-----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, UrHnbde0xWo/p08TznYCE27ut04TnctTROLAQaKC3XunQfPKAzCwhF4XyKSZ1Yli mgT4vtfz8wedoFfLp3fwyw== 0000922423-02-000568.txt : 20020516 0000922423-02-000568.hdr.sgml : 20020516 20020516160039 ACCESSION NUMBER: 0000922423-02-000568 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20020516 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: 02655010 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: MUSICMAKER COM 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 SC 13D/A 1 kl05040_sc13d-a.txt SCHEDULE 13D AMENDMENT NO. 9 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) (Amendment No. 9) 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) May 15, 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. 9 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 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, 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 by adding the following: On May 15, 2002, musicmaker sent a letter to Gerald W. Kearby, President and Chief Executive Officer of the Company, Robert G. Flynn, Secretary of the Company, and the board of directors of the Company, a copy of which is attached hereto as Exhibit 99.15. On May 15, 2002, based on the Company's public announcement that its 2002 Annual Meeting of Stockholders is scheduled to be held on July 1, 2002, musicmaker and the Company reached an agreement to suspend the pending lawsuit in the Court of Chancery of the State of Delaware filed by musicmaker against the Company. Item 7 of the Schedule 13D, "Material to be Filed as Exhibits," is amended by adding the following: 99.15 Letter dated May 15, 2002 from musicmaker to Gerald W. Kearby, President and Chief Executive Officer of the Company, Robert G. Flynn, Secretary of the Company, and the board of directors of the Company. -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: May 16, 2002 MUSICMAKER.COM, INC. By /s/ James A. Mitarotonda ----------------------------------- Name: James A. 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 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/ Morgan B. Stark ----------------------------------- Name: Morgan B. Stark Title: Executive Vice President DOMROSE SONS PARTNERSHIP By /s/ James A. Mitarotonda ---------------------------------- Name: James A. Mitarotonda Title: Partner -3- EX-99 3 kl05040_ex99-15.txt EXHIBIT 99.15 LETTER Exhibit 99.15 musicmaker.com, Inc. c/o Barington Capital Group, L.P. 888 Seventh Avenue 17th Floor New York, New York 10019 May 15, 2002 VIA FAX AND FEDERAL EXPRESS - --------------------------- Robert G. Flynn, Secretary Gerald W. Kearby, President and Chief Executive Officer Members of the Board of Directors Liquid Audio, Inc. 800 Chesapeake Drive Redwood City, California 94063 Robert G. Flynn, Secretary Gerald W. Kearby, President and Chief Executive Officer Members of the Board of Directors Liquid Audio, Inc. c/o The Corporation Trust Company 1209 Orange Street Wilmington, DE 19801 Gentlemen: We understand that Liquid Audio, Inc. has set July 1, 2002 as the date for its 2002 Annual Meeting of Stockholders. Accordingly, we will suspend our lawsuit to compel a meeting, which is currently pending against the Company in Delaware Chancery Court. As you are aware, on December 18, 2001 and December 20, 2001, we notified the Company of our intention to nominate certain individuals as directors of the Company and to present certain proposals at the 2002 Annual Meeting. For the avoidance of any doubt, we reaffirm our intention to nominate the named persons and to present our proposals, as set forth in our prior correspondence (copies of which are attached), except for the following. We will not be presenting our proposals to amend the Company's Restated Certificate of Incorporation and to rescind the Company's "shareholder rights plan." While we continue to believe that these actions are essential for the Company, we intend to focus our campaign on the key issue facing the stockholder electorate -- installing management that is guided by the interests of stockholders and not an unattainable business (or should we say "non-business") plan. As we have previously indicated to you, we and other stockholders who have contacted us to express their views are deeply concerned about the ongoing depletion of the Company's cash and the other critical issues facing the Company. We expect that between now and the 2002 Annual Meeting the Company's board of directors and its management will take no action that will prejudice the rights of stockholders, including entering into any transaction to buy or sell the Company or any material amount of its assets or taking action that would deplete the Company's already dwindling cash supply. On the contrary, we demand that, even in advance of the Annual Meeting, management close down the Company's money losing operations and arrest the Company's senseless cash drain. We also advise you that we will hold the current board and management strictly accountable for any action taken in advance of the Annual Meeting that would effectively thwart the exercise of the right of the stockholder electorate to choose directors who will be responsive to the public owners of the Company and who will be guided first and foremost by their interests. Very truly yours, musicmaker.com, Inc. By: /s/ James A. Mitarotonda --------------------------------- James A. Mitarotonda President and Chief Executive Officer -----END PRIVACY-ENHANCED MESSAGE-----