the supply of raw materials can hinder us from manufacturing
and selling our products. 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.
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
each year. PLM is believed to be the sole supplier of this particular type of IV
container, and termination of this favorable arrangement would harm our IV
solutions business.
LARGER COMPETITORS HAVE THE RESOURCES TO SUPPORT MANY SIMULTANEOUS REGULATORY
APPLICATIONS, IMPROVING THEIR CHANCES TO RECEIVE REGULATORY APPROVAL AND MARKET
GENERIC PRODUCTS FIRST.
We compete in the highly competitive generic injectable drug industry.
Our competitors include companies such as Bedford Laboratories, Bristol-Myers
Squibb Co., and Pharmacia & Upjohn, each of which has substantially greater
4
<PAGE>
experience and financial and other resources than us. 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.
EXTENSIVE GOVERNMENTAL REGULATIONS COULD INCREASE COSTS AND HINDER OUR ABILITY
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. 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. Delays in the approval
process or our inability to obtain regulatory approval of specific products
could adversely affect Bigmar's ability to market our products.
OUR OPERATIONS MAY BE RESTRICTED IF WE FAIL TO COMPLY WITH ENVIRONMENTAL LAWS
AND REGULATIONS IN SWITZERLAND.
Our Swiss facilities are subject to comprehensive environmental laws
and regulations governing air emissions, waste water discharge and solid and
hazardous waste disposal. While we anticipate expenditures in connection with
environmental matters from time to time, we cannot predict the extent or timing
of these expenses. Future administrative actions or liabilities arising from
environmental matters could restrict operations and impede profitability.
WE ARE SUBJECT TO FOREIGN TRADE RISKS RELATING TO THE CONTINUED DEVELOPMENT AND
MARKETING OF OUR PRODUCTS.
Risks that could impact significantly our ability to operate 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;
5
<PAGE>
- difficulties associated with enforcing agreements through
foreign legal systems; and
- trade protection measures such as customs duties and export
quotas.
OUR BUSINESS HAS A SUBSTANTIAL RISK OF PRODUCT LIABILITY CLAIMS, AND INSURANCE
MAY BE EXPENSIVE OR UNAVAILABLE.
The testing, clinical trials, manufacturing and marketing of our
products involve inherent 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. While 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. In some of our agreements with other
companies, we have 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.
THE MARKET FOR OUR PRODUCTS MAY DIMINISH DUE TO REIMBURSEMENT CHANGES OR
HEALTHCARE REFORM.
In the United States and other countries, sales of our products depend
in part upon the availability of reimbursement from third-party payors, which
include government health administration authorities, managed care providers,
and private health insurers. There are continuing efforts by governmental and
third-party payors to contain or reduce the costs of medical products and
services. Adoption of new legislation and regulations could further limit
reimbursement for our products. If third-party payors fail to provide adequate
coverage and reimbursement rates for our products, the market acceptance or
pricing of the products may be diminished.
ADVERSE FLUCTUATIONS IN CURRENCY EXCHANGE RATES MAY CAUSE LOSSES.
All of our revenues for fiscal years through December 31, 1998 and a
significant portion of our revenues for 1999 were derived from sales outside of
the U.S. Because our international operations are conducted in various foreign
currencies, we may be exposed to foreign currency exchange risks due to
fluctuations in the exchange rates between the foreign currencies and the U.S.
dollar.
6
<PAGE>
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.
IF KEY PERSONNEL LEAVE, WE COULD FAIL TO ACHIEVE OUR OBJECTIVES.
We are highly dependent on our small management team, including
manufacturing, marketing and corporate management personnel. The loss of key
personnel might significantly delay or prevent the achievement of our growth and
profitability objectives.
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.
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.
IF WE DO NOT MEET THE MAINTENANCE CRITERIA OF NASDAQ, OUR STOCK MAY BE DELISTED
RESULTING IN A MORE LIMITED MARKET.
Bigmar's common stock is quoted on the Nasdaq SmallCap Marketsm.
Failure to meet the continuing 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 sell or to obtain accurate quotations as to the market
value of the common stock. We also would face additional difficulties in raising
capital.
THERE MAY BE A DILUTIVE EFFECT ON OUR COMMON STOCK FROM THE CONVERSION OR
EXERCISE OF OTHER OUTSTANDING SECURITIES.
There are outstanding convertible notes and warrants to purchase Bigmar
common stock and preferred stock convertible into common stock. These conversion
and warrant rights, covering approximately 3 million shares of our common stock,
contain anti-dilution provisions providing for adjustments of the exercise price
and number of shares issuable upon the occurrence of certain events.
Additionally, the holders of the rights have been granted registration rights
upon exercise. The sale, or availability for sale, in the public market of the
7
<PAGE>
common stock underlying the conversion and warrant rights depress the market
price of our common stock.
WE DO NOT EXPECT TO PAY DIVIDENDS IN THE FORESEEABLE FUTURE.
We have never paid any dividends on our common stock. We do not
anticipate paying any cash dividends in the foreseeable future because:
- we have experienced losses since inception;
- we have significant capital requirements in the future; and
- we presently intend to retain future earnings, if any, to
finance the expansion of our business.
OTHER ISSUANCES OF PREFERRED STOCK COULD AFFECT THE INTERESTS OF EXISTING
STOCKHOLDERS
Bigmar's governing documents authorize the issuance of up to 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 issue,
without stockholder approval, preferred stock with dividend, liquidation,
conversion, voting or other rights that could adversely affect the voting power
or other rights of 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.
8
<PAGE>
FORWARD-LOOKING INFORMATION
This prospectus contains forward-looking statements concerning future
events or performance of our company. You should not rely excessively on these
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.
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 SHARES MAXIMUM NUMBER OF NUMBER OF SHARES PERCENT
BENEFICIALLY OWNED PERCENT OF SHARES BENEFICIALLY OWNED OF
SELLING STOCKHOLDER PRIOR TO OFFERING OUTSTANDING OFFERED AFTER OFFERING OUTSTANDING
<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 *
</TABLE>
9
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Banca del Gottardo 1,597,605(6) 15.5% 70,000 1,527,605 14.9%
Robert Goldstein (8) & 78,333(7) * 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 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.
(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.
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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:
- 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
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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.
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.
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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.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate 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;
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<PAGE>
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
This prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information provided in this prospectus or to
which we have referred you. We have not authorized anyone to provide you with
different information. The common stock will not be offered in any state where
an offer is not permitted. You should not assume that the information in this
prospectus is accurate as of any date other than the date on the cover of this
prospectus.
14
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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..................... $30,000.00
Miscellaneous...................... $2,500.00
---------
TOTAL.............................. $39,161.00
</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 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
15
<PAGE>
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
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).
(2) Included as an exhibit to the initial filing of this Registration
Statement on Form S-3 with the SEC on December 8, 1999.
16
<PAGE>
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 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.
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<PAGE>
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.
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<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 MARCH 6, 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, March 6, 2000
- ---------------------- President and Chief Executive Officer (Principal
JOHN G. TRAMONTANA Executive Officer)
/s/ PHILIPPE ROHRER Treasurer, Secretary and Chief Financial Officer March 6, 2000
- ------------------- (Principal Financial and Accounting Officer) and
PHILIPPE ROHRER Director
/s/ CYNTHIA R. MAY Vice President - Administration and Director March 6, 2000
- ------------------
CYNTHIA R. MAY
/s/ BERNARD KRAMER Director March 6, 2000
- ----------------------
BERNARD KRAMER
/s/ MASSIMO PEDRANI Director March 6, 2000
- ----------------------
MASSIMO PEDRANI
</TABLE>
19
<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
March 6, 2000
