0000922423-01-500912.txt : 20011026
0000922423-01-500912.hdr.sgml : 20011026
ACCESSION NUMBER: 0000922423-01-500912
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 2
FILED AS OF DATE: 20011018
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
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: 1761374
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
SC 13D/A
1
kl10046_13da.txt
AMENDMENT NO. 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
(Amendment No. 1)
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 15, 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 Rule 13d-1(e), 13d-1(f), or 13d-1(g), check the following
box: |_|.
Introduction. This amends and supplements the Schedule 13D dated September
28, 2001 (the "Schedule"), filed with the Securities and Exchange Commission by
musicmaker.com, Inc. ("musicmaker"), 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 (the "Common
Stock"), of Liquid Audio, Inc., a Delaware corporation (the "Company"). The
principal executive offices of the Company are located at 800 Chesapeake Drive,
Redwood City, California 94063.
Item 4 of the Schedule 13D, "Purpose of Transaction," is amended and
supplemented by adding the following:
On October 15, 2001, musicmaker sent a letter to Robert G. Flynn,
Secretary of the Company, and Gerald W. Kearby, President and Chief Executive
Officer of the Company, a copy of which is attached hereto as Exhibit 99.4,
requesting the following:
1. That a special meeting of the stockholders be called for 12 PM, Eastern
Standard Time, on November 27, 2001 to consider the following proposals:
A. To elect Seymour Holtzman to fill the existing vacancy on the
Company's Board of Directors (the "Board").
B. To the extent permitted by law, to replace the two directors
currently on the Board whose term expires in 2002 with the following
persons nominated by musicmaker:
(1) James A. Mitarotonda, and
(2) Joseph R. Wright, Jr.
C. To amend the Company's Restated Bylaws to authorize only
stockholders to fill vacancies on the Board of Directors and newly
created directorships resulting from any increase in the authorized
number of directors.
2. That notice of the Special Meeting be promptly given to the Company's
stockholders in accordance with the Company's Restated Bylaws.
3. That musicmaker be given the opportunity to inspect a complete list of
the Company's stockholders.
Item 7 of the Schedule 13D, "Material to be Filed as Exhibits," is
amended by adding the following:
99.4. Notice to Secretary dated October 15, 2001 from musicmaker
to Liquid Audio, Inc.
-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 18, 2001
MUSICMAKER.COM, INC.
By /s/ James Mitarotonda
-----------------------------------------
Name: James Mitarotonda
Title: President and Chief Executive Officer
JEWELCOR MANAGEMENT, INC.
By /s/ Seymour Holtzman
-----------------------------------------
Name: Seymour Holtzman
Title: Chairman and Chief Executive Officer
BARINGTON COMPANIES EQUITY PARTNERS, L.P.
By: Barington Companies Investors, LLC,
its general partner
By /s/ James Mitarotonda
-----------------------------------------
Name: James Mitarotonda
Title: Manager
RAMIUS SECURITIES, LLC
By: Ramius Capital Group, LLC, its
managing member
By /s/ Peter A. Cohen
-----------------------------------------
Name: Peter A. Cohen
Title: Manager
DOMROSE SONS PARTNERSHIP
By /s/ James Mitarotonda
-----------------------------------------
Name: James Mitarotonda
Title: Partner
EX-99.4
3
kl10046_ex99-4.txt
NOTICE TO SECRETARY DATED OCTOBER 15, 2001
Exhibit 99.4
musicmaker.com, Inc.
c/o Barington Capital Group, L.P.
888 Seventh Avenue
17th Floor
New York, New York 10019
October 15, 2001
VIA FACSIMILE, FEDERAL EXPRESS,
-------------------------------
REGISTERED MAIL AND COURIER
---------------------------
Robert G. Flynn, Secretary
Gerald W. Kearby, President and Chief Executive Officer
Liquid Audio, Inc.
800 Chesapeake Drive
Redwood City, California 94063
Robert G. Flynn, Secretary
Gerald W. Kearby, President and Chief Executive Officer
Liquid Audio, Inc.
c/o The Corporation Trust Company
1209 Orange Street
Wilmington, DE 19801
Notice to the Secretary: Demand for a Special Meeting and Stockholder List
--------------------------------------------------------------------------
Dear Mr. Flynn and Mr. Kearby:
The undersigned, which is the stockholder of record of an aggregate of
1,000 shares of common stock, par value $.001 per share (the "Common Stock"), of
Liquid Audio, Inc., a Delaware corporation (the "Company"), hereby demands the
following (each, a "Demand"):
1. That a special meeting of the stockholders of the Company be called
for 12:00 PM, Eastern Standard Time, on November 27, 2001 (the "Special
Meeting") to consider the following proposals:
A. To elect Seymour Holtzman to fill the existing vacancy on the
Company's Board of Directors (the "Board").
B. To the extent permitted by law, to replace the two directors
currently on the Board whose term expires in 2002 with the
following persons nominated by the undersigned:
(1) James A. Mitarotonda, and
(2) Joseph R. Wright, Jr.
C. To amend Section 3.4 of the Company's Restated Bylaws to add a
sentence at the end thereof as follows: "Notwithstanding
anything to the contrary in this Section 3.4, vacancies on the
Board of Directors and newly created directorships resulting
from any increase in the authorized number of directors may
not be filled by the directors but may only be filled by the
stockholders."
2. That you cause notice of the Special Meeting to be promptly given to
the Company's stockholders entitled to vote in accordance with the second
paragraph of Section 2.3 of Article II of the Company's Restated Bylaws.
3. That, pursuant to Section 220 of the Delaware General Corporation
Law (the "DGCL"), the undersigned be given the opportunity 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 record or list sets
forth the name and address of each stockholder of the Company
and the number of shares of Common Stock registered in the
name of each stockholder of the Company as of the most recent
practicable date.
B. A magnetic computer tape or disc 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 Common 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 or disc, and a printout of such magnetic computer tape or
disc 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 Common Stock, including a list of all owners who
hold Common 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 Common 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
such 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, discs 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 set forth the name
and address of, and the number of shares owned by, each
beneficial owner of Common 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
Common Stock.
G. All additions, changes and corrections to any of the
information requested pursuant to paragraphs A through F from
the date hereof until the undersigned requests termination of
the transmission of such 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 but not limited to the composition of the Board.
The undersigned agrees to bear the reasonable costs incurred by the
Company in connection with the production of the requested materials.
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 Peter G. Smith of Kramer Levin Naftalis & Frankel LLP (Tel:
212-715-9401) as to the time and place that the requested information will be
made available in accordance with this Demand. As you are no doubt aware, the
DGCL requires your response to our requests in subsections A through F of this
paragraph 3 within five business days of the date of delivery of this letter.
-2-
Pursuant to Section 2.5 of Article II of the Bylaws, the undersigned
hereby sets forth the following:
1. The stockholder making the nominations set forth above in
clauses A and B of Demand 1 is musicmaker.com, Inc.
2. The address of musicmaker.com, Inc. is c/o Barington Capital
Group, L.P., 888 Seventh Avenue, 17th Floor, New York, New
York 10019.
3. We hereby represent that musicmaker.com, Inc. is a stockholder
of record entitled to vote at the Special Meeting.
4. musicmaker.com, Inc. intends to appear in person at the
Special Meeting.
5. Information regarding each nominee and proposal which complies
with Sections 2.5(c) and (d) of Article II of the Bylaws is
set forth in Exhibits A through D attached hereto.
6. Each nominee's consent to his nomination to serve as a
director of the Company if so elected is included as Annex A.
An affidavit relating to this Demand has been attached to this letter.
Please acknowledge receipt of this letter and the enclosures by signing
and dating the enclosed copy of this letter and returning the same to the
undersigned in the enclosed envelope.
Very truly yours,
musicmaker.com, Inc.
By: /s/ eymour Holtzman
----------------------------------------
Name: Seymour Holtzman
Title: Chairman of the Board
By: /s/ James Mitarotonda
----------------------------------------
Name: James Mitarotonda
Title: President and Chief Executive Officer
RECEIPT ACKNOWLEDGED ON
October __, 2001
LIQUID AUDIO, INC.
By:
-------------------------------
Name:
Title:
-3-
AFFIDAVIT
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
James Mitarotonda, having been duly sworn, deposes and says that he has
executed this 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 12th DAY OF OCTOBER, 2001
----------------------------------
Notary Public
-4-
Exhibit A
Seymour Holtzman
----------------
Mr. Holtzman, age 66, has been involved in the retail business for over 30
years. For many years he was the President and Chief Executive Officer of
Jewelcor, Inc., formerly a New York Stock Exchange company that operated a
nationwide chain of retail stores, and in addition, from 1986 to 1988, Mr.
Holtzman was concomitantly the Chairman of the Board and Chief Executive
Officer of Gruen Marketing Corp, an American Stock Exchange company involved
in the nationwide distribution of watches. During the last five years, Mr.
Holtzman has been the Chairman and Chief Executive Officer of Jewelcor
Management, Inc., which is primarily involved in investment and management
services; C.D. Peacock, Inc., a prominent Chicago, Illinois retail jewelry
establishment; and S.A. Peck & Company, a retail and mail order jewelry
company based in Chicago, Illinois. Mr. Holtzman is currently the Chairman
of the Board of three public companies: Designs, Inc., Little Switzerland,
Inc. and musicmaker.com, Inc. In addition, Mr. Holtzman is on the Board of
Directors of Ambanc Holding Co., Inc., the holding company for Mohawk
Community Bank. Mr. Holtzman is a well-known shareholder activist who
specializes in the banking industry and retail industry. He has been an
investor in banks and savings and loans since 1972.
-5-
Exhibit B
James Mitarotonda
-----------------
Mr. Mitarotonda, age 47, is President, Chief Executive Officer and a director
of musicmaker.com, Inc. Mr. Mitarotonda is also Chairman of the Board,
President and Chief Executive Officer of LNA Capital Corp., the general
partner of Barington Capital Group, L.P., an investment firm founded in
November 1991. In May 1988, Mr. Mitarotonda co-founded Commonwealth
Associates, an investment banking, brokerage and securities trading firm.
Mr. Mitarotonda served as Chairman of the Board and Co-Chief Executive
Officer of JMJ Management Company Inc., the general partner of Commonwealth,
and in such capacities was responsible for corporate finance, and
establishing the framework for the day-to-day operation of the firm. From
December 1984 to May 1988, Mr. Mitarotonda was employed by D.H. Blair & Co.,
Inc., an investment bank, brokerage and securities trading firm.
From July 1981 to November 1984, Mr. Mitarotonda was employed by Citibank, N.A.
in an executive capacity having management responsibility for two of Citibank's
business banking branches. In September 1984, he became Regional Director of
Citibank's Home Equity Financing and Credit Services. From February 1979 to July
1981, Mr. Mitarotonda was employed at Bloomingdale's where he began his career
as a management trainee and held positions of assistant department manager and
branch department manager.
Mr. Mitarotonda graduated from the New York University Graduate School of
Business Administration with a Master of Business Administration degree and from
Queens College with a Bachelor of Arts degree with honors in Economics.
-6-
Exhibit C
Joseph R. Wright Jr.
--------------------
Joseph R. Wright, Jr., age 63, is President and Chief Executive Officer of
PanAmSat Corp., a public company that provides global video and data
broadcasting services via satellite. Mr. Wright is Vice Chairman of
Terremark Worldwide Inc. ("Terramark"), a public company that develops and
operates Network Access Point (NAP) telecommunications data centers in the
U.S. and internationally. Mr. Wright was previously Chairman and Chief
Executive Officer of AmTec, Inc., which was merged into Terremark. In the
late 1990's, Mr. Wright was Chairman and Director of GRC International, Inc.,
a public company providing advanced IT, Internet, and software systems
technologies to government and commercial customers which was sold to AT&T.
From 1989 to 1994, Mr. Wright served in various executive capacities for W.R.
Grace & Co., including Executive Vice President and Vice Chairman of W.R.
Grace & Co., President of Grace Energy Corporation and Chairman of Grace
Environmental Inc.
From 1982 to 1989, Mr. Wright held the position of Director and Deputy Director
of the Office of Management and Budget, The White House, and was a member of
President Reagan's Cabinet. Prior to 1982, Mr. Wright served as Deputy
Secretary, United States Department of Commerce, President of Citicorp Retail
Services and Retail Consumer Services. He held posts in the Department of
Agriculture, the United States Census Bureau and the Department of Commerce, and
was Vice President of Booz, Allen & Hamilton, a management consulting firm.
Mr. Wright is Vice Chairman of Barington Capital Group, L.P. and Chairman of
Barington Companies Equity Partners' advisory board. Mr. Wright also
currently serves on the Board of Directors of Titan Corporation, PanAmSat,
Baker & Taylor, Verso Technologies Inc., Jefferson Consulting Group, RealMed,
and the AT&T Washington Advisory Board. Mr. Wright is a former director of
Travelers Group, Inc. and Harcourt, Brace and Javonovich, Inc. Mr. Wright
graduated from Yale University with a Master's Degree in Industrial
Administration and from Colorado School of Mines with a Professional
Engineering Degree.
-7-
Exhibit D
PROPOSAL C
AMENDMENT TO THE COMPANY'S RESTATED BYLAWS TO REQUIRE DIRECTORSHIPS TO BE
FILLED ONLY BY THE STOCKHOLDERS
musicmaker.com, Inc. believes that Section 3.4 of the Company's Restated
Bylaws should be amended to provide that vacancies on the board of directors and
newly created directorships resulting from an increase in the authorized number
of directors may not be filled by the board of directors but may only be filled
by stockholders.
musicmaker.com, Inc. believes that stockholders should have the
opportunity to select each member of the Board of Directors, whether such
director is being elected at a stockholders' meeting or is to fill an existing
vacancy or a vacancy created from an increase in the authorized number of
directors. Accordingly, musicmaker.com, Inc. now proposes to amend the Company's
Restated Bylaws to provide that existing vacancies on the board of directors and
newly created directorships resulting from and increase in the authorized number
of directors may not be filled by the board of directors but may only be filled
by stockholders.
-8-
Annex A
Consent for Nomination
I, Seymour Holtzman, hereby consent to my nomination as a director of
Liquid Audio, Inc. and agree to serve as a director of Liquid Audio, Inc., if
elected.
/s/ Seymour Holtzman
--------------------------
Seymour Holtzman
Consent for Nomination
I, James Mitarotonda, hereby consent to my nomination as a director of
Liquid Audio, Inc. and agree to serve as a director of Liquid Audio, Inc., if
elected.
/s/ James Mitarotonda
---------------------------
James Mitarotonda
-2-
Consent for Nomination
I, Joseph R. Wright Jr., hereby consent to my nomination as a director
of Liquid Audio, Inc. and agree to serve as a director of Liquid Audio, Inc.,
if elected.
/s/ Joseph R. Wright Jr.
------------------------------
Joseph R. Wright Jr.
-3-