-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QbIdxlHSanRfSF5EsELdR2de4OkZq81S7Gr6d28kHptXthn9hHcTnTysdHlhZ9jp 6P6t1w2n7dpWcbYITQBaQw== 0000922423-02-001071.txt : 20021004 0000922423-02-001071.hdr.sgml : 20021004 20021004094129 ACCESSION NUMBER: 0000922423-02-001071 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20021004 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: LIQUID AUDIO INC CENTRAL INDEX KEY: 0001016613 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 770421089 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-57595 FILM NUMBER: 02781563 BUSINESS ADDRESS: STREET 1: 800 CHESAPEAKE DRIVE CITY: REDWOOD CITY STATE: CA ZIP: 94063 BUSINESS PHONE: 6505492000 MAIL ADDRESS: STREET 1: LIQUID AUDIO INC STREET 2: 800 CHESAPEAKE DRIVE CITY: REDWOOD CITY STATE: CA ZIP: 94063 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MM COMPANIES INC CENTRAL INDEX KEY: 0001079786 STANDARD INDUSTRIAL CLASSIFICATION: PHONOGRAPH RECORDS & PRERECORDED AUDIO TAPES & DISKS [3652] IRS NUMBER: 541811721 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1740 BROADWAY STREET 2: 23RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: (212) 265- MAIL ADDRESS: STREET 1: 1831 WIEHLE AVENUE STREET 2: SUITE 128 CITY: RESTON STATE: VA ZIP: 20190 FORMER COMPANY: FORMER CONFORMED NAME: MUSICMAKER COM INC DATE OF NAME CHANGE: 19990216 SC 13D/A 1 kl10004_sc13d-a.txt SCHEDULE 13D AMENDMENT NO. 16 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) (Amendment No.16) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) Liquid Audio, Inc. ------------------ (Name of Issuer) Common Stock, $.001 par value (Title of Class of Securities) 53631T102000 ------------ (CUSIP Number) Mr. James Mitarotonda c/o Barington Capital Group, L.P. 888 Seventh Avenue, 17th Floor New York, N.Y. 10019 (212) 974-5700 -------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 2, 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 which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f), or 13d-1(g), check the following box: |_|. Introduction This Amendment No. 16 amends and supplements the Schedule 13D, dated September 28, 2001, as amended to date (the "Schedule 13D"), filed with the Securities and Exchange Commission by MM Companies, Inc., formerly known as musicmaker.com, Inc. ("MM Companies"), Jewelcor Management, Inc., Barington Companies Equity Partners, L.P., Ramius Securities, LLC and Domrose Sons Partnership with respect to the common stock, $.001 par value, of Liquid Audio, Inc., a Delaware corporation (the "Company"). Item 4 of the Schedule 13D, "Purpose of Transaction," is amended by adding the following: On October 2, 2002, MM Companies sent a letter to the Board of Directors of the Company. In such letter, among other things, MM Companies demanded that the Board of Directors of the Company seat the Company's new directors elected at the Company's 2002 annual meeting of stockholders and convene a meeting of the Board of Directors of the Company. A copy of such letter is attached hereto as Exhibit 99.25. On October 3, 2002 MM Companies issued a press release, a copy of which is attached hereto as Exhibit 99.26. Item 7 of the Schedule 13D, "Material to be Filed as Exhibits," is amended by adding the following: 99.25 Letter dated October 2, 2002 from MM Companies to the Board of Directors of the Company. 99.26 Press release of MM Companies dated October 3, 2002. -2- SIGNATURES After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certify that the information set forth in this Statement is true, complete and correct. Dated: October 3, 2002 MM COMPANIES, INC. By /s/ James A. Mitarotonda ----------------------------- Name: James A. Mitarotonda Title: President and Chief Executive Officer JEWELCOR MANAGEMENT, INC. By /s/ Richard L. Huffsmith ------------------------------ Name: Richard L. Huffsmith Title: Vice President/General Counsel BARINGTON COMPANIES EQUITY PARTNERS, L.P. By: Barington Companies Investors, LLC, its general partner By /s/ James A. Mitarotonda ------------------------------- Name: James A. Mitarotonda Title: President and Chief Executive Officer RAMIUS SECURITIES, LLC By: Ramius Capital Group, LLC, its managing member By /s/ Marran Ogilvie ------------------------------ Name: Marran Ogilvie Title: Authorized Signatory DOMROSE SONS PARTNERSHIP By /s/ James A. Mitarotonda ------------------------------ Name: James A. Mitarotonda Title: Partner -3- EX-99 3 kl10004_ex99-25.txt EXHIBIT 99.25 LETTER Exhibit 99.25 MM COMPANIES, INC. 888 SEVENTH AVENUE 17TH FLOOR NEW YORK, NEW YORK 10019 October 2, 2002 To the Board of Directors of Liquid Audio: The preliminary results of the 2002 Annual Meeting of Shareholders of Liquid Audio have been received. The results are decisive and unequivocal. Over 81% of the shares voted were cast in our favor as nominees; less than 19% of the votes were cast for the nominees of management. (The pro-management vote of shareholders unaffiliated with management amounted to only about 5% of the total vote cast.) The new directors should be seated immediately. You are refusing to do so, insisting on a session next week to review and challenge the vote. This appears consistent with management's continuing pattern of flouting the will of shareholders. Yet again, management is delaying shareholder expression of their rights. For what purpose does the Company need to review the vote? We asked for a reason and were given none. The numbers are unambiguously one-sided. Over 97% of the votes cast in favor of the MM Companies group nominees are in street name and for these votes there are no proxy cards to inspect. The inspectors of election reported no unresolved over-votes (out of balance votes by street name holders), no stand-offs (conflicting proxies from the same holder) and only a miniscule number of set asides (improperly completed proxy cards). There is nothing to review, and the request for a review session in these circumstances is outrageous. We can only assume that management has other motives in putting off certification of the vote. We therefore caution the incumbent board in the strongest of terms not to toy with shareholder interests or attempt to manipulate the proxy process to partisan advantage. Pending certification of the vote and the resolution of our challenge in Delaware Chancery Court to the Company's attempt to pack the board prior to the annual meeting, you should take no action that would prejudice our rights and the rights of shareholders. This includes any changes to the Company's charter documents, any corporate action outside the ordinary course of business and any filings with the Securities and Exchange Commission regarding the Alliance Entertainment transaction. Following the meeting of shareholders last week, we offered to convene with the other board members and immediately to begin working together, amicably and in good faith. Our offer was rebuffed. Now we learn that management is exploiting the proxy process to delay seating us even though we were the shareholders' overwhelming choice for directors. Not only is this conduct an affront to the Company's shareholders, the legal and other costs of the unnecessary review procedure constitutes yet additional waste of the Company's assets by management. -4- We demand of you, as the fiduciaries of the Company and its shareholders, at once to put an end to this deviousness, seat the new directors and convene a meeting of the board so that we can attend to the pressing issues facing the Company. Otherwise, be advised that we intend to hold management and the incumbent board personally liable for any damages, including corporate waste, that we and the Company sustain as a result of your continuing obstruction of the clear and unambiguous mandate of the shareholders. Very truly yours, /s/ Seymour Holtzman /s/ James Mitarotonda - -------------------------- ---------------------------- Seymour Holtzman James Mitarotonda Chairman President and Chief Executive Officer EX-99 4 kl10004_ex99-26.txt EXHIBIT 99.26 PRESS RELEASE Exhibit 99.26 MM COMPANIES' 2 DIRECTORS NOMINEES OVERWHELMINGLY DEFEAT LIQUID AUDIO'S ------------------------------------------------------------------------ NOMINEES IN PROXY CONTEST; LIQUID AUDIO SHAREHOLDERS ALSO VOICE STRONG ----------------------------------------------------------------------- OPPOSITION TO PROPOSED MERGER WITH ALLIANCE -------------------------------------------- NEW YORK, N.Y., / --Based on the preliminary results from the independent inspectors, The MM Companies group's two director nominees -- Seymour Holtzman and Jim Mitarotonda --received over 81% of the votes cast at Liquid Audio annual meeting held on September 26, 2002. Jim Mitarotonda, President of MM Companies, commented: "We are very pleased that Liquid Audio's shareholders have had the opportunity to voice their displeasure with the Board. According to our proxy solicitors, D.F. King & Co., the initial vote indicates that our two MM Companies group nominees received the support from fellow shareholders by over a 4 to 1 margin -- a sound and convincing victory by anyone's standards. We request Liquid Audio's board to stop the delaying tactics and certify the voting results. Significantly, Liquid Audio's board should look closely at the approximately 12,250,000 votes received on The MM Companies group proxy card -- more than a majority of the share outstanding -- opposing the merger with Alliance. It's time to listen to the shareholders." Seymour Holtzman, Chairman of MM Companies, stated: "We look forward to working with the current board to carry out our platform for a prompt distribution of $3.00 per share and stop the senseless cash burn by the company. The MM Companies group is gratified by the tremendous vote of confidence shown by shareholders and thanks them for their overwhelming support. We urge all shareholders to contact the Company and its continuing board members and urge them to implement The MM Companies group platform." -----END PRIVACY-ENHANCED MESSAGE-----