-----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, Medt4zKPrf6YOYw8qOhQOriatfbgK6fpXnSYc0R791zhOxjMDDBvQEXf1/Q4YIvS uFZAWyfS0wAmdFWzPFqKuA== 0000922423-01-000015.txt : 20010122 0000922423-01-000015.hdr.sgml : 20010122 ACCESSION NUMBER: 0000922423-01-000015 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010108 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: 1503780 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.4 SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Amendment No. 4) 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, Amendment No. 2 thereto dated January 4, 2001 and Amendment No. 3 thereto dated January 5, 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 8, 2001, BCG filed with the Securities and Exchange Commission a Schedule 14A containing an amended 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. The amended Prelimnary Consent Solicitation Statement indicates that if BCG's nominees are elected to musicmaker.com's board of directors, they intend to remove the stockholder rights plan recently adopted by musicmaker.com. BCG also delivered to musicmaker.com a letter stating that the by-law amendment purportedly adopted by the board to establish a record date for BCG's consent solicitation is invalid. A copy of the letter is attached hereto as Exhibit 7. II. Item 7 of the Schedule 13D, "Material to be Filed as Exhibits," is amended by adding the following exhibits: 6. Amended 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 8, 2001). 7. Letter dated January 8, 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 8, 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-6 2 0002.txt EXHIBIT 6 EXHIBIT 6 BCG Strategic Investors, LLC c/o Barington Capital Group, L.P. 888 Seventh Avenue, 17th Floor New York, New York 10019 January 8, 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 have reviewed your press release dated January 8, 2001 announcing that musicmaker.com, Inc. has purported to amend its by-laws with respect to setting the record date for stockholder action. We call your attention to Section 109 of the General Corporation Law of the State of Delaware which provides that, following the time that a corporation has received payment for any of its stock, the power to adopt, amend or repeal by-laws resides in the stockholders, and that the board of directors may amend the by-laws only if the corporation, in its certificate of incorporation, confers that power upon the directors. The certificate of incorporation of musicmaker.com, Inc. does not contain such a provision. Since no stockholder vote was taken to amend the by-laws, the action purportedly taken was null and void. We assume that the purported amendment was made in error and that musicmaker.com will promptly disclose this fact. If you wish to discuss this, please call me at (212) 974-5701. Very truly yours, /s/ James Mitarotonda --------------------- James Mitarotonda -----END PRIVACY-ENHANCED MESSAGE-----