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-