SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ___)*
BIGMAR, INC.
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(Name of Issuer)
Common Stock, $.001 par value
(Title of Class of Securities)
089893-10-1
(CUSIP Number)
Norman Alpert, Esq.
Sonnenschein Nath & Rosenthal LLP
1221 Avenue of the Americas
New York, New York 10020-1089
(212) 768-6700
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
May 15, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. ?
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss.240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 13
SCHEDULE 13D
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CUSIP NO. 089893-10-1 Page 2 of 13
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Banca del Gottardo
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC, OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Switzerland
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NUMBER OF 7 SOLE VOTING POWER 7,201,667
SHARES ----------- -------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER 1,495,867(1)
OWNED BY ----------- --------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 7,201,667
REPORTING ----------- --------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER 1,495,867(1)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,697,534
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.2%
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14 TYPE OF REPORTING PERSON*
BK(2)
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION.
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(1) Held for the benefit of third parties or in customer or fiduciary accounts
over which the Bank has discretionary authority.
(2) The Reporting Person has received relief form the SEC to file as a
"Qualified Institutional Investor."
Item 1. Security and Issuer.
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This Statement on Schedule 13D relates to the Common Stock, par value $.001
per share (the "Shares"), of Bigmar, Inc., a Delaware corporation (the
"Issuer"). The address of the Issuer's principal executive offices is 9711
Sportsman Club Road, Johnstown, Ohio 43041.
Item 2. Identity and Background.
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This Statement on Schedule 13D is filed on behalf of Banca del Gottardo, a
Swiss bank (the "Bank" or the "Reporting Person"). The address of the principal
office of the Bank is Viale S. Franscini 8, CH-6901 Lugano, Switzerland. During
the past five years the Reporting Person has not, and, to the knowledge of the
Reporting Person, none of the executive officers or directors of the Reporting
Person has been, (i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of which
such person or entity was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws. The name, business address, citizenship and present principal
occupation or employment of each director and executive officer of the Reporting
Person are set forth on Annex A hereto.
Item 3. Source and Amount of Funds or Other Consideration.
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The major acquisitions by the Reporting Person (either for its own account
or for customer or fiduciary accounts) of beneficial ownership of the Issuer's
securities (including certain still outstanding derivative securities) were as
follows:
a) During February 2001, the Reporting Person acquired (either for their
own accounts or for customer or fiduciary accounts) from the Issuer beneficial
ownership of 6,150 units, each consisting of one share of Series B Convertible
Page 3 of 13
Preferred Stock (the "Series B Convertible Preferred Stock") and two warrants
(the "Warrants"), for approximately $6,150,000. Each share of Series B
Convertible Preferred Stock is currently convertible until December 31, 2005
into 666.6667 Shares at an adjusted conversion price of $1.50 per Share; any
Series B Convertible Preferred Stock still outstanding on December 31, 2005
automatically converts into Shares at this conversion price (i.e.,
666.6667-for-1). (Until December 31, 2002, each share of Series B Convertible
Preferred Stock was convertible into 500 Shares at a conversion price of $2.00
per Share). The Warrants have an exercise price of $2.00 per Share and are
exercisable until February 28, 2006. The Reporting Person currently beneficially
owns (either for its own account or for customer or fiduciary accounts) 5,960
shares of Series B Convertible Preferred Stock and 1,167,000 Warrants.
b) During November 2001, as subsequently adjusted in March 2002, pursuant
to a Subscription Agreement with the Issuer, the Reporting Person acquired
2,238,000 Shares for $1,000,000.
The Reporting Person used working capital to acquire the Shares acquired
for its own account and the funds of customer or fiduciary accounts (over which
the Reporting Person exercises investment discretion) to acquire for such
accounts the Shares acquired by these managed accounts.
Item 4. Purpose of the Transaction.
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The Reporting Person acquired beneficial ownership of, and currently holds
the Shares for, investment, either for its own account or for the managed
customer or fiduciary investment accounts over which the Bank shares investment
and voting power.
Page 4 of 13
The Bank, however, is also a lender to the Issuer. Pursuant to an October
1999 Note Purchase, Paying and Conversion Agency Agreement (the "Note Purchase
Agreement") between the Bank and the Issuer, relating to the Issuer's 4%
Convertible Notes due October 29, 2003 (the "4% Notes"), the Bank received the
right to nominate two directors to the Issuer's Board of Directors as long as
any of the Notes remain outstanding. The Bank did not attempt to exercise this
right until November 2001, when in the context of the Issuer's deteriorating
financial condition and a fight for control between two factions of the Issuer's
Board of Directors, the Bank attempted to exercise this right, at a special
meeting of the Board of Directors convened by one of the Board factions (the
"Tramontana Faction") on November 16, 2001. On or about December 4, 2001,
shortly after the competing factions had each commenced actions in the Court of
Chancery of the State of Delaware in and for New Castle County (the "Court"),
the Bank commenced an action in the Court, encaptioned Banca del Gottardo v.
Cynthia R. May and Bigmar, Inc. (Civil Action 19294), seeking, among other
things, (1) a declaration that the alleged removal of the directors of the
Tramontana Faction (including the Bank's two designees) by the rival Board
faction (the "May Faction") through stockholder written consents was invalid;
(2) a declaration that 2,000,000 shares allegedly purchased by the Bank are
issued and outstanding and must be counted in any election of directors or
requiring that such shares be issued to the Bank forthwith and any stockholder
consents (by the May Faction) after November 19, 2001 be invalidated; and (3) an
injunction against the May Faction from taking any actions which failed to
recognize the directors elected at the November 16, 2001 special meeting of the
Board of Directors convened by the Tramontana Faction (including the Bank's two
designees). The Bank's action was consolidated in the Court with the control
litigation between the two Board factions into a consolidated action encaptioned
In Re Bigmar, Inc. Section 225 Litigation (Consolidated Civil Action No.
Page 5 of 13
19289-NC). On April 5, 2002, the Court rendered its decision in a Memorandum
Opinion (the "Memorandum Opinion") followed by an Order and Final Judgment dated
April 15, 2002, among other things, invalidating the November 16, 2001 election
of the Bank's two designees to the Issuer's Board of Directors. The Court also
invalidated the stockholder actions purportedly taken by the May Faction, and
determined that the de jure directors and officers of the Issuer were those
persons in such offices on November 15, 2001, immediately prior to the hostile
actions taken by each of the Board Factions. Subsequent to the Court's decision,
the May Faction directors resigned. However, the remaining directors
(essentially the Tramontana Faction) did not elect any Bank designees to fill
Board vacancies, but, instead, elected two independent directors. The Bank
believes that it may be deemed to have attempted to influence control of the
Issuer beginning on or about November 12, 2001, when the Bank's then Chief
Financial Officer met with Mr. Tramontana (and with the managing partner of a
venture capital firm) concerning the Issuer's deteriorating financial condition
and discussed potential financing arrangements and the possibility of the Bank
appointing two directors pursuant to its right under the Note Purchase
Agreement. On November 15, 2001, the Bank's then Chief Financial Officer
notified Ms. May that the Bank intended to exercise its right to have two Board
members, which the Tramontana Faction attempted to effectuate at the November
16, 2001 Board meeting. Although the Bank retains its right to designate two
directors pursuant to the Note Purchase Agreement as long as the Notes (which
are due October 29, 2003) remain outstanding, it does not have any designees on
the Issuer's Board of Directors and does not currently intend to exercise its
right to designate such designees.
Page 6 of 13
As a major creditor of the Issuer, in addition to having substantial
shareholdings (see Item 5 below) in the Issuer for its own account and in
managed customer or fiduciary accounts, the Bank continues to have an active
interest that a solution be found for the Issuer's financial problems.
In addition to CHF 1,500,000 (currently approximately $1,129,000) of the 4%
Notes held by the Reporting Person (and an additional CHF 1,300,000 (currently
approximately $978,000) of the 4% Notes over which its has or shares investment
control), CHF 330,000 (currently approximately $248,000) of indebtedness to the
Bank is outstanding under a secured credit facility from the Bank to one of the
Issuer's Swiss operating subsidiaries, Bigmar Pharmaceutical S.A.
The Reporting Person intends to closely monitor and evaluate developments
at and prospects of the Issuer, and continue to evaluate its interest in, and
intentions with respect to, the Shares and the Issuer. Although it does not
currently have any specific plans therefor, the Reporting Person may at any time
and from time to time (1) acquire (for its account or for customer or fiduciary
accounts managed by it) additional Shares (subject to availability at prices
deemed favorable) in the open market, in privately negotiated transactions or
otherwise, (2) dispose (for its own account or for customer or fiduciary
accounts managed by it) of Shares at prices deemed favorable in the open market,
in privately negotiated transactions (which might or might not include
substantially all of the Shares beneficially owned by the Reporting Person) or
otherwise, (3) exercise its right to designate two directors (which right,
however, would expire upon repayment of the 4% Notes on their October 29, 2003
maturity date), (4) attempt to cause a stockholders meeting to be held (an
annual meeting of stockholders was last held on July 7, 2000), or (5) exercise
any of the rights the Bank may then have under its note or credit agreements
Page 7 of 13
with the Issuer and one of its Swiss subsidiaries, including demanding payment
when amounts thereunder are due, whether at stated maturity or upon acceleration
after any default, and enforcing its rights if a default occurs. Senior
executives of the Bank have discussed with senior executives of the Issuer
possible plans and proposals regarding the Issuer's financial problems. Since
the Reporting Person is a banker to, as well as creditor and large shareholder
of, the Issuer, the Reporting Person currently anticipates that such contact
with the Issuer regarding the Issuer's financial problems will continue.
Item 5. Interest in Securities of the Issuer.
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a) and b) The Bank for its own account beneficially owns 7,201,667 shares
(approximately 39.9% of outstanding Shares), of which 4,628,667 are Shares
issuable upon conversion of preferred stock, convertible notes or warrants, at
conversion or exercise prices which are very substantially above the current
market price of the Shares. The Bank would be deemed to have sole investment and
voting power over these 7,201,667 Shares. In customer and fiduciary accounts
managed by the Bank on a discretionary basis, the Bank may be deemed to
beneficially own an additional 1,495,867 Shares (approximately 8.3% of
outstanding Shares), of which 1,004,467 are Shares issuable upon conversion of
preferred stock, convertible notes or warrants, at conversion or exercise prices
which are very substantially above the current market price of the Shares. As a
result of its discretionary authority over these client accounts, the Bank would
be deemed to share investment and/or voting control over these Shares.
Accordingly, the Bank's total beneficial ownership of Shares is 8,697,534
(approximately 48.2% of outstanding Shares), of which 5,631,134 are Shares
issuable upon conversion of preferred stock, convertible notes or warrants, at
conversion or exercise prices which are very substantially above the current
market price of the Shares. The number of outstanding Shares is based on the
Page 8 of 13
last outstanding Shares number disclosed by the Issuer (10,168,973) in its Form
10-QSB for the Quarterly Period ended September 30, 2001, filed on November 15,
2001, to which has been added 2,238,000 Shares subsequently issued to the Bank
(see Item 3) and 5,631,134 Shares issuable to the Bank (or customer or fiduciary
accounts which it manages) upon conversion or exercise of derivative securities.
The Issuer may have issued additional Shares to other persons subsequent to the
above-mentioned 2001 Form 10-QSB. The outstanding Shares number also does not
reflect very substantial numbers of Shares which the Reporting Person believes
are issuable to other persons upon exercise of derivative securities held by
them.
In the past, portions of the Shares beneficially owned by the Bank were at
times held by its wholly-owned subsidiary, Gotthardfin Ltd., incorporated as an
international business company under the laws of the Bahamas.
To the knowledge of the Reporting Person, no director or executive officer
of the Reporting Person beneficially owns any Shares.
c) Neither the Reporting Person nor, to its knowledge, any of its directors
or executive officers, has engaged in any transactions in the Shares during the
past sixty days.
d) Under customer and fiduciary accounts managed on a discretionary basis
by the Bank, various persons have the right to receive or the power to direct
the receipt of dividends from, or proceeds from the sale of, the Shares. No such
interest relates to more than 5% of the Shares.
e) Not applicable
Item 6. Contracts, Arrangements, Understandings or Relationahips with Respect to
------ Securities of the Issuer.
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Reference is made to Item 3 for a brief description of the Series B
Convertible Preferred Stock and the Warrants. Copies of these items and of the
Note Purchase Agreement are attached hereto as Exhibits and are incorporated
herein by reference.
Page 9 of 13
Except as described above (including, without limitation, the indebtedness
of the Issuer and its subsidiaries to the Bank described in Item 4) and in
accordance with the Bank's standard forms of agreement with clients for
discretionary accounts, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) between the Reporting Person and any other
person with respect to any securities of the Issuer (including, but not limited
to, any contract, arrangement, understanding or relationship involving the
transfer or voting of any securities, finder's fees, joint ventures, loan or
option arrangements, puts or calls, guarantees of profits, divisions of profits
or loss, or the giving or withholding of proxies).
Item 7. Materials to be Filed as Exhibits.
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99.1 Note Purchase, Paying and Conversion Agency Agreement, dated
October 26, 1999, between the Issuer and the Bank
99.2 Certificate of Designations, Preferences and Rights of the Series
B Convertible Preferred Stock
99.3 Warrant, dated February 27, 2001
Page 10 of 13
SIGNATURES
After reasonable inquiry and to the best of the undersigned's knowledge and
belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: July 2, 2003
BANCA DEL GOTTARDO
By: /s/ Luca Soncini
-----------------------------------
Name: Luca Soncini
Title:Member of the Executive Board
By: /s/ Tiziano Pellandini
-----------------------------------
Name: Tiziano Pellandini
Title: General Manager
Page 11 of 13
Annex A
BANCA DEL GOTTARDO - LUGANO
BOARD OF DIRECTORS
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Name Business address Citizenship Principal business
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Claudio Generali Viale S. Franscini 8, 6901 Lugano (Switzerland) Swiss Chairman of the Board of
Directors
Renzo Respini Via Ferrucci Pelli 7, 6901 Lugano (Switzerland) Swiss lawyer
Henry Peter Via Somaini 10, 6900 Lugano (Switzerland) Swiss lawyer
Ulrich Grete Seefeldstr. 299, 8008 Zurich (Switzerland) Swiss Independent director of
companies
Peter Derendinger Bahnhofstrasse 27, 6430 Schwyz (Switzerland) Swiss Lawyer
Henry Pfister General Guisan-Quai 40, 8002 Zurich (Switzerland) Swiss Executive Director of
quoted Company
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BANCA DEL GOTTARDO - LUGANO
EXECUTIVE BOARD
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Name Business address Citizenship Principal business
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Marco Netzer Viale S. Franscini 8, 6901 Lugano (Switzerland) Swiss Chief Executive Officer
Nicola Mordasini Viale S. Franscini 8, 6901 Lugano (Switzerland) Swiss Head of Client Services
Division
Luca Soncini Viale S. Franscini 8, 6901 Lugano (Switzerland) Swiss Head of Group Corporate
Center Division
Antonio Sergi Viale S. Franscini 8, 6901 Lugano (Switzerland) Swiss/Italian Head of Investment
Services Division
Thomas Muller Viale S. Franscini 8, 6901 Lugano (Switzerland) Swiss Head of Financial & Risk
Management Division
Walter Etter Viale S. Franscini 8, 6901 Lugano (Switzerland) Swiss Head of IT and Operations
Division
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Page 12 of 13
Exhibit Index
99.1 Note Purchase, Paying and Conversion Agency Agreement, dated October
26, 1999, between the Issuer and the Bank
99.2 Certificate of Designations, Preferences and Rights of the Series B
Convertible Preferred Stock of the Issuer
99.3 Warrant, dated February 27, 2001.
Page 13 of 13