SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES AND EXCHANGE ACT OF 1934
APRIL 5, 2002
Date of Report (Date of Earliest Event Reported)
BIGMAR, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 001-14416 31-1445779
(State or Other Jurisdiction of (Commission (I.R.S. Employer
Incorporation or Organization) File No.) Identification No.)
9711 SPORTSMAN CLUB ROAD, JOHNSTOWN, OHIO 43031
(Address of Principal Executive Offices and Zip Code)
740-966-5800
(Registrant's telephone number, including area code)
NOT APPLICABLE
(Former name or former address, if changed from last report)
ITEM 5. OTHER EVENTS.
DECISION AND ORDER AND FINAL JUDGMENT IN THE CONTROL LITIGATION
DECISION IN THE CONTROL LITIGATION
On April 5, 2002, the Court of Chancery of the State of Delaware, in
and for New Castle County (the "Chancery Court"), rendered its decision in a
certain control litigation matter involving Bigmar, Inc., a Delaware corporation
(the "Company") (the "Control Litigation") encaptioned IN RE BIGMAR, INC.,
SECTION 225 LITIGATION, Consolidated Civil Action No. 19289-NC, in a Memorandum
Opinion (the "Opinion"), which Control Litigation has been disclosed in the
Company's Current Report on Form 8-K filed as of December 31, 2001 (the
"December 8-K").
The Chancery Court held that the DE JURE directors and officers of the
Company are those persons who occupied those respective offices on November 15,
2001, i.e. directors John G. Tramontana, Massimo Pedrani, Philippe J.H. Rohrer,
Bernard Kramer, Declan Service, Cynthia R. May, John S. Hodgson, Timothy Carroll
and Kevin Ryan, and Cynthia R. May as President of the Company.
The Chancery Court was unable to conclude that the November 16-18, 2001
special meetings of the Company's Board of Directors attended by certain
directors of the Company (the "November Special Meeting") were validly commenced
and conducted, thus, invalidating all actions taken at the November Special
Meeting. Actions taken at the November Special Meeting thus invalidated included
(i) enlargement of the Board of Directors and election of two directors, Frank
DeLape and Christopher Efird, to fill newly created director seats in accordance
with the terms of the October 26, 1999 Note Purchase, Paying and Conversion
Agency Agreement by and between the Company and Banca del Gottardo, a bank
organized under the laws of Switzerland ("BDG"); (ii) approval of the proposed
sale and issuance of up to 4,000,000 shares of the Company's common stock to BDG
for an aggregate maximum consideration of US $2,000,000; (iii) termination of
the Company's former counsel and retention of new counsel; (iv) removal of
Cynthia R. May as the President and Secretary of the Company and appointment of
Messrs. John G. Tramontana and Philippe J.H. Rohrer to hold those offices,
respectively; (v) removal of Cynthia R. May as a member of the Executive
Committee of the Company; (vi) cancellation of the annual meeting of the
Company's stockholders scheduled for December 14, 2001; and (vii) change in the
bylaws requiring a supermajority of votes to amend bylaws and to vote to remove
a director, with or without a cause.
The Chancery Court also did not uphold the validity of stockholder
consents executed by certain stockholders of the Company on November 26 and 28,
2001 (the "Stockholder Consents"). The finding with respect to invalidity of the
Stockholder Consents effectively invalidated the actions to remove Massimo
Pedrani, Phillippe J.H. Rohrer, John G. Tramontana, Bernard Kramer and Declan J.
Service; Frank DeLape and Christopher Efird (Messrs. Efird and DeLape having
purportedly been appointed to the Board in the invalidated November 16, 2002
meeting) as directors of the Company, taken by certain stockholders of the
Company on November 26 and 28, 2001 as disclosed in the December 8-K.
ORDER AND FINAL JUDGMENT
On April 15, 2002, the Chancery Court entered an Order and Final
Judgment on the basis of and for the reasons set forth in the Opinion in the
Control Litigation (the "Final Judgment"). The Final Judgment stated that: (i)
DE JURE directors of the Company are those persons in office on November 15,
2001, including Cynthia R. May, John G. Tramontana, Massimo Pedrani, Philippe
J.H. Rohrer, Bernard Kramer, Declan Service, John S. Hodgson, Timothy Carroll
and Kevin Ryan. The DE JURE officers of the Company are those persons in office
on the same date; (ii) the Status Quo Order in the Control Litigation entered by
the Chancery Court on December 20, 2001 (the "SQO") is dissolved and is no
further in effect, and (iii) each party to the Control Litigation is to bear
one-third (1/3) of court costs.
As of the date of this filing, none of the parties to the Control
Litigation has appealed the Final Judgment.
THE FOREGOING IS A SUMMARY DESCRIPTION OF THE OPINION AND THE FINAL
JUDGMENT AND BY ITS NATURE IS INCOMPLETE. THE DESCRIPTIONS OF THE OPINION AND
THE FINAL JUDGMENT ARE QUALIFIED IN THEIR ENTIRETY BY THE TEXTS OF THE OPINION
AND THE FINAL JUDGMENT, TRUE COPIES OF WHICH ARE ATTACHED HERETO AS EXHIBIT 99.7
AND 99.8, RESPECTIVELY. ALL READERS OF THIS CURRENT REPORT ARE ENCOURAGED TO
READ THE ENTIRE TEXT OF THE OPINION AND THE FINAL JUDGMENT ATTACHED HERETO.
FILING OF THE ANNUAL REPORT FOR THE FISCAL YEAR ENDED DECEMBER 31, 2001
The Company has been unable to file timely its Annual Report on Form
10-K (the "Annual Report") for the fiscal year ended December 31, 2001 within
the prescribed time period pending the outcome in the Control Litigation as
described above. The Company management reasonably expected that the outcome in
the Control Litigation would have a material effect upon the Company's financial
statements and disclosure to be included in the Annual Report. Moreover, the
Company's independent accountants, KPMG LLP ("KPMG"), resigned effective as of
January 11, 2002. The KPMG resignation is disclosed in an Item 4 Current Report
on Form 8-K filed by the Company as of January 25, 2002.
The Board of Directors of the Company (the "Board") considered the
issues of retaining a new independent auditor and the preparation of the Annual
Report at the Special Meeting (as the term is defined below under "Special
Meeting of The Board of Directors of April 16, 2002"). The Board noted that the
Company is late with the filing of the Annual Report and determined to retain a
successor independent auditor to conduct the audit to enable the Company to file
the Annual Report as soon as possible.
RESIGNATION OF DIRECTORS
Cynthia R. May, Timothy Carroll and Kevin Ryan resigned as directors of
the Company effective April 15, 2002. As of April 15, 2002 the Board consisted
of six (6) directors and three (3) vacancies.
SPECIAL MEETING OF THE BOARD OF DIRECTORS OF APRIL 16, 2002
On April 16, 2002, the Board held a special meeting (the "Special
Meeting"), attended in person by Massimo Pedrani, Phillippe J.H. Rohrer, John G.
Tramontana, Bernard Kramer and Declan J. Service. John S. Hodgson did not attend
the Special Meeting. Cynthia R. May, Timothy Carroll and Kevin Ryan resigned as
directors of the Company effective April 15, 2002 as described above. With five
(5) directors constituting a quorum at the Special Meeting, the Board took
actions described in the next succeeding paragraphs.
The Board resolved INTER ALIA:
(i) to authorize the issuance of 2,000,000 shares of the Company's
common stock reserved for issuance to BDG pursuant to the terms of the BDG
investment in the Company and to authorize corporate officers to issue, execute
and deliver to BDG stock certificates representing the shares underlying the BDG
investment. (In November 2001, BDG transferred $1,000,000 to the Company in
consideration of the issuance of 2,000,000 shares of the Company's common stock.
Approximately $300,000 of those funds was previously utilized by the Company to
fund operating expenses prior to the commencement of the Control Litigation; the
balance has remained untouched in an account in the name of the Company at BDG,
pending final disposition of the Control Litigation. Insofar as the Board
resolved to authorize this investment at the Special Meeting, it is contemplated
that the investment of $1,000,000 by BDG for 2,000,000 shares of the Company's
common stock will be concluded; that the subject shares will be issued to BDG
shortly; and the remaining cash balance will be available to the Company);
(ii) to appoint two independent directors, Messrs. Henry Y.L. Toh and
Richard Aulicino, to the Board;
(iii) to remove Cynthia R. May as President of the Company and to
appoint John G. Tramontana as President of the Company;
(iv) to consolidate the corporate records of the Company and to
relocate any and all such corporate records from Saginaw, Michigan to the
Company's principal executive offices in Johnstown, Ohio;
(v) to remove Cynthia R. May as the Secretary of the Company and to
appoint Philippe J.H. Rohrer as Secretary of the Company;
(vi) to effect changes in the constituency of the standing committees
of the Board as follows:
(1) to appoint newly elected director, Richard Aulicino, to
fill in the vacancy on the Executive Committee of the Board, which vacancy was
created as a result of Cynthia R. May's April 15, 2002 resignation from the
Board;
(2) to reduce the size of the Compensation and Stock Option
Committee of the Board from three (3) to two (2) seats, to remove the existing
members of the Compensation and Stock Option Committee; and to appoint Richard
Aulicino and Henry Y.L. Toh as the two members of the Compensation and Stock
Option Committee;
(3) to maintain the size of the Audit Committee of the Board
at three (3) directors, to remove the existing members of the Audit Committee;
and to appoint Richard Aulicino and Henry Y.L. Toh to the Audit Committee. At
present there is one vacancy on the Audit Committee; and
(4) to form a Special Committee of the Board consisting of two
(2) newly elected directors, Messrs. Aulicino and Toh, with powers delegable to
such a committee in accordance with Section 141(c) of the Delaware General
Corporation Law and with the Company's Certificate of Incorporation and bylaws,
including but not limited to the power to investigate any claims of past
impropriety by Company officers, directors and others, to pursue any and all
claims on behalf of the Company by negotiation or litigation, as appropriate,
and to retain such independent counsel, forensic accountants, and other experts
as the committee may deem necessary in the conduct of its activities, with all
expenses borne by the Company.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) FINANCIAL STATEMENTS OF BUSINESS REQUIRED.
N/A.
(b) PRO FORMA FINANCIAL INFORMATION.
N/A.
(c) EXHIBITS.
99.7 In re Bigmar, Inc. Section 225 Litigation - Memorandum
Opinion, Consolidated Civil Action No. 19289-NC.
99.8 Order and Final Judgment - In Re Bigmar, Inc. Section 225
Litigation, Consolidated C.A. No. 19289.
[SIGNATURE PAGE FOLLOWS]
SIGNATURE PAGE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
BIGMAR, INC.
Date: April 19, 2002 By: /s/ John G. Tramontana
--------------------------------
John G. Tramontana
Chairman of the Board, President
& Chief Executive Officer