-----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, PVIFKgIT96eS7cXsBm0f1lqEX6YUCPA+MI9h3fBQh/2b7iipnB9i7+yxm1Fy8AmY tRo5Q0iHxYbY//KW2BLHlg== 0000922423-01-000057.txt : 20010123 0000922423-01-000057.hdr.sgml : 20010123 ACCESSION NUMBER: 0000922423-01-000057 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010119 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: 1511946 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.5 SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Amendment No. 5) 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 12, 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, Amendment No. 3 thereto dated January 5, 2001 and Amendment No. 4 thereto dated January 8, 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 12, 2001, musicmaker.com, BCG, Barington Capital Group, L.P., Barington Companies Equity Partners, L.P. and dot com Investment Corporation entered into a settlement agreement pursuant to which BCG and its affiliates agreed to withdraw their consent solicitation, musicmaker.com agreed to appoint Seymour Holtzman, James Mitarotonda and Joseph Wright, Jr. to musicmaker.com's board of directors, Mr. Holtzman will become chairman of the Board of musicmaker.com and effective as of January 18, 2001, Mr. Mitarotonda will become Chief Executive Officer and President of musicmaker.com. A copy of the settlement agreement will be filed by amendment hereto. On January 16, 2001, musicmaker.com issued a press release announcing the matters contained in the settlement agreement, a copy of which is attached hereto as Exhibit 8. II. Item 7 of the Schedule 13D, "Material to be Filed as Exhibits," is amended by adding the following exhibit: 8. Press release dated January 16, 2001 issued by 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 19, 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-8 2 0002.txt PRESS RELEASE EXHIBIT 8 musicmaker.com, Inc. Appoints Three New Board Members and New President and Chief Executive Officer Consent Solicitation by BCG Strategic Investors is Withdrawn RESTON. Va. -- (BUSINESS WIRE)--Jan. 16, 2001--musicmaker.com, Inc. (NASDAQ NM:HITS - news) announced today that it had appointed three new additional members to its Board of Directors, Seymour Holtzman, James Mitarotonda and Joseph Wright, Jr., bringing the total number of directors to seven. The company further announced that BCG Strategic Investors and their affiliates have agreed to withdraw their consent solicitation which had sought to, among other things, elect a majority of the company's Board of Directors. In addition, Mr. Holtzman will become Chairman of the Board, and Mr. Mitarotonda will become President and Chief Executive Officer following the resignation of the company's current Chairman, CEO, and President, Devarajan Puthukarai, on January 18, 2001. As part of this agreement, BCG also entered into a standstill agreement with the company, pursuant to which BCG and its affiliates will not purchase any additional shares of musicmaker stock or take any other action to change the composition of musicmaker's board of directors for a period of ninety days. Commenting on the agreement, Mr. Puthukarai, who will remain on the Company's Board of Directors stated, "This resolution is in the best interests of the company and all of its stockholders. It will allow us all to focus on our common goal of maximizing value in the liquidation process for stockholders." Mr. Mitarotonda stated, "We are pleased with this result. We look forward to working together with the current directors, for the benefit of all stockholders." Certain statements in this press release constitute "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 including but not necessarily limited to statements about the proposed liquidation of musicmaker.com's business and the distribution of its assets. Such forward-looking statements are subject to known and unknown risks, uncertainties and other factors which may cause actual results or performance of the Company or its distribution after liquidation to be materially different from any future results or performance indicated or implied by such forward-looking statements. Such factors include and/or concern, among other things: the failure to obtain as high a price for a particular asset of the Company sold in connection with the liquidation as might have been secured if the Company were not in liquidation; the failure to negotiate an orderly wind-down of the Company's obligations to its creditors, the effect of litigation in which the Company is involved, as well as the risks set forth in the Company's registration statement on Form S-1 dated as of July 7, 1999 as filed with the Securities Exchange Commission and the Company's Annual Report on Form 10-K dated December 31, 1999 and those other risk factors listed from time to time in the Company's other SEC filings, including but not necessarily limited to the consent revocation -18- statement opposing certain proposals and the information statement describing the Plan of Liquidation that will be filed with the Securities and Exchange Commission and mailed to stockholders. musicmaker.com, Inc. assumes no obligation to update or revise any forward-looking statements appearing in this press release. Contact: musicmaker.com Mark A. Fowler, CFO (703) 860-2289 -----END PRIVACY-ENHANCED MESSAGE-----