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SEC1746 (2-98) POTENTIAL PERSONS WHO ARE TO RESPOND TO THE COLLECTION OF INFORMATION CONTAINED IN THIS FORM
ARE NOT REQUIRED TO RESPOND UNLESS THE FORM DISPLAYS A CURRENTLY VALID OMB CONTROL NUMBER.
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OMB APPROVAL
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OMB NUMBER: 3235-0145
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UNITED STATES EXPIRES: OCTOBER 31, 2002
SECURITES AND EXCHANGE COMMISSTION ---------------------------------
WASHINGTON, DC 20549 ESTIMATED AVERAGE BURDEN
HOURS PER RESPONSE . . . 14.9
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SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
Bigmar, Inc.
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(Name of Issuer)
Common Stock, Par Value $0.001 per share
--------------------------------------------------------------------------------
(Title of Class of Securities)
089893 10 1
--------------------------------------------------------------------------------
(CUSIP Number)
Cynthia R. May
Harold C. Baldauf
Janet A. Baldauf
GRQ, L.L.C.
95 Midland Road
Saginaw, Michigan 48603
(989) 797-5502
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 18, 2002
--------------------------------------------------------------------------------
(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 that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e) 140.13s-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 he schedule, including all exhibits. See ss.240.13d-7 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).
(Continued on following pages)
CUSIP No. 089893 10 1 Page 2 of 11
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1. NAME OF REPORTING PERSONS I.R.S. Identification Nos. of above persons (entities only).
Cynthia R. May
--------------------------------------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
--------------------------------------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------------------------------------
4. SOURCE OF FUNDS Not applicable
--------------------------------------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d) or 2(e) [ ]
--------------------------------------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: United States
--------------------------------------------------------------------------------------------------------------
7. SOLE VOTING POWER: 6,610,155
NUMBER OF ------------------------------------------------------------------------------------
SHARES
BENEFICIALLY 8. SHARED VOTING POWER: 1,200
OWNED BY -------------------------------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER: 6,610,155
PERSON WITH -------------------------------------------------------------------------------------
10. SHARED DISPOSITIVE POWER: 1,200
--------------------------------------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,611,355
--------------------------------------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 52%
--------------------------------------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: IN
--------------------------------------------------------------------------------------------------------------
CUSIP No. 089893 10 1 Page 3 of 11
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1. NAME OF REPORTING PERSONS I.R.S. Identification Nos. of above persons
(entities only).
Harold C. Baldauf
-------------------------------------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
-------------------------------------------------------------------------------------------------------------
3. SEC USE ONLY
-------------------------------------------------------------------------------------------------------------
4. SOURCE OF FUNDS N/A
-------------------------------------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
-------------------------------------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: United States
-------------------------------------------------------------------------------------------------------------
7. SOLE VOTING POWER: 0
NUMBER OF -------------------------------------------------------------------------------------
SHARES
BENEFICIALLY 8. SHARED VOTING POWER: 3,000
OWNED BY --------------------------------------------------------------------------------------
EACH
REPORTING 9. SOLE DISPOSITIVE POWER: 4,923,539
PERSON WITH --------------------------------------------------------------------------------------
10. SHARED DISPOSITIVE POWER: 3,000
-------------------------------------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,926,539
-------------------------------------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
-------------------------------------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 43.9%
-------------------------------------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: IN
-------------------------------------------------------------------------------------------------------------
CUSIP No. 089893 10 1 Page 4 of 11
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1. NAME OF REPORTING PERSONS I.R.S. Identification Nos. of above persons (entities only).
Janet A. Baldauf
--------------------------------------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
--------------------------------------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------------------------------------
4. SOURCE OF FUNDS N/A
--------------------------------------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: United States
--------------------------------------------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER: 333,333
SHARES --------------------------------------------------------------------------------
BENEFICIALLY
OWNED BY 8. SHARED VOTING POWER: 3,000
EACH --------------------------------------------------------------------------------
REPORTING
PERSON WITH 9. SOLE DISPOSITIVE POWER: 5,256,872
--------------------------------------------------------------------------------
10. SHARED DISPOSITIVE POWER: 3,000
--------------------------------------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,259,872
--------------------------------------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
--------------------------------------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 46.9%
--------------------------------------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: IN
--------------------------------------------------------------------------------------------------------------
CUSIP No. 089893 10 1 Page 5 of 11
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1. NAME OF REPORTING PERSONS I.R.S. Identification Nos. of above persons
(entities only).
GRQ, L.L.C.
-------------------------------------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
-------------------------------------------------------------------------------------------------------------
3. SEC USE ONLY
-------------------------------------------------------------------------------------------------------------
4. SOURCE OF FUNDS Not applicable
-------------------------------------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
-------------------------------------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION: Not Applicable
-------------------------------------------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER: 184,266
SHARES -------------------------------------------------------------------------------------
BENEFICIALLY
OWNED BY 8. SHARED VOTING POWER: 0
EACH -------------------------------------------------------------------------------------
REPORTING
PERSON WITH 9. SOLE DISPOSITIVE POWER: 184,266
-------------------------------------------------------------------------------------
10. SHARED DISPOSITIVE POWER: 0
-------------------------------------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
184,266
-------------------------------------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
-------------------------------------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 1.6%
-------------------------------------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON: 00
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CUSIP No. 089893 10 1 Page 6 of 11
This Amendment No. 1 amends and supplements the statement on Schedule 13D (the
"Initial Schedule 13D") filed jointly on May 23, 2002 by Cynthia R. May, Harold
C. Baldauf and Janet A. Baldauf with respect to the common stock, $.001 per
value (the "Common Stock") of Bigmar, Inc. (the "Issuer"). Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Initial 13D.
ITEM 2. IDENTITY AND BACKGROUND.
-----------------------
Item 2 is hereby amended by the addition of the following entity as a
reporting person:
GRQ is a Michigan limited liability company, which maintains its
principal office at 95 Midland Road, Saginaw, Michigan 48603. Ms. May and H.
Baldauf each own 50% of the membership interests in GRQ and are the two
member-managers of this company.
During the last five years, GRQ has not 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 and as a result of such proceeding 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.
For purposes of the Initial 13D and this Amendment No. 1, the reference
to "Reporting Persons" shall include GRQ.
ITEM 4. PURPOSE OF TRANSACTION.
----------------------
Item 4 is hereby amended by the addition of the following immediately
after the third sentence of the fifth paragraph of such item in the Initial 13D:
On June 24, 2002, Ms. May filed a Notice of Dismissal of her appeal
from the Delaware Judgment on the grounds that the appropriate forum for
determination of all rights with respect to the Common Stock held by Jericho was
now the Action. A copy of the Notice of Dismissal is attached as Exhibit 99.7
hereto.
Item 4 is hereby further amended by the addition of the following at
the end of the text set forth in such item in the Initial 13D:
On December 18, 2002, Ms. May, on behalf of GRQ, made a written demand
(the "Demand") upon the Issuer for inspection and copying of the current list of
stockholders of the Issuer pursuant to Section 220 of the Delaware General
Corporation Law. As represented therein, the purpose of the Demand is to enable
GRQ to communicate with other shareholders of the Issuer with respect to (1) the
decline in shareholder value and asserted mismanagement and other acts of
misconduct on the part of the incumbent management of the Issuer; (2) the
noticing and holding of an annual or special meeting of stockholders of the
Issuer; and (3) the possible sale of the Issuer's Common Stock and the valuation
of such stock for sale. A copy of the GRQ demand letter to the Issuer dated
December 18, 2002, is attached as Exhibit 99.8 hereto. As of the date of filing
of this Amendment No. 1, the Issuer had not responded to the Demand.
CUSIP No. 089893 10 1 Page 7 of 11
The Demand was prompted by the belief of the Reporting Persons that,
during the period from April 2002 to the present, when the Issuer has been under
the control of the incumbent executive officers and members of the board of
directors (the "Incumbent Management"), the Issuer has experienced a significant
deterioration in its financial condition and viability as a going concern, and
that certain members of the Incumbent Management have engaged in acts, practices
and courses of conduct that, in the opinion of the Reporting Persons, constitute
mismanagement, breaches of fiduciary duty, and other misconduct in the operation
of the Issuer.
Specifically, during the time it has been controlled by the Incumbent
Management, the Issuer has to date failed to file with the Securities and
Exchange Commission its annual report on Form 10-K for the year ended December
31, 2001. To date, the Issuers have also failed to file quarterly reports on
Form 10-Q for the quarters ended March 31, 2002, June 30, 2002 and September 30,
2002. With the exception of Forms 8-K filed on April 19, 2002, and May 1, 2002,
reporting on the removal of Ms. May as president and secretary of the Issuer and
the resignation from the Issuer's board in April 2002 of Ms. May and three other
U.S.-based, non-management directors, the Issuer has not filed any current
reports on Form 8-K to disclose material corporate developments respecting the
Issuer.
Among other things, information has come to the attention of the
Reporting Persons that a principal customer of the Issuer on June 11, 2002,
notified the U.S. Food and Drug Administration of a voluntary recall due to
product mislabeling of a supply of pharmaceuticals provided to the customer by
one of the Issuer's Swiss subsidiaries for resale and distribution. To the
knowledge of the Reporting Persons, this recall and its impact on the Issuer's
financial condition and operations have not been disclosed to public investors.
The Reporting Persons have further become aware from representations
set forth in a Schedule 13D filed on October 2, 2002 by John J. Tramontana, the
Issuer's Chairman and Chief Executive Officer (the "Tramontana 13D"), that Mr.
Tramontana obtained a judgment from a Swiss court against one of the Issuer's
Swiss subsidiaries, Bigmar Pharmaceuticals, S.A. ("Bigmar SA") for the
equivalent of approximately $1,325,000 claimed to be owed to him by Bigmar SA.
According to a translation of a Swiss writ of execution dated February 28, 2002,
annexed to the Tramontana 13D, the writ in favor of Mr. Tramontana as ostensible
creditor of Bigmar SA was served on himself as president of Bigmar SA, and was
not contested or appealed by Bigmar SA. This judgment was concealed from Ms. May
and the three other U.S.-based, non-management directors of the Issuer who were
then serving as members of a Status Quo Board of Directors of the Issuer under
an Order by the Chancery Court in the Delaware Litigation.
To the knowledge of the Reporting Persons, the Issuer has never
disclosed the existence of this insider self-dealing conduct or its financial
impact on the Issuer, and the judgment was kept secret from public investors for
over seven months until revealed in the Tramontana Schedule 13D.
The Reporting Persons have received information further indicating that
the Issuer has closed its principal office in the U.S. located in Johnstown,
Ohio, and ceased conducting stability studies for its pharmaceutical products at
this site. It had been represented to Ms. May and the three other U.S.-based,
non-management directors when they were serving on the Status Quo Board of
Directors of the Issuer that the maintenance of these studies was a requirement
to permit continued shipments of the Issuer's pharmaceutical products into the
U.S. from its Swiss manufacturing facilities. To the knowledge of the Reporting
Persons, no disclosure of this development has been made by the Issuer or of its
impact on the Issuer's financial condition and operations.
CUSIP No. 089893 10 1 Page 8 of 11
Moreover, while controlled by the Incumbent Management, the Issuer has
failed to notice and convene a stockholders meeting although one has not been
held for over two years. In the opinion of the Reporting Persons, this failure
to hold a meeting for the election of directors has served to perpetuate and
entrench the Incumbent Management and avoid accountability for the misconduct of
certain of its members.
The Reporting Persons have also received information indicating that,
despite the significant decline in market price for the Issuer's Common Stock
during the period it has been under the control of the Incumbent Management,
they have refused to consider expressions of interest on the possible
acquisition of the Issuer at a potential premium by one or more players in the
pharmaceutical industry. As a result, the Reporting Persons desire to
communicate with other shareholders concerning the possible sale of such
holders' Common Stock to a potential acquirer, along with the Common Stock which
the Reporting Persons beneficially own.
Because the Reporting Persons believed that they might be constrained
by the Order issued in the Action from discussing or negotiating with an
potential acquirer of the Common Stock they beneficially own, Ms. May and H.
Baldauf, on November 18, 2002, filed an emergency motion with the District Court
(the "Emergency Motion"), seeking modification or clarification of the Order
that would, inter alia, (a) permit any of the members of Jericho to explore a
potential sale of the Common Stock owned by Jericho or Baldauf and to negotiate
with potential purchasers, and (b) subject any sale of such Common Stock to
approval of the District Court. A copy of the Emergency Motion is attached as
Exhibit 99.9 hereto. As of the date of filing of this Amendment No. 1, no
decision has been rendered by the District Court on the Emergency Motion.
As described above, the Reporting Persons, subject to approval of the
District Court through modification or clarification of the Order, may seek to
dispose of some or all of the Common Stock owned or controlled by them. Except
as set forth above, the Reporting Persons do not have any present plans or
proposals which relate to or would result in:
(a) The acquisition by any person of additional
securities of the Issuer, or the disposition of such
securities;
(b) An extraordinary corporate transaction, such as a
merger, reorganization or liquidation involving the
Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of
the Issuer or of any of its subsidiaries;
(d) Any change in the board of directors or management of
the Issuer, including any plans or proposals to
change the number or term of directors or to fill any
existing vacancies on the board;
(e) Any material change in the present capitalization or
dividend policy of the Issuer;
(f) Any other material change in the Issuer's business or
corporate structure;
CUSIP No. 089893 10 1 Page 9 of 11
(g) Changes in the Issuer's charter, bylaws or
instruments corresponding thereto, or other actions
which may impede the acquisition of control of the
issuer by any person;
(h) Causing a class of securities of the Issuer to be
delisted from a national securities exchange or to
cease to be authorized to be quoted in an
inter-dealer quotation system of a registered
national securities association;
(i) A class of equity securities of the Issuer becoming
eligible for termination of registration pursuant to
Section 12(g)(4) of the Securities Exchange Act of
1934; or
(j) Any action similar to any of those enumerated above.
Notwithstanding the foregoing, the Reporting Persons intend to continue
to review and evaluate their investment in the Issuer on the basis of various
factors, including such information as may be available to them concerning the
Issuer's management, business, results of operations, financial condition and
future prospects, conditions in the securities markets, general economic and
industry conditions and individual tax and other portfolio considerations. Based
upon such review, the Reporting Persons may take such action as they deem
appropriate in light of the circumstances existing from time to time. In this
connection, the Reporting Persons may, subject to such factors as they deem
relevant, purchase or otherwise acquire additional shares of Common Stock from
time to time in the open market or in privately negotiated transactions or
otherwise; or sell or otherwise dispose of such shares beneficially owned,
whether now or in the future, from time to time in the open market, in privately
negotiated transactions to one or more purchasers, or otherwise, subject to
compliance with the Order, as it may be modified or clarified. Finally, based
upon their continuing review and evaluation of their investment in the Common
Stock and subject to compliance with the Order, as it may be modified or
clarified, the Reporting Persons may, in the future, elect to take other actions
which may have the purpose of influencing and controlling the direction of the
management and policies of the Issuer.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
------------------------------------
Item 5 is hereby amended by the addition of the following immediately
after the fourth paragraph of such item in the Initial 13D:
GRQ is the direct beneficial owner of 184,266 shares of the Issuer's
Common Stock over which it has both dispositive and voting power. GRQ would thus
be deemed the beneficial owner of 1.6% of the outstanding Common Stock of the
Issuer (based on the Issuer's Quarterly Report on Form 10-Q for the quarter
ending September 30, 2001, which is the last report filed by the Issuer
reflecting the outstanding shares of Common Stock, as adjusted by additional
issuances of Common Stock by the Issuer, which are known by the Reporting
Persons to have occurred subsequent to the September 30, 2001 Quarterly Report).
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
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TO THE SECURITIES OF THE ISSUER.
--------------------------------
Item 6 is hereby amended by the addition of the following at the end of
such item in the Initial 13D:
CUSIP No. 089893 10 1 Page 10 of 11
The Reporting Persons have entered into an Amended Joint Filing
Agreement dated January 8, 2003, for the purpose of including GRQ as a joint
filer of the Initial 13D and amendments thereto. A copy of the Amended Joint
Filing Agreement is attached as Exhibit 99.10 hereto.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
--------------------------------
EXHIBIT NO. DESCRIPTION
99.7 Notice of Dismissal of Cynthia R. May filed June 24,
2002, In re Bigmar, Inc. Section 225 Litigation, No.
203,2002 (DE S.Ct)
99.8 Letter from GRQ, LLC to Bigmar, Inc. dated December 18,
2002
99.9 Defendant-Counter-Plaintiffs' Emergency Motion for
Relief from May 13, 2002 Order Relating to Preliminary
Injunction, dated November 18, 2002,
Tramontana v. May, et. al., Civil Action No. 02-10012
(E.D. MI)
99.10 Amended Joint Filing Agreement dated January 8, 2003.
CUSIP No. 089893 10 1 Page 11 of 11
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment No. 1 is true, complete
and correct.
Dated: January 8, 2003
/s/ CYNTHIA R. MAY
------------------------------------
Cynthia R. May
/s/ HAROLD C. BALDAUF
-----------------------------------
Harold C. Baldauf
/s/ JANET A. BALDAUF
-----------------------------------
Janet A. Baldauf
GRQ, L.L.C.
By: /s/ CYNTHIA R. MAY
--------------------------------
Cynthia R. May
Member-Manager