-----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, MCR5klJlnPC3WEqqLDHBLXwNyIrK8GtsCE4jeGA6ONDKyorCmEriiWWUKRcGRghg oBp7oNaoXuI7oVDKbdVQOg== 0000922423-01-000009.txt : 20010122 0000922423-01-000009.hdr.sgml : 20010122 ACCESSION NUMBER: 0000922423-01-000009 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010105 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: 1502920 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.3 SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Amendment No. 3) 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 5, 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 and Amendment No. 2 thereto dated January 4, 2001 (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, of musicmaker.com, Inc., a Delaware corporation ("musicmaker.com"). I. Item 4 of the Schedule 13D, "Purpose of Transaction," is amended and supplemented by adding the following: On January 5, 2001, BCG filed with the Securities and Exchange Commission a Schedule 14A containing a Preliminary Consent Solicitation Statement (the "Preliminary Statement") pursuant to which BCG is soliciting the written consent of the stockholders of musicmaker.com to take certain actions, including (i) the amendment of the By-laws of musicmaker.com (a) to set the number of directors at fifteen and (b) to authorize only stockholders to fill vacancies on the board of directors created by an increase in the number of board seats effected through a stockholder consent solicitation, (ii) the election of eight individuals, including James Mitarotonda and Seymour Holtzman, to the board of directors of musicmaker.com, and (iii) the repeal of any By-laws adopted by the board of directors of musicmaker.com subsequent to February 17,1999. BCG also delivered to musicmaker.com BCG's signed written consent with respect to the proposed actions set forth in the Preliminary Statement and a demand letter requesting a list of musicmaker.com's stockholders, a copy of which is attached hereto as Exhibit 5. II. Item 7 of the Schedule 13D, "Material to be Filed as Exhibits," is amended by adding the following exhibits: 4. Preliminary Consent Solicitation Statement (incorporated by reference to the Schedule 14A filed by BCG Strategic Investors, LLC and others with the Securities and Exchange Commission on January 5, 2001). 5. Demand letter dated January 5, 2001 from BCG to musicmaker.com. 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 5, 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 EX-5 2 0002.txt EXHIBIT 5 EXHIBIT 5 BCG Strategic Investors, LLC 888 Seventh Avenue 17th Floor New York, New York 10019 January 5, 2001 VIA FACSIMILE AND COURIER - ------------------------- Mr. Devarajan S. Puthukarai Chairman, Chief Executive Officer and President musicmaker.com, Inc. 1740 Broadway 23rd Floor New York, New York 10019 Request for Stockholder List Dear Mr. Puthukarai: The undersigned, being the record owner of an aggregate of 1,209,866 shares of common stock, par value $.01 per share (the "Company Stock"), of musicmaker.com, Inc., a Delaware corporation (the "Company"), hereby demands, pursuant to Section 220 of the Delaware General Corporation Law, the right to inspect, during the Company's usual business hours, the following records and documents of the Company and to make copies or extracts therefrom: A. A complete record or list of the Company's stockholders certified by its transfer agent, which sets forth the name and address of each stockholder and the number of shares of Company Stock registered in the name of each stockholder as of the most recent practicable date. B. A magnetic computer tape list of the Company's stockholders as of the most recent practicable date, which sets forth the name and address of each stockholder and the number of shares of Company Stock registered in the name of each stockholder, together with any computer processing information that may be relevant to the use of such computer tape, and a printout of such magnetic computer tape for verification purposes. C. All information in or which comes into the Company's possession or control, or which can reasonably be obtained from nominees of any central certificate depository system, concerning the number and identity of the actual beneficial owners of Company Stock, including a list of all owners who hold Company Stock in the name of Cede & Co. or other similar nominees and any respondent bank listings obtained pursuant to the requirements of Rule 14b-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and a list or lists containing the name, address, and number of shares of Company Stock attributable to participants in any employee stock ownership, incentive, profit sharing, savings, retirement, stock option, stock purchase, restricted stock or other comparable plan of the Company in which the voting of shares held by such plan is made, directly or indirectly, individually or collectively, by participants in the plan. D. As promptly as practicable, any and all omnibus proxies and correspondent participant listings with respect to all nominees and respondent banks which are currently in effect. E. All lists, tapes and other data in or which come into the possession or control of the Company, or which can reasonably be obtained pursuant to Rules 14b-1 and 14b-2 promulgated under the Exchange Act, which sets forth the name and address of, and the number of shares owned by, each beneficial owner of Company Stock who has not objected to having his or her name disclosed (the "non-objecting beneficial owners" or "NOBO" list). F. A "stop transfer" list or stop list relating to the shares of Company Stock. G. All additions, changes and corrections to any of the information requested pursuant to paragraphs 1 through 6 from the date hereof until the undersigned requests termination of the transmission of such materials. The undersigned agrees to bear the reasonable costs incurred by the Company in connection with the production of the requested materials. The purpose of this demand is to permit the undersigned to communicate with other stockholders of the Company on matters relating to their interests as stockholders, including the solicitation of consents to amend the By-laws of the Company and to elect nominees of the undersigned and certain other persons as directors. The undersigned hereby designates Kramer Levin Naftalis & Frankel LLP and its partners, employees and other persons designated by it acting together, singly or in any combination, to conduct the requested examination and copying of materials. Please advise Julie K. Horowitz of Kramer Levin Naftalis & Frankel LLP (Tel: 212-715-7783) as to the time and place that the requested information will be made available in accordance with this request. As you are no doubt aware, Delaware law requires your response to our request within five business days of the date of this letter. An affidavit relating to this demand has been attached to this letter. Please acknowledge receipt of this letter by signing and dating the enclosed copy of this letter and returning the same to the undersigned in the enclosed envelope. Very truly yours, /s/ James Mitarotonda --------------------- James Mitarotonda RECEIPT ACKNOWLEDGED ON January __, 2001 MUSICMAKER.COM, INC. By:_________________________ Name: Title: AFFIDAVIT STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK ) James Mitarotonda, having been duly sworn, deposes and says that he has executed the stockholder demand to which this Affidavit is attached and that the facts and statements contained in such demand are true and correct in all material respects. /s/ JAMES MITAROTONDA - --------------------- James Mitarotonda SWORN TO AND SUBSCRIBED BEFORE ME THIS 5TH DAY OF JANUARY, 2001 /s/ MARILYN L. SHAPIRO - ---------------------- Notary Public -----END PRIVACY-ENHANCED MESSAGE-----