-----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, L/95jSX8xVaSAyuCw8qGAjdieeJobfXINGcRHPdvLIEI4h+64IyxrYyduDrhTCRz 6pP7RKVOvNX0PSUpaPoCUA== 0000922423-01-000004.txt : 20010122 0000922423-01-000004.hdr.sgml : 20010122 ACCESSION NUMBER: 0000922423-01-000004 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20010104 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MUSICMAKER COM INC CENTRAL INDEX KEY: 0001079786 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-CATALOG & MAIL-ORDER HOUSES [5961] IRS NUMBER: 541811721 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-56755 FILM NUMBER: 1502054 BUSINESS ADDRESS: STREET 1: 1740 BROADWAY STREET 2: 23RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: (212) 265-8818 MAIL ADDRESS: STREET 1: 1831 WIEHLE AVENUE STREET 2: SUITE 128 CITY: RESTON STATE: VA ZIP: 20190 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BARINGTON CAPITAL GROUP L P CENTRAL INDEX KEY: 0000887762 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 888 SEVENTH AVENUE 17TH FL CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: 2129745400 SC 13D/A 1 0001.txt AMENDMENT NO.2 SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Amendment No. 2) Under the Securities Exchange Act of 1934 musicmaker.com, Inc. -------------------- (Name of Issuer) Common Stock, $.01 par value ----------------------------- (Title of Class of Securities) 62757C108 --------- (CUSIP Number) James Mitarotonda BCG Strategic Investors, LLC 888 Seventh Avenue 17th Floor New York, New York 10019 ------------------------ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 4, 2001 --------------- (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: |_| Introduction. This amends and supplements the Schedule 13D dated December 18, 2000, as amended by Amendment No. 1 thereto dated December 19, 2000 (the "Schedule"), filed with the Securities and Exchange Commission by BCG Strategic Investors, LLC ("BCG"), Barington Capital Group, L.P., Barington Companies Equity Partners, L.P. and dot com Investment Corporation with respect to the common stock, $.01 par value (the "Common Stock"), of musicmaker.com, Inc., a Delaware corporation ("musicmaker.com"). Item 4 of the Schedule 13D, "Purpose of Transaction," is amended and supplemented by adding the following: On January 4, 2001, James Mitarotonda, as a representative of BCG, telephoned Devarajan S. Puthukarai, the chief executive officer of musicmaker.com and requested that musicmaker.com's three vacant seats on its board of directors be filled by BCG's nominees. Mr. Puthukarai, on behalf of musicmaker.com's current board of directors, rejected Mr. Mitarotonda's request. In response, on January 4, 2001, BCG sent a letter to musicmaker.com, a copy of which is attached hereto as Exhibit 3. Item 7 of the Schedule 13D, "Material to be Filed as Exhibits," is amended by adding the following: 3. Letter dated January 4, 2001 from BCG to musicmaker.com. -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: January 4, 2001 BCG STRATEGIC INVESTORS, LLC By /s/ James Mitarotonda ---------------------------------------- Name: James Mitarotonda Title: Manager BARINGTON CAPITAL GROUP, L.P. By: LNA Capital Corp., its general partner By /s/ James Mitarotonda ---------------------------------------- Name: James Mitarotonda Title: Chairman, President and C.E.O. BARINGTON COMPANIES EQUITY PARTNERS, L.P. By: Barington Companies Investors, LLC By /s/ James Mitarotonda ---------------------------------------- Name: James Mitarotonda Title: Manager DOT COM INVESTMENT CORPORATION By: /s/ Seymour Holtzman --------------------------------------- Name: Seymour Holtzman Title: President -3- EXHIBIT 3 BCG Strategic Investors, LLC c/o Barington Capital Group, L.P. 888 Seventh Avenue, 17th Floor New York, New York 10019 January 4, 2001 musicmaker.com, Inc. 1740 Broadway 23rd Floor New York, New York 10019 Attention: Devarajan S. Puthukarai Chairman, Chief Executive Officer and President Gentlemen: We applaud the decision of the Company's board of directors, announced yesterday, to engage in a prompt liquidation of the Company rather than pursue a course of operation that had no prospects of profitability and is rapidly dissipating the Company's remaining assets. We were deeply disappointed, however, by the Company's failure to honor our request for board representation that I communicated to you earlier today. As you know, with over 38% of the Company's outstanding stock, our group is by far the Company's largest stockholder. We have an overriding interest in a liquidation process that will maximize the return to stockholders. In this regard, we seek no special treatment, and indeed cannot receive such treatment under Section 203 of the Delaware corporation law. Our interest is to obtain the greatest possible return to all stockholders, in which we will share on a pro rata basis. We reiterate therefore our request for representation on the board of directors. Commensurate with our holdings, we are asking the board to appoint our representatives to fill the three existing vacancies on the board. Our representatives will bring to the musicmaker board the judgment, experience, energy, objectivity and incentive to produce the greatest liquidation distribution to the Company's stockholders. We understand, for example, that the Company is a party to costly leases and other contractual arrangements, whose value to the Company was highly questionable even at the outset. Some of these arrangements will require great skill and determination to terminate on terms that are financially favorable to the Company. Our representatives will have that skill and determination. Virgin Holdings, from whom BCG purchased its shares, had three representatives on the board. The Company's refusal to grant us equal representation is unreasonable, unfair and suspect. Time is now of the essence. With each passing day, the Company's assets diminish. Given our financial interest in the Company and our ability to bring substantial value to the liquidation process, we reiterate our demand that the board act promptly and affirmatively on our request for board representation. Please call me as soon as possible at (212) 974-5701 to discuss. Very truly yours, /s/ James Mitarotonda ---------------------- James A. Mitarotonda -5- -----END PRIVACY-ENHANCED MESSAGE-----